Work Session

Wednesday, January 22, 2014
9:00 a.m.

Texas Parks and Wildlife Department
Commission Hearing Room
4200 Smith School Road, Austin, TX  78744

Chairman Dan Allen Hughes, Jr., Commission Chair
Carter Smith, Executive Director

Approval of the Previous Minutes from the Work Session held November 6, 2013

    Land and Water Plan

  1. Update on TPWD Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan – Carter Smith
    • Internal Affairs Report
    • Easement Renewals
    • Palo Pinto Mountains State Park Development
    • State Parks and Law Enforcement Joint Training Academy
    • Wild Turkey Restoration in East Texas
    • Deepwater Horizon
    • Agency Dashboard
  2. Financial

  3. Financial Overview – Mike Jensen
  4. Commission’s Consideration of Contract Amendments – Ann Bright, Tammy Dunham
  5. WITHDRAWN – Year-From-Purchase License – Robin Riechers
  6. Diversity and Inlcusion

  7. Diversity and Inclusion Efforts – Brent Leisure, Craig Hunter
  8. Regulations—State Parks

  9. Local Park Grants – Request Permission to Publish Proposed Rule Changes in the Texas Register – Tim Hogsett
  10. Regulations—Fish and Wildlife

  11. 2014-2015 Statewide Hunting Proclamation – Request Permission to Publish Proposed Changes in the Texas Register – Clayton Wolf, Kevin Davis
  12. 2014-2015 Statewide Recreational and Commercial Fishing Proclamation - Request Permission to Publish Proposed Changes in the Texas Register - Ken Kurzawski, Robin Riechers, Brandi Reeder
  13. Exotic Species Rule Amendments regarding Draining Water from Vessels and Portable Containers Ken Kurzawski (Action Item No. 3)
  14. Rules Regarding Permits to Sell Nongame Fish Taken from Public Fresh Water – Request Permission to Publish Proposed Changes in the Texas Register – Monica McGarrity
  15. Recommended Adoption of Proposed Rules for Use of Noxious or Toxic Substances to Capture Nongame Wildlife – John Davis (Action Item No. 4)
  16. Land Conservation

  17. Grant a Conservation Easement – Grant a Conservation Easement to the City Of San Marcos along the San Marcos River as part of a bank restoration project – Corky Kuhlmann (Action Item No. 5)
  18. Acceptance of Conservation Easement Donation – Bexar County – 32 Acres at Government Canyon State Natural Area – Ted Hollingsworth (Action Item No. 6)
  19. Permitting of Driveways across Texas Parks and Wildlife Lands – Ted Hollingsworth (Executive Session Only)

Work Session Item No. 1
Presenter: Carter Smith

Work Session
TPWD Land and Water Resources Conservation and Recreation Plan
January 22, 2014

I.       Executive Summary: Executive Director Carter Smith will briefly update the Commission on the status of the agency’s efforts to implement the Land and Water Resources Conservation and Recreation Plan (the “Plan”).

II.     Discussion: In 2001, the 77th Texas Legislature directed that the Texas Parks and Wildlife Department (TPWD) develop a Land and Water Resources Conservation and Recreation Plan (Tex. Park & Wildlife Code §11.104). In 2002, the Texas Parks and Wildlife Commission (the Commission) adopted the first Plan. A revised Plan was adopted by the Commission in January 2005. In November 2009, the Commission approved a new Plan effective January 1, 2010. The 2010 Plan is available on the TPWD web site. Executive Director Carter Smith will update the Commission on TPWD’s recent progress in achieving the Plan’s goals, objectives and deliverables.

The Plan consists of the following four goals:

  1. Practice, Encourage and Enable Science-based Stewardship of Natural and Cultural Resources
  2. Increase Access To and Participation In the Outdoors
  3. Educate, Inform and Engage Texas Citizens in Support of Conservation and Recreation
  4. Employ Efficient, Sustainable and Sound Business Practices

Work Session Item No. 2
Presenter: Mike Jensen

Work Session
Financial Overview
January 22, 2014

I.       Executive Summary:  Staff will present a financial overview of the Texas Parks and Wildlife Department (TPWD).

II.     Discussion: Staff will update the Commission on revenue collected by TPWD for FY 2014 and will compare the FY 2014 budget to FY 2014 expenditures and summarize recent budget adjustments.


Work Session Item No. 3
Presenter: Ann Bright, Tammy Dunham

Work Session
Commission Consideration of Contract Amendments
January 22, 2014

I.       Executive Summary:  Staff will brief the Commission on House Bill (HB) 3648, as enacted by the 83rd Texas Legislature (2013), and provide a recommendation for ensuring compliance with the legislation.

II.     Discussion:  HB 3648, as enacted by the 83rd Texas Legislature (2013), added Texas Government Code §2155.088 requiring that a state agency’s governing body hold a meeting to consider a “material contract change” to a contract for goods or services covered by Government Code, Chapter 2155.  A “material contract change” is defined to include a change that (1) extends the contract for 6 months or more; or (2) increases the contract amount by at least 10 percent.  Department staff is recommending that a list of material contract changes subject to HB 3648 be provided to Commissioners for consideration at each regular Commission meeting, using a process similar to the process currently used for the acknowledgment of donations.  Staff will also provide information on the types of department contracts covered by HB 3648.


Work Session Item No. 4
Presenter: Robin Riechers

WITHDRAWN
Work Session
Year-From-Purchase License
January 22, 2014

I.       Executive Summary:  Staff will brief the Commission on the fiscal implications of transitioning to a year-from-purchase model for resident recreational fishing licenses.

II.     Discussion:  An interagency team is currently investigating the license-buying patterns of persons who have purchased fishing licenses based on the state fiscal year versus those who purchased a Year-From-Purchase All-Water (YFP) license.  The state fiscal year license (FY) expires on August 31st, while the YFP license expires the following year in the month in which it was purchased, and is sold for an additional $7. Analyzing the full impacts of transitioning to a YFP license involves determining if the purchaser of a YFP license is a first time license buyer or a buyer who purchased a FY license in the past, measuring the time it takes for each type of license purchaser to renew his or her license, and how frequently the purchaser purchases a license.  This information will be used to determine the implications to license sales revenue if all FY fishing licenses were transitioned to YFP licenses.


Work Session Item No. 5
Presenter: Brent Leisure, Craig Hunter

Work Session
Diversity and Inclusion Efforts
January 22, 2014

I.       Executive Summary:  Texas Parks and Wildlife Department (TPWD) serves millions of Texans and guests to the state with a full range of mission-related programs and services.  Rapidly changing demographics in the state population dictates that TPWD very strategically evaluate and adapt as necessary to engage with Texans in this very rich and diverse population landscape.  Similarly, TPWD acknowledges that the workforce at TPWD does not consistently reflect the population and communities that we serve.  TPWD considers our focused efforts to address both constituent and workforce diversity challenges a business imperative in Texas.

II.        Discussion:  Introducing all Texans to the natural and cultural resources of Texas and perpetuating our rich heritage has long been the goal of the agency.  Rapidly changing population demographics and a history of limited success in reaching a diverse constituency and attracting a diverse workforce has illuminated the need to consider new methods and a renewed focus on this important issue.  To that end, the Law Enforcement Division has developed and implemented a plan to achieve greater diversity in our Game Warden workforce to more closely reflect the state’s diverse population.  Similarly, TPWD as a whole is challenged to attract more diverse audiences to actively participate in the many programs and services offered by TPWD and to develop a workforce that also reflects this rich diversity.  Staff will provide a briefing on the agency’s efforts to strategically address both of these important initiatives.


Work Session Item No. 6
Presenter: Tim Hogsett

Work Session
Texas Recreation and Parks Account
Large County and Municipality Recreation and Parks Account
Grants Rule Amendments
January 22, 2014

I.      Summary:  Texas Parks and Wildlife Department (TPWD) staff requests that proposed revisions to Subchapters B-E of Chapter 61 be published in the Texas Register for comment.  As background, the Texas Recreation and Parks Account (TRPA) and Large County and Municipality Recreation and Parks Account (Urban Park Account) are funded through a dedication of a portion of the state sales tax on sporting goods as codified in 151.801 Tax Code.  Chapter 24 of the Texas Parks and Wildlife Code requires the adoption of rules and regulations for grant assistance and gives the Texas Parks and Wildlife Commission the authority to adopt such rules.  Programs administered as part of TRPA and Urban Park Accounts include:

  • Outdoor Recreation Grants
  • Indoor Recreation Grants
  • Small Community Grants
  • Urban Outdoor Recreation Grants
  • Urban Indoor Recreation Grants
  • Community Outdoor Outreach Program Grants

II.     Discussion:  The proposed changes are necessary due to the actions of the 83rd Texas Legislature restoring partial funding to the TRPA and Urban Park Accounts. During the last two months, staff has been preparing draft rules and regulations for administration of the TRPA for consideration by the Commission.  The last such general review of program guidelines was in 2008.  Since October 2013, the following major activities have taken place in the process of preparing draft rules:

  • October-November — Public Meetings held in Austin, Deer Park, Grand Prairie, Odessa, and McAllen
  • November — Public online survey

Proposed rule changes for the TRPA Outdoor Recreation Grants, Indoor Recreation Grants, Small Community Grants, Urban Outdoor Recreation Grants and Urban Indoor Recreation Grants include revisions in the priority scoring systems in the following general areas:

  • Local master plans
  • Diversity of park and recreation facilities
  • Access to water based recreation
  • Development funds for outdoor recreation and conservation
  • Under-served citizens
  • Partnerships
  • Land Acquisition
  • Renovation of facilities
  • Linkage of park and conservation areas
  • Cultural and historical resources
  • Funding history

Proposed rule changes for the Community Outdoor Outreach Program Grants include revisions in the priority scoring systems in the following general areas:

  • Program description
  • Priority funding elements
  • Youth at risk
  • Outdoor educational activities
  • Project action plan
  • Budget summary
  • Resolution
  • Funding history

Other administrative recommendations for all TRPA and Urban Park Accounts programs include adjustments to grant assistance ceilings recommendations to account for partial restoration of funding by the Legislature as follows:

  • Reduce TRPA Outdoor Recreation Grant funding ceiling from $500,000 to $400,000
  • Reduce Urban Park Outdoor Recreation Grant funding ceiling from $1,000,000 to $750,000
  • Reduce Community Outdoor Outreach Grant funding ceiling from $50,000 to $30,000
  • Keep TRPA Small Community Grant funding ceiling remain at $75,000

The final administrative change recommended is the continued suspension of funding for the TRPA and Urban Park Accounts Indoor Recreation Grant Programs.  Funds appropriated to these indoor programs by the 83rd Texas Legislature do not meet the threshold of $14 million per year required for funding under sections 24.006 and 24.0056 of the Parks and Wildlife Code.

TPWD staff recommends that the proposed changes be published in the Texas Register for public comment.

Attachments – 1

  1. Exhibit A – Proposed Rule Changes Text

Work Session Item No. 6
Exhibit A

GUIDELINES FOR ADMINISTRATION

TEXAS LOCAL PARKS, RECREATION, AND OPEN SPACE FUND PROGRAM

PROPOSED RULE TEXT

         §61.131. Policy. It is the Texas Parks and Wildlife Commission policy that the executive director shall administer local projects in accord with the following guidelines with interpretation of intent to be made to provide the greatest number of outdoor recreational opportunities for Texas in accord with priorities of the Texas Outdoor Recreation Plan. In keeping with this policy, local projects will not be approved from the Texas Local Parks, Recreation, and Open Space Fund and the Federal Land and Water Conservation Fund Program unless extraordinary circumstances dictate that high priority public needs will not be met without the full or partial funding of both programs.

                 (1) Section 61.81 of this title (relating to Application Procedures), the procedural guide for Land and Water Conservation Fund Program, is adopted for the Texas Local Parks, Recreation, and Open Space Fund Program.

                 (2) Section 61.121 of this title (relating to Policy), guidelines for administration of Local Land and Water Conservation Fund projects, is adopted for the Texas Local Parks, Recreation, and Open Space Fund Program, except all references to the state liaison officer shall mean the executive director.

                 (3) Section 61.81 of this title (relating to Application Procedures), the procedural guide for Land and Water Conservation Fund Program, is adopted by reference for the Texas Recreation and Parks Account [for the period September 1, 1993, through September 1, 1994]. Copies may be obtained from Texas Parks and Wildlife Department, Grants Program, 4200 Smith School Road, Austin, Texas 78744, (512) 389-4948.

                 (4) Section 61.121 of this title (relating to Policy), guidelines for administration of Local Land and Water Conservation Fund Program and guidelines for administration of Texas Local Parks, Recreation, and Open Space Fund projects are adopted by reference for the Texas Recreation and Parks Account [for the period of September 1, 1993, through September 1, 1994]. Copies may be obtained from Texas Parks and Wildlife Department, Grants Program, 4200 Smith School Road, Austin, Texas 78744, (512) 389-4948.

         §61.133. Grants for Outdoor Recreation Programs.

                 (a)Program purpose and priorities. All grant applications submitted to the department for outdoor recreation programs are evaluated for program eligibility and prioritized according to the Project Priority Scoring System set forth in this section. Scored applications are presented to the Texas Parks and Wildlife Commission for approval. In general, recommended priorities for outdoor recreation projects are:

                         (1) to ensure applicant[sponsor] performance on active grants and compliance at previously assisted grant sites;

                         (2) to recognize and reward local planning;

                         (3) to increase recreational diversity;

                         (4) to expand access to water-based[provide water-related park and]recreation opportunities and improve fish and wildlife habitat;

                         (5) to improve geographic distribution [and innovative use] of park and recreation opportunities;

                         (6) to maximize the use of funds for conservation[basic park] and recreation opportunities;

                         (7) to improve park and recreation opportunities for underserved citizens[low income (for the purposes of this section, low income is defined as median income or lower according to the most recent U.S. census (Median Household Income by State)), minority, and elderly citizens];

                         (8) to reward cooperative efforts between project applicants[sponsors] and other entities;

                         (9) to encourage the acquisition of parkland and conservation of[preserve] significant natural resources [through public land acquisition and stewardship];

                         (10) to renovate existing, obsolete [park and recreation areas and] facilities;

                         (11) to promote sustainable park design and[environmentally responsible activities and] development;

                         (12) to provide [linear greenbelt] linkages to other public park and conservation areas[parks, neighborhoods, or public facilities]; and

                         (13)[ to encourage the appreciation and preservation of cultural resources; and]

                         [(14)] to support the department’s Land and Water Resources Conservation and Recreation Plan.

                 (b) Local master plan standard requirements. Minimum master plan standards must be met to qualify for planning and priority points. Local applicants[sponsors]  may submit applications without having a department-endorsed[department-approved] master plan; however, only those applicants[sponsors] that have a TPWD endorsed[approved] park, recreation and open space master plan will receive points for completing a local plan. In addition, only proposals that address priority needs identified in [approved] plans will receive priority points under the provisions of subsection (c)(7) of this section. Master plans must have been received in an approvable format at least 60 days prior to the application submission deadline at which time credit is sought. The following are minimum master plan standards:

                         (1) Proof of adoption. The plan must be formally adopted or otherwise endorsed by act or resolution of the applicable governing body of the applicant[sponsor], and the endorsement must be included with the document.

                         (2) Jurisdiction-wide scope. The plan must be complete, comprehensive, and assess the entire jurisdiction area of the project applicant[sponsor]. County plans must cover the entire county, and city or district plans must cover the entire city or district. For large urban areas, the plan should cover the entire jurisdiction, and then may break the jurisdiction down into regions, sectors, precincts, districts, etc., as appropriate. Master plans that contemplate service delivery across more than one jurisdiction may be submitted by a local applicant[sponsor], with any necessary supplemental information, provided the plan has been formally adopted or otherwise endorsed by act or resolution of the applicable governing body of the applicant[sponsor].

                         (3) Plan duration. The plan must specifically identify the time period within which the goals and objectives of the plan are to be carried out. Plans should cover a minimum ten-year period. If a plan is more than five years old, a brief summary of plan accomplishments to date, as well as applicable updates of demographics, goals and objectives, standards, and maps must be provided to enable the department to recognize and credit program progress. Any revision of priorities other than an update of accomplishments must present a new priority listing justified by additional public input. Plans older than 10 years will be considered obsolete and new plans will be required.

                         (4) Plan content. The following information should be included in the document:

                                  (A) introduction;

                                  (B) goals and objectives;

                                  (C) plan development process (discuss when the planning process began, plan phases, public input received, survey/studies conducted, committees and/or personnel involved, etc.);

                                  (D) area/facility concepts and standards, including:

                                          (i) population/area service and acreage goals;

                                          (ii) "typical" park and facility standards; and

                                          (iii) applicable local codes, ordinances, and other requirements for community or neighborhood development.

                                  (D) inventory of existing park, recreation and open space areas and facilities (including schools).

                                  (F) needs assessment and identification. Information under this subparagraph shall be area- and facility-specific, and may include basic support facilities/infrastructure which are critical to the recreational experience. A discussion and identification of open space needs in the master plan, or a separate open space plan, shall be included.

                                  (G) prioritization of needs. Applicant shall include:

                                          (i) priority lists for outdoor and indoor needs (may be separate or combined);

                                          (ii) if necessary, a map of all specific area(s) intended for open space acquisition and preservation, identified as a need, discussed, and prioritized, if desired;

                                          (iii) where appropriate, a discussion of renovation/redevelopment needs, which may be ranked as a priority; and

                                          (iv) plan implementation recommendations, including a timeline and discussion of resources for meeting priorities (which must identify and prioritize which needs are to be met, where, and when). Any revision of priorities other than an update of accomplishments must present a new priority listing justified by additional public input.

                                  (H) illustrations, maps, charts, surveys, etc.

                 (c) Outdoor recreation project priority scoring system.

                         (1) Outdoor recreation projects presented to the commission shall be scored according to the criteria, rating factors, and point values set forth in this subsection.

                         (2) The priority ranking of a project will depend on its score in relation to the scores of other projects under consideration.

                         (3) Funding of projects will depend on the availability of TRPA funds.

                         (4) Projects which have not been approved after two considerations by the commission, without alterations to significantly raise the project score, shall be returned to the applicant[sponsor] and not accepted for resubmission.

                         (5) Each site of a multiple-site project shall be scored individually. Individual site scores will be weighted on a pro-rata share of the total budget for the entire project. All weighted scores will be added together for the total project score.

                         (6) If the applicant[sponsor] is in full compliance at previously assisted grant project sites and is progressing on schedule with all active grant projects in accordance with the provisions of this subchapter, the application will be scored and presented for award consideration. If the applicant[sponsor] does not meet the requirements of this paragraph, the application will not be scored or considered further.

                         (7) A project proposal meeting the requirements of paragraph (6) of this subsection shall be evaluated according to the extent that:

                                  (A) the applicant[sponsor] has a current department-endorsed[department-approved] master plan or other comprehensive plan on file with the department at the time of application and the project will satisfy the priority outdoor recreation needs identified in the [master] plan required by this subparagraph. [Consideration of "need" for this criterion includes basic support facilities/infrastructure critical to the park and recreation experience. Eligible support facilities/infrastructure are limited to restrooms, roads and parking, area lighting (to ensure public safety), utilities essential to eligible support facilities, irrigation, and land acquisition.] Scoring shall be as follows, up to a total of 15 points:

                                          (i) for having a current department-endorsed[department-approved] master plan on file at the time of application submission — 5 points;

                                          (ii) for satisfying 3 of the top 5[3] priority needs — 10 points;

                                          (iii) for satisfying 2 of the top 5[3] priority needs — 6 points; and

                                          (iv) for satisfying 1 of the top 5[3] priority needs — 3 points.

                                  (B) the project will provide diversity of park and recreation facilities[opportunities/facilities. Priority points for this criterion shall be awarded based on the number of park and recreation opportunities/facilities provided within the intended service area.] One point will be awarded for each type of significant and diverse recreation facility. Each facility must be identified as a need in the applicant’s[category listed in this subparagraph, provided each element is specifically identified in a] locally adopted park, recreation and open space master plan or, if the applicant[sponsor] does not have an adopted master plan, by a documented public input process, up to [a total] of 10 points. [The significant recreation categories are:]

                                          [(i) campgrounds;]

                                          [(ii) sports fields and courts;]

                                          [(iii) playgrounds (tables, pavilions, etc.);]

                                          [(iv) picnic areas;]

                                          [(v) golf courses;]

                                          [(vi) swimming facilities;]

                                          [(vii) trails;]

                                          [(viii) passive recreation (scenic overlooks, gardens, etc.);]

                                          [(ix) amphitheater;]

                                          [(x) fishing/hunting facilities; and]

                                          [(xi) natural area.]

                                  (C) the project will expand access to water-based recreation opportunities along existing natural water  bodies, provide desirable habitat conditions for fish and wildlife, and will not degrade the resource. Scoring shall be as follows, up to a total of 4 points:

                                          (i) project expands access to water-based recreation on an existing  wetland, river, continuous flow stream, pond, lake, gulf, bay, or estuary :1 point; 

                                          (ii) project preserves, restores, or  improves habitat conditions for fish and wildlife: 1 point;

                                          (iii) project is provided in an area that currently has limited public access to water-based recreation along existing natural water bodies: 1 point;

                                          (iv) project provides a link to existing natural water bodies that support water-based recreation opportunities: 1point.)[the project will provide improved natural water-based park and recreation opportunities, up to a total of 6 points. The project provides direct park and recreation or conservation opportunities which do not degrade the resource along existing quality water bodies, for no more than one of the following:]

                                          [(i) coast or lake: 6 points;]

                                          [(ii) bay or estuary: 5 points;]

                                          [(iii) river: 4 points (only water bodies named as "rivers" may receive points under this category. All others, e.g., creeks, brooks, bayous, branches, etc., are considered "streams");]

                                          [(iv) stream (continuous flow): 3 points;]

                                          [(v) pond: 2 points ("ponds" are generally man-made and no larger than five surface acres. Points will not be awarded for constructing ponds under this category.); or]

                                          [(vi) wetland: 1- 3 points, dependent upon size and quality.]

                                  (D) the project will improve the geographic distribution [or innovative use] of park and recreation lands and facilities in the project’s service area or within the applicant’s[sponsor’s] jurisdiction, up to [a total] of 10 points.

                                          (i) project provides the first public park in the applicant’s[sponsor’s] jurisdiction or intended service area: 10 points; or

                                          (ii) project provides significantly new and different park and recreation opportunities (other than school facilities)  at the project site[in the sponsor’s jurisdiction or intended service area]: 1-10 points. Points for this item shall be awarded only if specific recreation elements are identified as a need in a locally adopted park, recreation, and open space master plan or, if the applicant[sponsor] does not have an adopted master plan, by a documented public input process. Point awards shall [be based on the percentage of construction budget and will] be calculated as follows: new and different facility costs, divided by total construction costs, multiplied by 10.

                                  (E) the project maximizes the use of development funds for outdoor[facilities which provide direct park and] recreation and conservation opportunities, up to a total of 20 points, determined by dividing the direct recreational and conservation[facilities] costs[, including trees and drip irrigation,] by the total construction costs and multiplying the result by 20. ["Total Facilities Costs" includes park/recreation and support/infrastructure facilities, contingency, and all required program signage costs in excess of $1,000.]

                                  (F) the project improves park and recreation opportunities for underserved citizens[low-income, minority, and elderly,] up to 12[a total of 15] points.

                                          (i) project improves opportunities for low-income citizens based on economic and demographic data for the service area from the most recent federal census data: determined by multiplying the percentage of population qualifying as low-income by 5 [and dividing by 100]. Maximum of 5 points.

                                          (ii) project improves opportunities for minority citizens, based on economic and demographic data for the service area from the most recent census data: determined by multiplying the percentage of population qualifying as minority by 5 [and dividing by 100]. Maximum of 5 points.

                                          (iii) project provides park and recreation opportunities for physically/mentally challenged citizens, which exceed the federal and state required accessibility standards. 2 points[project improves opportunities for the elderly: 1 point for each facility or activity that is identified as a need for this special population in a locally adopted master plan or, if the sponsor does not have an adopted plan, by a documented public input process. Maximum of 5 points.]

                                  (G) the project involves documented cooperation between the applicant[sponsor] and other public or private entities to provide park and recreation opportunities at the project site(s). Maximum of 20 points.

                                          (i) project involves the contribution of resources from sources other than the applicant[sponsor], including publicly owned non-parkland, which serves as all or part of the applicant’s[sponsor’s] matching share of funds. Maximum of 15 points. Points shall be awarded on a percentage basis, determined by dividing the total outside contribution value by the total match and multiplying the result by 15.

                                          (ii) project involves cooperation between the applicant[sponsor] and other public or private entities and resources are contributed to the overall project for non-grant assisted facilities [(example: a county constructs roads/parking facilities for a city, but no grant funds are requested for roads/parking)]: 1 point per documented partner [activity], to a maximum of 5 points.

                                  (H) the project provides for the acquisition and conservation[preservation/conservation] of park and recreation lands, including publicly owned non-parkland, which consist of [regionally representative] natural resources or provides desirable [wetlands,] open space[, water access,] or needed parkland. Total point range: 0-25[1-30] points for not more than one of the following:

                                          (i) project provides for the acquisition and conservation[preservation/conservation] of a [federal, state, regional, or local] government- identified natural area which is recognized in an acceptable, published planning document for having valuable or vulnerable natural resources, ecological processes, or rare, threatened, or endangered species of vegetation or wildlife: 0-25[5-30] points, based on acreage and/or quality; or

                                          (ii) [project provides for the acquisition and preservation/conservation of a significant wetland area: 5-25 points, based on acreage and/or quality; or]

                                          [(iii)] project provides for the acquisition and conservation[preservation/conservation] of natural open space [land or water for human use and enjoyment] that is two acres or larger in size, relatively free of man-made structures [(including creek corridors, floodways, natural drainage basins, and areas which may be enhanced for native habitat)], and which is identified in an acceptable[, published,] and adopted local, jurisdiction-wide open space plan or master plan: 0-15[5-20] points, based on acreage and/or quality; or

                                          [(iv) project provides for the acquisition of land which would provide needed public access to park and recreational waters (see definitions under criteria listed in subparagraph (C) of this paragraph), 1-5 points, as determined below:]

                                                   [(I) coast or lake: 5 points;]

                                                   [(II) bay or estuary: 4 points;]

                                                   [(III) river: 3 points;]

                                                   [(IV) stream (continuous flow): 2 points;]

                                                   [(V) pond: 1 point; or]

                                          (iii)[(v)] project provides for the acquisition of needed parkland; 0-5 points. Points awarded based on the quality, size and how well the narrative justifies need. [recreational land proposed for future development: 10 points].

                                  (I) project provides for the renovation or adaptive reuse of an existing obsolete facility[park and recreation area or facilities], determined by dividing the renovation cost by the total construction cost and multiplying the result by 25. Maximum of 25 points.

                                  (J) project promotes sustainable park design[environmentally responsible activities and development by the use of activities or techniques such as xeriscape/native plant materials for landscaping, drip or treated effluent irrigation systems, energy efficient lighting systems, recycled materials for facility construction, environmental education and interpretation, significant tree plantings where no trees exist, alternative energy sources, water catchment systems, or other resource conservation measures.] Points for this category will be awarded based on how the overall project embraces sustainable techniques in the design and construction of the park, including but not limited to the diversity, innovative nature and/or cost of the project elements, up to a maximum of 10 points.

                                          (K) project provides [significant] linkage via trail to other public park and conservation areas.  Points shall be awarded based on the significance of the linkage,[i.e., trails and green corridors (not to include streets or sidewalks) to other parks and recreation areas, neighborhoods, or public facilities,] up to a maximum of 3 points.

                                          [(L) project provides park and recreation opportunities that enhance and encourage appreciation and preservation of site-based cultural (historical and archaeological) resources through interpretive facilities or preservation strategies: maximum of 3 points. Points for this item are awarded based on the significance of the enhancement.]

                                          (L)[(M)] project supports the department’s Land and Water Resources Conservation and Recreation Plan (Plan). Sponsor must address how the project meets the goals of the Plan in the proposal narrative. Up to a maximum of 5 points.

                                          (M)[(N)] applicant[sponsor] is in compliance with previously funded projects. If applicant[sponsor] is not in compliance with existing grant obligations, 5 points will be deducted from the project score.

                                          (N)[(O)] a complete application was received by the application deadline — 5 points will be awarded; or

                                          (O) applicant has never been the recipient of a grant from the Local Park Grants Program. 2 points)

         §61.134. Grants for Indoor Recreation Programs.

                 (a) Program purpose and priorities. All grant applications submitted to the department for indoor recreation programs are evaluated for program eligibility and prioritized according to the Project Priority Scoring System set forth in this section. Scored applications are presented to the Texas Parks and Wildlife Commission for approval. The priority ranking of a project depends on its score in relation to the scores of other projects under consideration. Funding of projects will depend on the availability of TRPA funds. Projects which have not been approved after two considerations by the commission, without alterations to significantly raise the project score, shall be returned to the applicant[sponsor] and not accepted for resubmission. In general, recommended priorities for indoor recreation projects are:

                         (1) to ensure applicant[sponsor] performance on active grants and compliance at previously assisted grant sites;

                         (2) to recognize and reward local planning;

                         (3) to provide indoor recreational diversity;

                         (4) to improve geographic distribution and innovative use of indoor recreation facilities;

                         (5) to reward cooperative efforts between project applicants[sponsors] and other entities;

                         (6) to provide for the renovation or adaptive reuse of existing, obsolete indoor recreation or other facilities or structures;

                         (7) to improve indoor recreation opportunities for underserved[low-income (for the purposes of this section, low income is defined as median income or lower according to the most recent U.S. census (Median Household Income by State)), minority, and elderly citizens];

                         (8) to promote sustainable park design [environmentally responsible activities] and development; and

                         (9) to support the department’s Land and Water Resources Conservation and Recreation Plan.

                 (b) Local master plan standard requirements. Minimum master plan standards must be met to qualify for planning and priority points. Local applicants[sponsors] may submit applications without having a department-endorsed[department-approved] master plan; however, only those applicants[sponsors] that have a department-endorsed[department-approved] park, recreation and open space master plan will receive points for completing a local plan. In addition, only proposals that address priority needs identified in endorse[approved] plans will receive priority points under the provisions of subsection (c) of this section. Master plans must have been received in an approvable format at least 60 days prior to the application submission deadline at which time credit is sought. The following are minimum master plan standards:

                         (1) Proof of adoption. The plan must be formally adopted or otherwise endorsed by act or resolution of the applicable governing body of the applicant[sponsor], and the endorsement must be included with the document.

                         (2) Jurisdiction-wide scope. The plan must be complete, comprehensive, and assess the entire jurisdiction area of the project applicant[sponsor]. County plans must cover the entire county, and city or district plans must cover the entire city or district. For large urban areas, plans should cover the entire jurisdiction, and then break the jurisdiction down into regions, sectors, precincts, districts, etc., as appropriate. Master plans that contemplate service delivery across more than one jurisdiction may be submitted by a local applicant[sponsor], with any necessary supplemental information, provided the plan has been formally adopted or otherwise endorsed by act or resolution of the applicable governing body of the applicant[sponsor].

                         (3) Plan duration. Plans must specifically identify the time period within which the goals and objectives of the plan are to be carried out. The plan should cover a minimum ten-year period. If a plan is more than five years old, a brief summary of plan accomplishments to date, as well as applicable updates of demographics, goals and objectives, standards, and maps must be provided to enable the department to recognize and credit program progress. Any revision of priorities other than an update of accomplishments must present a new priority listing justified by additional public input. Plans older than 10 years will be considered obsolete and new plans will be required.

                         (4) Plan content. The following information should be included in the document:

                                  (A) introduction;

                                  (B) goals and objectives;

                                  (C) plan development process (discuss when the planning process began, plan phases, public input received, survey/studies conducted, committees and/or personnel involved, etc.);

                                  (D) area/facility concepts and standards, including:

                                          (i) population/area service and acreage goals;

                                          (ii) "typical" park and facility standards; and

                                          (iii) applicable local codes, ordinances, and other requirements for community or neighborhood development;

                                  (E) inventory of existing park, recreation and open space areas and facilities (including schools);

                                  (F) needs assessment and identification. Information under this subparagraph shall be area/facility specific, and may include basic support facilities/infrastructure which are critical to the recreational experience. A discussion and identification of open space needs in the master plan, or a separate open space plan, shall be included.

                                  (G) prioritization of needs. Applicant shall include:

                                          (i) separate priority lists for outdoor and indoor needs;

                                          (ii) if necessary, a map of all specific area(s) intended for open space acquisition and preservation, identified as a need, discussed, and prioritized, if desired;

                                          (iii) where appropriate, a discussion of renovation/redevelopment needs, which may be ranked as a priority; and

                                          (iv) plan implementation recommendations, including a timeline and discussion of resources for meeting priorities (must identify and prioritize which needs are to be met, where and when). Any revision of priorities other than an update of accomplishments must present a new priority listing justified by additional public input.

                                  (H) illustrations, maps, charts, surveys, etc.

                 (c) Indoor recreation project priority scoring system. If the applicant[sponsor] is in full compliance at previously assisted grant project sites and is progressing on schedule with all active grant projects in accordance with the provisions of this subchapter, an application will be scored and presented for award consideration. If the applicant[sponsor] does not meet the requirements of this paragraph, the application will not be scored or considered further. A project proposal meeting the requirements of this paragraph shall be evaluated according to:

                         (1) whether or not the applicant[sponsor] has a current department-endorsed[department-approved] master plan on file at the time of application and the extent to which the project will satisfy the priority indoor recreation needs identified in the master plan required by this section, up to a total of 15 points:[.]

                                  (A) for having a current department-endorsed[department-approved] master plan on file at the time of application submission 5 points;

                                  (B) for satisfying 3 of the top 5[3] priority needs 10 points; and

                                  (C) for satisfying 2 of the top 5[3] priority needs 6 points;[.]

                         (2) the extent to which the project will provide diversity of public indoor recreation facilities or opportunities. Points shall be awarded based on the number of indoor recreation facilities provided. One point will be awarded for each type of recreation facility, up to a maximum of 10 points, provided that each recreation element is identified as a need in a locally adopted master plan or, if the applicant[sponsor] does not have an adopted plan, by a documented public input process;[.Points may be deducted for projects which propose support facilities which do not support recreational activities.]

                         (3) the extent to which the project will improve geographic distribution [or innovative use] of public indoor recreation facilities. Maximum of 20 points:[.]

                                  (A) project provides the first public indoor recreation facility in the applicant’s[sponsor’s] jurisdiction or intended service area: 20 points; or

                                  (B) project provides significantly new and different public indoor recreation facilities (other than school facilities) in the applicant’s[sponsor’s] jurisdiction or intended service area, based on 5 points per opportunity, provided the individual recreation elements are identified as a need in a locally adopted master plan or, if the applicant[sponsor] does not have an adopted plan, by a documented public input process. Maximum of 15 points;[.]

                         (4) the extent to which the project involves cooperation between the applicant[sponsor] and other public or private entities to provide public indoor recreation facilities at the project site. Maximum of 20 points:[.]

                                  (A) project involves the contribution of resources, including publicly owned non-parkland, from sources other than the applicant[sponsor], which serves as all or part of the applicant’s[sponsor’s] matching share of funds. Maximum of 15 points. Points shall be awarded on a percentage basis, determined by dividing the total outside contribution value by the total match and multiplying the result by 15 or ;[.]

                                  (B) project involves documented cooperation between the applicant[sponsor] and other public or private entities and/or resources are contributed to the overall project for non-grant assisted facilities [(example: a county constructs roads/parking facilities for a city, but no grant funds are requested for roads/parking)]: 1 point per documented partner[activity], to a maximum of 5 points;[.]

                         (5) the extent to which the project provides for the renovation or adaptive reuse of an existing facility, determined by dividing the renovation cost by the total construction cost and multiplying the result by 25. Maximum of 25 points;[.]

                         (6) the extent to which the project improves public indoor recreation opportunities for underserved[low-income, minority, or elderly] citizens, up to a total of 15 points:[.]

                                  (A) project improves opportunities for low-income citizens: determined by multiplying the percentage of population qualifying as low-income by 5 and dividing by 100. Maximum of 5 points;[.]

                                  (B) project improves opportunities for minority citizens: determined by multiplying the percentage of population qualifying as minority by 5 and dividing by 100. Maximum of 5 points ; or[.]

                                  (C) project improves opportunities for the physically/mentally challenged. Project provides park and recreation opportunities for physically/mentally challenged citizens, which exceed the federal and state required accessibility standards. 2 points;[elderly. Points for this item shall be awarded on the basis of recreational facility type and service or activity that is identified as a need for the special population in a locally adopted master plan or, if the sponsor does not have an adopted plan, by a documented public input process. Maximum of 5 and dividing by 100 points];[.]

                         (7) the extent to which the project promotes sustainable park design [the environmentally responsible activities] and development [by the use of activities or techniques such as xeriscape/native plant materials for landscaping, drip or treated effluent irrigation systems, energy efficient lighting systems, recycled materials for facility construction, environmental education and interpretation, significant tree plantings where no trees exist, alternative energy sources, water catchment systems, or other resource conservation measures.] Points shall be awarded based on how the overall project embraces sustainable techniques in the design and construction of the facility including diversity, innovative nature and/or cost of project elements, up to a maximum of 10 points;[.]

the diversity, innovative nature and/or cost of the project elements, up to a maximum of 10 points;[.]

                         (8) the extent to which the project supports the department’s Land and Water Resources Conservation and Recreation Plan (Plan). Applicant[Sponsor] must address how the project meets the goals of the Plan in the proposal narrative. Up to a maximum of 5 points;[.]

                         (9) applicant[sponsor] is in compliance with previously funded projects. If applicant[sponsor] is not in compliance with existing grant obligations, 5 points will be deducted from the project score;[.]

                         (10) a complete application was received by the application deadline — 5 points will be awarded to the project score; or

                         (11) applicant has never been the recipient of a grant from the Local Park Grants Program: 2 points.

         §61.135. Grants for Community Outreach Outdoor Programs.

                 (a) Program purpose and priorities. All grant applications submitted to the department for community outdoor outreach programs are evaluated for program eligibility and prioritized according to the Project Priority Scoring System set forth in this section. In general, recommended priorities for community outdoor outreach projects are:

                         (1) to ensure applicant[sponsor] compliance on previous grants;

                         (2) to improve community outdoor outreach opportunities for inner-city, rural, low-income (for the purposes of this section, low income is defined as median income or lower according to the most recent U.S. census (Median Household Income by State)), ethnic minority, female, physically/mentally challenged, and youth citizens;

                         (3) to reward partnerships between local applicants[sponsors] and other organized groups;

                         (4) to increase the number of participants served;

                         (5) to maximize the use of funds for direct community outdoor outreach opportunities;

                         (6) to reward commitment of applicant[sponsor] resources;

                         (7) to increase use of TPWD programs, personnel and facilities;

                         (8) to serve youth-at-risk;

                         (9) to promote activities related to TPWD initiatives;

                         [(10) to promote outdoor educational activities;] and

                         (10)[(11)] to reduce priority of new funding for applicants[sponsors] who have not fulfilled all previous grant reimbursement requirements.

                 (b) Community outdoor outreach program project priority scoring system.

                         (1) Community outdoor outreach projects shall be scored according to the criteria, rating factors, and point values set forth in this subsection.

                         (2) The priority ranking of a project will depend on its score in relation to the scores of other projects under consideration.

                         (3) Funding of projects will depend on the availability of TRPA funds.

                         (4) If the applicant[sponsor] is in full compliance with previously assisted grant projects in accordance with the provisions of this subchapter, the application will be scored and presented for award consideration. If the applicant[sponsor] does not meet the requirements of this paragraph, the application will not be scored or considered further.

                         (5) A project proposal meeting the requirements of paragraph (4) of this subsection shall be evaluated according to:

                                  (A) Project description: 0-5 points. Project description should provide a basic overview that:

                                          (1) allows the department to quickly determine the key points of the project (location, time, scope, rationale, etc.);

                                          (2) describes the goals and objectives of the project;

                                          (3) includes an assessment instrument for measuring project progress from initiation to completion;

                                          (4) addresses risk-management measures (safety training, first aid, etc.);

                                          (5) includes an itemized list of expenses to paid by co-op funds

                                  (B) Project Action Plan: 0-3 points. A project action plan should include:

                                          (i) a one-year timeline for the project, beginning within six months of grant approval and proceeding to completion; and

                                          (ii) a detailed description of proposed sites, dates, and planned activities.

                                  (C) Budget Summary: 0-3 points. A budget summary should explain proposed expenses and costs, the dollar value of the grant being requested, and applicant’s contribution

                                  (D) Resolution: 1 point.  An applicant is ineligible for a grant award under this subchapter unless the application includes a resolution signed by a governing board or authorized official that:

                                          (i) specifically authorizes the submission of the grant application to the department; and

                                          (ii) identifies any sponsorship contribution;

                                          (iii) designates a project official by name; and

                                          (iv) is dated. A resolution bearing a date more than one year preceding the date of submission will not be accepted.

                                  (E)[(A)] Proposed project’s primary constituency. Maximum of 15[12] points.

                                          (i) inner city (city must have population of 100,000 or greater): 2 points, based on population figures of applicant[sponsor] location (may be inner-city or rural or neither, but not both);

                                          (ii) rural (cities or counties of 20,000 or less population: 2 points, based on population figures of applicant[sponsor] location (may be inner-city or rural or neither, but not both);

                                          (iii) ethnic minority (ethnic minorities within served population greater than or equal to 50% of total served population): 3[2] points;

                                          (iv) female (females within served population greater than or equal to 50% of total served population): 3[2] points;

                                          (v) low-income greater than or equal to 50% of total served population: 3[2] points;

                                          (vi) physically/mentally challenged (includes ADD, ADHD, special education and must be stated in a number or percentage of total population served): 2 points;

                                          (vii) youth must be stated in number or percentage served (age 17 and under): 2 points.

                                  (F)[(B)] Proposed project encourages partnerships with organized groups. Application must include partnership letters from the partnering organization. Letters of endorsement will not receive credit. One point shall be awarded for each partnership agreement that commits cash contributions, volunteer labor, program materials, physical facilities use, transportation, food, etc. Letters must be current, dated, signed and state what the partners are providing to the program as well as the value of the contribution applicable. Maximum of 4 points.

                                  (G)[(C)] Number of program participants the proposed project will serve. One point awarded per 25 persons served, up to a maximum of 10 points.

                                  (H)[(D)] The extent to which the proposed project prioritizes direct service costs. Points shall be awarded on a percentage basis, determined by dividing the direct service delivery costs by the total project cost and multiplying the result by 10. Maximum of 10 points.

                                  (I)[(E)] The extent to which the applicant’s[sponsor’s] funds and resources are committed to the project. Points shall be awarded on a percentage basis, determined by dividing the local/applicant[local/sponsor] funds by the total project cost and multiplying the result by 4. Applicant[Sponsor] must provide auditable proof of the contribution. Maximum of 4 points.

                                  (J)[(F)] The extent of the proposed project’s direct relationship with TPWD programs and/or facilities. Maximum of 5 points. One point shall be awarded per instance of:

                                          (i) TPWD facility used (must name each department facility);

                                          (ii) TPWD personnel involvement (must provide letter of coordination from TPWD staff); and/or

                                          (iii) TPWD program provided (must identify each program).

                                  (K)[(G)] Project specifically serves at-risk youth. [A definition of at-risk youth for the target audience must be included, as well as a description of each activity designed to serve at-risk youth.] Maximum of 4 points, as follows:

                                          (i) one point[shall be awarded] for each activity serving at-risk youth through natural resource mentoring programs; and

                                          (ii) two points for each activity serving at-risk youth through natural resource career development programs;  [as defined in the project (e.g., tutoring, mentoring, self-esteem building, career development, leadership development, etc.). Maximum of 3 points.]

                                  (L)[(H)] Project proposes activities related to TPWD initiatives. One point shall be awarded for each proposed activity related to a TPWD initiative (e.g., fishing, camping, hunting, environmental education, or other outdoor activity). Maximum of 5 points.

                                  [(I) Project promotes outdoor educational activities. Each educational element must be demonstrated by a discussion of the educational goals and objectives to be employed as they pertain to outdoor/environmental education. Maximum of 4 points. Points will be awarded according to the curriculum’s potential to increase participants’:]

                                           [(i) awareness;]

                                          [(ii) knowledge, skills, and abilities;]

                                          [(iii) critical thinking; and]

                                          [(iv) behavioral change.]

                                  (M)[(J)] Project includes an outdoor service project. Eligible service projects must be related to the department’s mission. Projects must be described in detail and must include a partnership letter from the involved entities or organizations. Examples of eligible service projects include but are not limited to: trail or habitat restoration, planting native vegetation, wildlife monitoring, students mentoring students and building/distributing bird houses. Maximum of 3 points. Points will be awarded on the following criteria:

                                          (i) environmental/conservation needs addressed by the proposed service project and how the proposed service project will address the needs identified in subparagraph (E)[(A)] of this paragraph;

                                          (ii) the direct involvement of youth in the planning and problem solving process; and

                                          (iii) the prospective impact of the service project on youth and the community.

                                  (N)[(K)]  Applicant has fulfilled all previous community outdoor outreach grant reimbursement requirements. If no, deduct points from the application score determined by multiplying the remaining unspent grant balance by .0015 percent.

                                  (O) Applicant has never been the recipient of a grant from the Community Outdoor Outreach Program: 1 point.

         §61.136. Small Community Grant Program.

                 (a) Program purpose and priorities. All grant applications submitted to the department for the small community grant program are evaluated for program eligibility and prioritized according to the Project Priority Scoring System set forth in this section. Scored applications are presented to the Texas Parks and Wildlife Commission for approval. In general, recommended priorities for small community projects are:

                         (1) to ensure applicant[sponsor] performance on active grants and compliance at previously assisted grant sites;

                         (2) to reward the smallest communities;

                         (3) to improve geographic distribution [and innovative] use of park and recreation opportunities;

                         (4) to maximize the use of funds for outdoor [basic park and] recreation and conservation opportunities;

                         (5) to improve park and recreation opportunities for under-served citizens [low income (for the purposes of this section, low income is defined as median income or lower according to the most recent U.S. census (Median Household Income by State)), minority, and elderly citizens];

                         (6) to reward cooperative efforts between small communities and other governmental, educational, or private sector entities;

                         (7) to renovate existing, obsolete [park and recreation areas and] facilities;

                         (8) to promote sustainable park design [environmentally responsible activities] and development; and

                         (9) to support the department’s Land and Water Resources Conservation and Recreation Plan.

                 (b) Small communities project priority scoring system.

                         (1) Small community projects presented to the commission shall be scored according to the criteria, rating factors, and point values set forth in this subsection.

                         (2) The priority ranking of a project will depend on its score in relation to the scores of other projects under consideration.

                         (3) Funding of projects will depend on the availability of TRPA funds.

                         (4) Projects which have not been approved after two considerations by the commission, without alterations to significantly raise the project score, shall be returned to the applicant[sponsor]and not accepted for resubmission.

                         (5) Each site of a multiple-site project shall be scored individually. Individual site scores will be weighted on a pro-rata share of the total budget for the entire project. All weighted scores will be added together for the total project score.

                         (6) If the applicant[sponsor] is in full compliance at previously assisted grant project sites and is progressing on schedule with all active grant projects in accordance with the provisions of this subchapter, the application will be scored and presented for award consideration. If the applicant[sponsor] does not meet the requirements of this paragraph, the application will not be scored or considered further.

                         (7) A project proposal meeting the requirements of paragraph (6) of this subsection shall be evaluated according to the extent that:

                                  (A) the population of the applicant[sponsor] is 2,500 or less (based on the most recent federal census data). Three points will be awarded if the community population is 2,500 or less.

                                  (B) the project will improve the geographic distribution [or innovative use] of park and recreation lands and facilities in the project’s service area or within the applicant’s[sponsor’s] jurisdiction, up to a maximum of 10 points.

                                          (i) the project provides the first public park in the applicant’s[sponsor’s] jurisdiction or intended service area: 10 points; or

                                          (ii) the project provides significantly new and different park and recreation opportunities (other than school facilities) at the project site. One point per facility identified by documented public input process to be a need: up to 3 points. Points for this criteria will be awarded only if each recreation element is identified by a documented public input process.

                                  (C) the project maximizes the use of development funds for outdoor and conservation[facilities which provide direct park and recreation] opportunities, up to a maximum of 10 points, as determined by dividing the direct recreational and conservation [facilities] costs by the total construction costs and multiplying the result by 10. ["Total Facilities Costs" include park and recreation facilities, support and infrastructure facilities, contingency costs, and all required program signage costs in excess of $1,000.]

                                  (D) the project improves park and recreation opportunities for under-served [low-income, minority, and elderly] citizens, up to a maximum of 12[15] points.

                                          (i) the project improves opportunities for low-income citizens (based on economic and demographic data for the service area from the most recent federal census data). Points will be calculated [as determined] by multiplying the percentage of population qualifying as low income by five. Maximum of five points.

                                          (ii) the project improves opportunities for minority citizens (based on economic and demographic data for the service area from the most recent federal census data). Points will be calculated [as determined] by multiplying the percentage of population qualifying as minority by five. Maximum of five points.

                                          (iii) the project provides park and recreation opportunities for physically/mentally challenged citizens, which exceed the federal and state required accessibility standards. 2 points)[the project improves opportunities for the elderly. One point is awarded for each facility or activity that is identified as a needed recreational opportunity for this special population by a documented public input process. Maximum of five points.]

                                  (E) the project involves documented cooperation between the applicant[sponsor] and other public or private entities to provide park and recreation opportunities at the project site(s). Maximum of 10 points.

                                          (i) the project involves the contribution of resources from sources other than the applicant[sponsor], including publicly owned non-parkland, which serves as all or part of the applicant’s[sponsor’s] matching share of funds. Up to five points may be awarded on a percentage basis, as determined by dividing the total outside contribution value by the total match and multiplying the result by five.

                                           (ii) the project involves cooperation between the applicant[sponsor] and other entities where resources are contributed to the overall project for non-grant assisted facilities [(example: a county constructs roads/parking facilities for a city, but no grant funds are requested for roads/parking)]: one point per documented partner[activity], up to a maximum of five points.

                                  (F) the project provides for the renovation of an existing obsolete park and recreation area or facilities, as determined by dividing the renovation cost by the total construction cost and multiplying the result by ten. Maximum of ten points.

                                  (G) the project promotes sustainable park design and development[environmentally responsible activities and development through the use of activities or techniques such as xeriscape/native plant materials, drip or treated effluent irrigation systems, energy efficient lighting systems, recycled materials for facility construction, environmental education and interpretation, significant tree plantings where no trees exist, alternative energy sources, water catchment systems, or other resource conservation measures.] Points for this category will be awarded based on how the overall project embraces sustainable techniques in the design and construction of the park, including but not limited to the diversity, innovative nature and/or cost of the project elements, up to a maximum of 5 points.

                                  (H) project supports the department’s Land and Water Resources Conservation and Recreation Plan (Plan). Applicant[Sponsor] must address how the project meets the goals of the Plan in the proposal narrative, up to a maximum of 2 points.

                                  (I) applicant[sponsor] is in compliance with previously funded projects. If applicant[sponsor] is not in compliance with existing grant obligations, 5 points will be deducted from the project score.

                                  (J) a complete application was received by the application deadline — 5 points will be awarded to the project score.

                                  (K) applicant has never been the recipient of a grant from the Local Parks Grants Program – two points will be awarded to the project score[sponsor is not in compliance with previously funded projects, if not, (-5) points will be deducted from the project score].

            §61.138 Outdoor Urban Park Grants Program

                        (a) Program purpose and priorities. All Urban Park Program Outdoor Recreation Grant Program applications are evaluated for program eligibility and prioritized according to the Project Priority Scoring System set forth in this section. Multiple-site projects are allowed and will be scored as one project. A project’s priority ranking depends on its score in relation to the scores of other projects under consideration. Scored applications are presented to the Texas Parks and Wildlife Commission (Commission) for approval. Funding of projects will depend on the availability of funds.

                        (b) A project that has been considered twice by the Commission but not approved will not be considered again unless it has been significantly altered to raise the project score.

                        (c) Points will be awarded based on the compatibility of project elements with the scoring criteria in this subsection.

                                    (1) Acquisition. The project proposes to acquire land that would satisfy one or more of the following:

                                                (A) significant natural area. An area that is significant for a relatively undisturbed ecosystem that exhibits regionally representative geological, floral, faunal, or hydrological features and has the potential to serve regional or statewide recreation needs. Natural areas can serve as: greenbelts/open spaces; locations for passive activities; preservation areas for unique natural features; and interpretive sites which highlight or explain ecosystem processes (points based on acreage and quality) - (1-4 points);

                                                (B) green corridor/connectivity to existing protected areas (points based on acreage and quality) - (1-4 points);

                                                (C) pocket park. Pocket parks are defined as 1 acre or less  in size with a service area of  ¼ mile (2 points)[New parkland or additions to existing parkland in urban centers – (1-2 points)]);

                                                (D) intensive-use recreation facility such as an athletic complex – (2 points)[(1-2 points)];

                                                (E) future conservation and recreation purposes that initially provide limited public access – (points based on quality and size)(1-4 points);

                                                (F) expansion (to include in-holdings) of existing parks and conservation areas -  (2 points)[(1- 2 points)];

                                                (G)  adaptive reuse for recreation or conservation of lands that have limited use in their existing state — (1 point); and

                                                [(H) proximity to areas of high population density — (1 point).]

                                    (2) Development. Project proposes development of one or more of the following:

                                                (A) neighborhood park. Neighborhood park is defined as 1-15 acres in size with a service area of ½ mile. (3 points)[(1-3 points)];

                                                (B) nature center (natural-resource-based sites developed for outdoor recreation and education purposes such as trails, wildlife viewing, interpretive signage, etc.) NOTE: Indoor facilities are not eligible under this program. (2 points)[(1-2 points)];

                                                (C) park and conservation area of regional significance (project is a component of a comprehensive or park and recreation master plan for 1 or more political jurisdictions)  (2points) [(1-2 points)];

                                                (D) [green construction/sustainability (1 point);]

                                                [(E)] multi-purpose recreation facility (1 point); and

                                                (E)[(F)] outdoor aquatic recreation (1 point).

                                    (3) Restoration. Project provides for the (restoration and/or) renovation of existing [recreation and conservation] infrastructure (or other facilities) that is no longer usable for its intended or original purpose:

                                                (A) restoration of existing infrastructure. Points will be awarded based on percentage of the budget dedicated to the criterion (Renovation Cost divided by the Total Construction Cost multiplied by ten) — (1-10 points);

                                                (B) [wildlife habitat management (removal of invasive species or significant planting of native species resulting in the restoration of wildlife habitat). Points will be awarded based on percentage of the budget dedicated to the criterion — (1-10 points);]

                                                [(C)] adaptive reuse of existing structures and facilities to provide new or different recreation opportunities (use of an existing slab from a demolished building as a recreation court, the reuse of a bridge for recreation purposes, remediated brownfield, etc.). Points will be awarded based on the percentage of the total budget dedicated to the criterion (Reuse Costs divided by Total Construction Costs multiplied by five) — (1-5 points);

                                    (4) Trails/Corridors/Greenways. Project proposes one or more of the following (points  awarded based on length of trail):

                                                (A) major linear development (1 mile or longer) — (1-6 points);

                                                (B) development that connects or extends an existing trail system or wildlife corridor — (1-5 points);

                                                (C) major loop development (1 mile or more) — (1-4 points);

                                                (D) neighborhood/loop trail development — (1-4 points);

                                                (E) off-road trail development for non-motorized use — (1-2 points);

                                                (F) aquatic paddling trail development — (1-2 points);

                                                (G) interpretive nature trail development — (1-2 points);

                                    (5) Sports Facilities. Project proposes the development of one or more of the following:

                                                (A) large capacity, intensive-use sports facility — (7 points);

                                                (B) competition or practice facilities in close proximity to users (3 points);

                                    (6) Underserved Populations. Project provides for one or more of the following:

                                                (A) more equitable geographic distribution of facilities. Project proposal shall provide a map showing current distribution of parks in entire service area to support a need in a particular location[include a map showing the locations of existing parks in the sponsor’s entire service area to justify additional facility] — (4 points);

                                                (B)project improves opportunities for low-income citizens based on the economic demographic information of the service area from the most recent census data, determined by multiplying the percentage of population qualifying as low-income by 2 (0-2 points);[improved park or recreation opportunities for low-income citizens (for the purposes of this section, low income is defined as median income or lower according to the most recent U.S. census (Median Household Income by State)). Project proposal must include an economic analysis of the relevant population demographics of the service area — (2 points);]

                                                (C) project improves opportunities for ethnic minority citizens based on the demographic information of the service area from the most recent census data: determined by multiplying the percentage of population qualifying as ethnic minority by 2 – (0-2 points);

[improved park or recreation opportunities for minority citizens. Project proposal must include a demographic analysis of the target population within the service area — (2 points);]

                                                (D) (Project provides park and recreation opportunities for physically/mentally challenged citizens, which exceed the federal and state required accessibility standards. 2 points)[improved park or recreation opportunities for elderly citizens. Project proposal must demonstrate compatibility with the sponsor’s master plan or public input process — (2 points);]

                                    (7) (joint efforts and partnerships)

                                                (A) Project involves public-public or public-private cooperation based on the percentage of the budget contributed by partners. Points are calculated by dividing the Partner Contribution by the Total Budget and multiplying by five. (0-5 points)

                                                (B) Number of partners involved in the project (not necessarily monetary in nature).  The role of the partners must be explained.  No programming-only related partnership points will be awarded based on the following:[Joint ventures/partnerships. Project involves public-public or public-private cooperation (award is based on the percentage of the total budget contributed by partners; however, points are awarded based on all partners and not solely on the partners making a monetary contribution). The role of each partner must be explained. Application must include a partnership letter from each partnering organization or a current written and signed agreement between the project sponsor and each proposed partnership group. Partnerships that are programming-only will not be awarded. 1- 5 points may be awarded on the basis of the number of partners, as follows:] three partners — (1 point); four partners (2 points); or five or more partners (3 points).

                                    (8) Master plan. Points will be awarded for planning, as follows:

                                                (A) project applicant[sponsor] has a locally adopted and department-approved parks, recreation and open space master plan that addresses outdoor recreation needs — (5 points); or

                                                (B) project satisfies (1)[ 3] of the top (5)[3] priority needs – ( 5)[10] points.[;]

                                                [(C) project satisfies 2 of the top 3 priority needs — 6 points; or]

                                                [(D) project satisfies 1 of the top 3 priority needs — 3 points.]

                                    (9) Threat. Project reduces the threat to the public availability of a conservation or recreation opportunity. The project narrative must include a discussion of the particular compelling circumstances involving the project, such as imminent loss of opportunity, or time-sensitive economic factors (i.e. loss of potential funding partner if action is not undertaken quickly)[, a significant safety hazard, or needed restoration (without which the facility could be deemed unusable.) Basic maintenance is not an eligible expense].

                                                (A) no evidence of threat is presented — (0 points);

                                                (B) minimal threat; the conservation or recreation opportunity appears to be in no immediate danger of loss in the next 36 months — (1 point);

                                                (C)  actions under consideration[action in progress that] could result in the conservation or recreation opportunity becoming unavailable for public use — (2 points); and

                                                (D) actions will be taken[action in progress]  that will result in the conservation or recreation opportunity becoming unavailable for future public use or a threat situation has occurred or is imminent that will result in the acquisition of rights to the land by a land trust at the request of the applicant — (3 points).

                                    (10) Historical/cultural resource. Project provides park and recreation opportunities that enhance and encourage appreciation and preservation of site-based cultural, natural, historical or archaeological resources by means of interpretation, facilities, or preservation strategies — (2 points).

                                    (11) Consistency with Land and Water Conservation Plan (up to 10 points). Sponsor must specifically describe how the project meets the goals of the Land and Water Conservation Plan.

                                    (12) Compliance.

                                                (A) applicant[sponsor] is not in compliance with previously funded projects — (5 points deducted from total score).

                                                (B) complete application received by the application deadline — (5 points).

                                    (13) Urban biologist consultation. Applicant has consulted with an urban biologist from the department regarding the proposed site plan at least 30 days prior to the application deadline and the biologist’s comments are included in the application materials — (5 points).

                                    (14) Sustainable park design and development. The project embrace sustainable techniques in the design and construction of the park or includes wildlife habitat improvement/restoration. Points will be awarded based on diversity, innovative nature and/or cost of the project elements. (1-10 points) (See chapter 8 Sustainable Park Design in the 2012 Texas Outdoor Recreation Plan for additional information.)  

         §61.139. Indoor Urban Park Grants Program.

                 (a) Program purpose and priorities. All Urban Park Program Indoor Recreation Grant Program applications are evaluated for program eligibility and prioritized according to the Project Priority Scoring System set forth in this section. Multiple-site projects are allowed and will be scored as one project. Individual site scores will be weighted on a pro-rata share of the total project score. A project’s priority ranking depends on its score in relation to the scores of other projects under consideration. Scored applications are presented to the Texas Parks and Wildlife Commission (Commission) for approval. Funding of projects will depend on the availability of funds.

                 (b) A project that has been considered twice by the Commission but not approved will not be considered again unless it has been significantly altered to raise the project score.

                 (c) Points will be awarded based on the compatibility of project elements with the scoring criteria in this subsection.

                         (1) Development. Project proposes development of one or more of the following:

                                  (A) nature center that provides natural resource conservation or environmental education visitor experiences — (5 points);

                                  (B) [green construction/sustainability — (1 point);]

                                  [(C)] multi-purpose recreation facilities — (1 point);

                                  (C)[(D)] diverse recreation facilities within the applicant’s[sponsor’s] jurisdiction — (one point will be awarded for each type of significant recreation opportunity, up to 3 points);

                 (2) Restoration. Project provides for the renovation of existing recreation and conservation facilities that are[infrastructure that is] no longer usable for the[its] intended or original purpose (renewal or revival of existing facilities. Basic maintenance is not an eligible expense);

                                  (A) restoration of an existing structure. Points will be awarded based on percentage of the budget dedicated to restoration — (1-15 points);

                                  (B) adaptive reuse of existing structure or facility to provide new or different recreation opportunities (Points will be awarded based on the percentage of the budget dedicated to the adaptive reuse) — (1-10 points);

                 (3) Underserved populations. Project provides for one or more of the following:

                         (A) more equitable geographic distribution of facilities. Project proposal shall include a map showing the current distribution of parks in the entire service area to support a need in a particular location [the locations of existing parks in the applicant’s[sponsor’s]  entire service area to justify additional facility] — (4 points);

                         (B) project improves opportunities for low-income citizens based on economic and demographic data for the service area from the most recent federal census data: determined by multiplying the percentage of population qualifying as low-income by 2. (0-2 points)[improved park or recreation opportunities for low-income citizens (for the purposes of this section, low income is defined as median income or lower according to the most recent U.S. census (Median Household Income by State)). Project proposal must include an economic analysis of the relevant population demographics of the service area — (2 points)];

                         (C) project improves opportunities for minority citizens based on economic and demographic data for the service area from the most recent federal census data: determined by multiplying the percentage of population qualifying as minority by 2. (0-2 points)[improved park or recreation opportunities for minority citizens. Project proposal must include a demographic analysis of the target population within the service area — (2 points)];

                                  (D) Project provides park and recreation opportunities for physically/mentally challenged citizens, which exceed the federal and state required accessibility standards — 2 points[improved park or recreation opportunities for elderly citizens. Project proposal must demonstrate compatibility with the sponsor’s master plan or public input process — (2 points)];

                         (4) Joint efforts/partnerships.

                                  (A) (Project involves public-public or public-private cooperation based on the percentage of the budget contributed by partners. Points are calculated by dividing the Partner Contribution by the Total Budget and multiplying by five. (0-5 points)

                                  (B) (Number of partners involved in the project (not necessarily monetary in nature).  The role of the partners must be explained.  No programming-only related partnership points will be awarded based on the following:[Project involves public-public or public-private cooperation (award is based on the percentage of the total budget contributed by partners; however, points are awarded based on all partners and not solely on the partners making a monetary contribution). The role of each partner must be explained. Application must include a partnership letter from each partnering organization or a current written and signed agreement between the project sponsor and each proposed partnership group. Partnerships that are programming-only will not be awarded. 1-3 points may be awarded on the basis of the number of partners, as follows:]

                                  (A) three partners — (1 point);

                                  (B) four partners (2 points); or

                                  (C) five or more partners (3 points).

                         (5) Master plan. Points will be awarded for planning, as follows:

                                  (A) project applicant[sponsor] has a locally adopted and department-endorsed[department-approved] parks, recreation and open space master plan that addresses outdoor recreation needs — (5 points);

                                  (B) project satisfies 1[3] of the top 5[3] priority needs – 5[10] points;

                                  [(C) project satisfies 2 of the top 3 priority needs — 6 points; or]

                                  [(D) project satisfies 1 of the top 3 priority needs — 3 points.]

                         (6) Threat. Project reduces the threat to the public availability of a recreation opportunity. The project narrative must include a discussion of the particular compelling circumstances involving the project, such as imminent loss of opportunity or[,] time-sensitive economic factors (i.e. loss of potential funding partner if action is not undertaken quickly)[, a significant safety hazard, or needed restoration (without which the facility could be deemed unusable.) Basic maintenance is not an eligible expense].

                                  (A) no evidence of threat is presented — (0 points);

                                  (B) minimal threat; the recreation opportunity appears to be in no immediate danger of loss in the next 36 months — (1 point);

                                  (C) action in progress that could result in the recreation opportunity becoming unavailable for public use — (2 points); and

                                  (D) action in progress that will result in the recreation opportunity becoming unavailable for future public use or a threat situation has occurred or is imminent that will result in the acquisition of rights to the land by a land trust at the request of the applicant — (3 points).

                         (7) Historical/cultural resource. Project provides park and recreation opportunities that enhance and encourage appreciation and preservation of site-based cultural, natural, historical or archaeological resources by means of interpretation, facilities, or preservation strategies — (2 points).

                         (8) Consistency with Land and Water Conservation Plan (up to 10 points). Applicant[Sponsor] must specifically describe how the project meets the goals of the Land and Water Conservation Plan.

                         (9) Compliance.

                                  (A) applicant[sponsor] is not in compliance with previously funded projects — (5 points deducted from total score).

                                  (B) complete application received by the application deadline — (5 points).

                         (9) Urban biologist consultation. Applicant has consulted with an urban biologist from the department regarding the proposed site plan at least 30 days prior to the application deadline and the biologist’s comments are included in the application materials — (5 points).

                         (11) Sustainable park design and development. The project embraces sustainable techniques in the design and construction of the facility. Points will be awarded based on diversity, innovative nature and/or cost of the project elements — (1-10 points).


Work Session Item No. 7
Presenter: Clayton Wolf
Kevin Davis

Work Session
2014-2015 Statewide Hunting Proclamation
January 22, 2014

I.       Executive Summary:  This item seeks permission to publish proposed amendments to the Statewide Hunting Proclamation in the Texas Register for public comment.  The proposed amendments:

  • Implement an archery-only open season and 16-day general season for mule deer in Knox County, where the season is currently closed;
  • Implement a nine-day general season for mule deer in Castro, Hale, Lubbock, and Lynn counties, where the season is currently closed;
  • Clarify rules regarding utilization of antlerless mule deer permits;
  • Shorten the current year-round open season for desert bighorn sheep by one month and eliminate the requirement of a landowner affidavit for skulls and horns found in the wild;
  • Extend squirrel season in 51 East Texas counties;
  • Eliminate bag and possession limits for squirrel in 12 counties in the Blacklands Prairie;
  • Allow the take of squirrel by means of air rifles meeting minimum standards;
  • Implement rules allowing use of mobile technology by hunters to check harvested Eastern turkeys;
  • Clarify rules governing possession of firearms while hunting deer or turkey during an open archery season;
  • Make other nonsubstantive changes as necessary.

II.     Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61.  The potential changes are based upon statutory requirements and Commission policy, including scientific investigation and required findings of fact where applicable.  The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

Attachments – 1

  1. Exhibit A – Proposed Statewide Hunting Proclamation

Work Session Item No. 7
Exhibit A

2014-2015 STATEWIDE HUNTING PROCLAMATION

PROPOSAL PREAMBLE

 1. Introduction.

         The Texas Parks and Wildlife Department (the department, or TPWD) proposes amendments to §§65.10, 65.11, 65.32, 65.42, 65.46, 65.48, and 65.64, concerning the Statewide Hunting Proclamation.

         The proposed amendment to §65.10, concerning Possession of Wildlife Resources, would eliminate current subsection (l)(2)(C), regarding possession of desert bighorn sheep skull/horns from rams that are found in the wild. Under current rule, a person who wishes to possess the skull/horns of a desert bighorn ram found dead in the wild may do so, provided the person did not cause or participate in the death of the ram, has notified the department within 48 hours of discovering the ram and arranged to have the skull marked with an identification plug, and acquires an affidavit from the landowner attesting to the place and date that the person discovered the ram.  The affidavit requirement was promulgated in 2003 during the early stages of the department’s efforts to restore desert bighorn sheep and was intended to document desert bighorn sheep mortality for purposes of analyzing population status. Because the restoration effort has been quite successful, staff has determined that the affidavit requirement is no longer necessary.

         The proposed amendment to §65.11, concerning Lawful Means, would clarify rules governing possession of firearms while hunting deer or turkey during an open archery season and make air guns meeting certain specifications lawful for the take of squirrel.

         Under current rule, it is an offense for any person to be in possession of a firearm while hunting deer or turkey with a broadhead hunting point during an archery-only season. The purpose of the rule is to prevent unscrupulous persons from using firearms during archery-only seasons. By policy, the department has historically allowed persons licensed to carry a concealed handgun under the provisions of Government Code, Chapter 411, Subchapter H, to be in possession of a handgun while hunting during an archery season. The proposed amendment would clarify that policy in rule.

         The proposed amendment to §65.11 also would create new paragraph (4) to allow the use of air rifles to hunt squirrel. The department received a petition for rulemaking earlier this year requesting that air rifles be designated a lawful means for the take of squirrel. The department has determined that modern air rifles have achieved ballistic performance characteristics that approximate those of rimfire ammunition at close ranges and are capable of humanely killing squirrels at such distances. Therefore, the proposed new paragraph would allow the use of air rifles to take squirrel, provided the rifle is designed to be fired from the shoulder, the projectile size is a minimum of .177 caliber (4.5mm), and the projectile is delivered by means of the force of a spring, air, or non-ignited compressed gas at a muzzle velocity of no less than 600 feet per second. The department selected the minimum projectile size and muzzle velocity on the basis of creating a reasonable likelihood of instant lethality.

         The proposed amendment to §65.32, concerning Antlerless Mule Deer, would clarify the utilization of antlerless mule deer permits. The antlerless mule deer permit is available to landowners and land managers who do not wish to participate in the managed lands permit program but who wish to harvest surplus antlerless mule deer. The department reasons that because by current rule the harvest of antlerless mule deer on any property is by permit only, there is no biological reason to restrict either the take of multiple antlerless mule deer by a single hunter or the season in which the harvest occurs (i.e., archery season or general season). The proposed amendment would allow antlerless mule deer permits to be used during any open season for mule deer without respect to bag limits; however, permit utilization during an archery-open season would still be required to be by means of lawful archery equipment or crossbow.

         The proposed amendment to §65.42, concerning Deer, would eliminate the list of counties in subsection (b)(15) and replace it with language to the effect that in all counties not specifically designated as having an open season, there is no open season. By implementing a generic statement the department eliminates the need to modify the list by rule as seasons are implemented or closed.

         The proposed amendment to §65.42 also would amend subsection (c) to open an archery-only special season and 16-day general open season for mule deer in Knox County and a 9-day general open season for mule deer in Castro, Hale, Lubbock and Lynn counties. The majority of the landscape utilization in the affected counties is large-scale farming and grazing operations, but survey data indicate the existence of mule deer populations that can sustain hunting pressure in those areas where suitable mule deer habitat exists.  The literature suggests that the implementation of a buck-only season will have no measurable impact on herd productivity or expansion; however, a measurable change in the age structure of the buck segment of the population is possible if there is intense harvest pressure. If adopted, the new seasons would create increased hunter opportunity with no measurable effect on reproduction or distribution of mule deer populations in these counties. The proposed archery/16-day general season in Knox County was selected to be consistent with surrounding counties that have similar habitat, land use, and population dynamics. The proposed season for Castro, Hale, Lubbock and Lynn counties was chosen for the same reason.

         The proposed amendment to §65.46, concerning Squirrel: Open Seasons, Bag, and Possession Limits, would eliminate bag and possession limits in the counties listed in subsection (a), which has the effect of making the season in those counties identical to the season prescribed in current subsection (c). The proposed amendment also would lengthen the squirrel season for the counties listed in subsection (b) by extending the winter segment of the season for approximately three weeks, to the last Sunday in February. The proposed amendment is intended to increase hunter opportunity and no negative biological impacts are anticipated.

         The proposed amendment to §65.48, Desert Bighorn Sheep: Open Season and Annual Bag Limit, would shorten the open season from 12 months to 11 months in length. The department typically conducts bighorn sheep population surveys in August. Because of the mountainous and remote nature of bighorn sheep habitat, population surveys must be conducted from helicopters. The department has encountered several situations in which hunting activities were inadvertently adversely affected by department survey efforts. By closing the season at the end of July, the department believes these situations can be avoided. The proposed amendment, if adopted, would also provide the benefit of precluding the accidental over-issuance of permits due to post-survey harvest.

         The proposed amendment to §65.64, concerning Turkey, would allow hunters to perform the mandatory registration of harvested Eastern turkey via the department’s internet or mobile application. The department has developed computer and mobile device based applications that make it possible for hunters to register harvested birds without having to physically present the birds at check stations.

2. Fiscal Note.

         Mr. Clayton Wolf, Wildlife Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Mr. Wolf also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the dispensation of the agency’s statutory duty to protect and conserve the wildlife resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices.

         (B) There will be no adverse economic effect on persons required to comply with the rule as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that the proposed rule will not directly affect small businesses or micro-businesses.  The proposed amendments affect the regulation of recreational license privileges that allow individual persons to pursue and harvest mule deer and pronghorn antelope. The proposed amendments would not directly regulate any business and would not impose recordkeeping or reporting requirements; impose taxes or fees; affect sales, profits, or market competition; or require the purchase or modification of equipment or services by small businesses or microbusinesses. Therefore, the department therefore has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

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

4. Request for Public Comment.

         Comments on the proposed rules may be submitted by phone or e-mail to Robert Macdonald (512) 389-4775; e-mail: robert.macdonald@tpwd.state.tx.us, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744. Comments also may be submitted via the department’s website at http://www.tpwd.state.tx.us/business/feedback/public_comment/.

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 42, which allows the department to issue tags for animals during each year or season; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

         The proposed amendment affects Parks and Wildlife Code, Chapters 42 and 61.

6. Rule Text.

         §65.10. Possession of Wildlife Resources.

                 (a) – (k) (No change.)

                 (l) The identification requirements for desert bighorn sheep skulls are as follows.

                         (1) No person may possess the skull of a desert bighorn ram in this state unless:

                                  (A) one horn has been marked with a department identification plug by a department representative; or

                                  (B) the person also possesses evidence of lawful take in the state or country where the ram was killed.

                          (2) A person may possess the skull and horns of a desert bighorn ram found dead in the wild, provided:

                                  (A) the person did not cause or participate in the death of the ram; and

                                  (B) the person notifies a department biologist or game warden within 48 hours of discovering the dead ram and arranges for marking with a department identification plug by a department representative[; and]

                                  [(C) the landowner on whose property the skull was found signs an affidavit prior to the time the skull is marked that attests the place and date that the person discovered the ram].

                         (3) – (4) (No change.)

         §65.11. Lawful Means.

                 (1) (No change.)

                 (2) Archery.

                         (A) – (C) (No change.)

                         (D) It is unlawful to hunt deer or turkey with a broadhead hunting point while in possession of a firearm during an archery-only season. This subparagraph does not apply to possession of a firearm under the provisions of Government Code, Chapter 411, Subchapter H.

                         (E) (No change.)

                 (3) (No change.)

                 (4) Air guns. It is lawful to hunt squirrels with an air gun, provided:

                         (A) the gun is designed to be fired from the shoulder;

                         (B) the gun operates by using the force of a spring, air, or non-ignited compressed gas to expel a projectile;

                         (C) the muzzle velocity of the gun is at least 600 feet per second; and

                         (D) the projectile is at least .177 caliber (4.5 mm) in diameter. 

                 (5)[(4)] Falconry. It is lawful to hunt any game bird or game animal by means of falconry under the provisions of Subchapter K of this chapter (relating to Raptor Proclamation).

                 (6)[(5)] Alligator.

                         (A) – (C) (No change.)

                 (7)[(6)] Use of laser sighting devices. All provisions concerning hunter education requirements apply to persons hunting with laser sighting devices under this paragraph.

                         (A) – (B) (No change.)

                 (8)[(7)] Special Provisions.

                         (A) – (B) (No change.)

         §65.32. Antlerless Mule Deer Permit.

                 (a) At the request of a landowner, the department may, based on evaluations of habitat and population, issue antlerless mule deer hunting permits for a specific tract of land.

                 (b) No antlerless mule deer hunting permit is required for mule deer killed during an archery-only open season in a county for which the bag limit during an archery-only season is designated as either sex.

                 (c) The annual and county bag limits for antlerless mule deer does not apply on a property for which a permit under this section has been issued, provided a valid, unused permit is possessed for each antlerless mule deer harvested on the property.

                 (d) A permit issued under this section is valid during any open season for mule deer on the property for which it was issued; however, during an archery-only open season, antlerless mule deer may be taken only by means of lawful archery equipment and crossbow.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on

         The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 42, which allows the department to issue tags for animals during each year or season; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed.

         The proposed amendments affect Parks and Wildlife Code, Chapters 42 and 61.

         §65.42. Deer.

                 (a) (No change.)

                 (b) White-tailed deer. The open seasons, annual bag limits, and special provisions for white-tailed deer shall be as follows. If Managed Lands Deer Permits (MLDPs) have been issued for a tract of land in any county, they must be attached to all deer harvested on the tract of land, regardless of season. An MLDP buck permit may not be used to harvest or tag an antlerless deer. An MLDP antlerless permit may not be used to tag a buck deer.

                          (1) — (14) (No change.)

                         (15) In all other counties[Andrews, Bailey, Castro, Cochran, Collin, Dallas, El Paso, Gaines, Galveston, Hale, Hockley, Hudspeth, Lamb, Lubbock, Lynn, Parmer, Rockwall, Terry, Winkler, and Yoakum counties], there is no general open season.

                         (16) — (18) (No change.)

         (c) Mule deer. The open seasons and annual bag limits for mule deer shall be as follows.

                 (1) In Armstrong, Borden, Briscoe, Carson, Childress, Coke, Collingsworth, Cottle, Crosby, Dallam, Deaf Smith, Dickens, Donley, Fisher, Floyd, Foard, Garza, Gray, Hall, Hansford, Hardeman, Hartley, Hemphill, Hutchinson, Kent, King, Knox, Lipscomb, Moore, Motley, Ochiltree, Oldham, Potter, Randall, Roberts, Scurry, Sherman, Stonewall, Swisher, and Wheeler counties, there is a general open season.

                         (A) Open season: Saturday before Thanksgiving for 16 consecutive days.

                         (B) Bag limit: two deer, no more than one buck.

                         (C) Antlerless deer may be taken only by Antlerless Mule Deer or MLD Permits.

                 (2) (No change.)

                 (3) In Andrews, Bailey, Castro, Cochran, Dawson, Gaines, Hale, Hockley, Lamb, Lubbock, Lynn, Martin, Parmer, Terry, and Yoakum counties, there is a general open season.

                         (A) Open season: Saturday before Thanksgiving for nine consecutive days.

                         (B) Bag limit: two deer, no more than one buck.

                         (C) Antlerless deer may be taken by permit only.

                 (4) (No change.)

                 (5) Archery-only open seasons and bag and possession limits shall be as follows. During an archery-only open season, deer may be taken only as provided for in §65.11(2) and (3) of this title (relating to Lawful Means). No antlerless permit is required unless MLD antlerless permits have been issued for the property.

                         (A) In Armstrong, Borden, Briscoe, Carson, Childress, Coke, Collingsworth, Cottle, Crane, Crockett, Crosby, Culberson, Dallam, Deaf Smith, Dickens, Donley, Ector, El Paso, Fisher, Floyd, Foard, Garza, Gray, Hall, Hansford, Hardeman, Hartley, Hemphill, Hudspeth, Hutchinson, Jeff Davis, Kent, King, Knox, Lipscomb, Loving, Midland, Moore, Motley, Ochiltree, Oldham, Potter, Presidio, Randall, Reagan, Reeves, Roberts, Scurry, Sherman, Stonewall, Swisher, Upton, Val Verde, Ward, Wheeler, and Winkler counties, there is an open season.

                                  (i) Open season: from the Saturday closest to September 30 for 35 consecutive days.

                                  (ii) Bag limit: one buck deer.

                         (B) (No change.)

         §65.46. Squirrel: Open Seasons, Bag, and Possession Limits.

                 (a)  [In Brazos, Burleson, Collin, Dallas, Ellis, Falls, Grayson, Grimes, Kaufman, Madison, Milam, and Rockwall counties, there is an open season from September 1 through August 31.]

                         [(1) Daily bag limit: 10 squirrels.]

                         [(2) Possession limit: 20 squirrels.]

                 [(b)] In Anderson, Angelina, Bowie, Camp, Cass, Chambers, Cherokee, Delta, Fannin, Franklin, Freestone, Galveston, Gregg, Hardin, Harris, Harrison, Henderson, Hopkins, Houston, Hunt, Jasper, Jefferson, Lamar, Leon, Liberty, Limestone, Marion, Montgomery, Morris, Nacogdoches, Navarro, Newton, Orange, Panola, Polk, Rains, Red River, Robertson,  Rusk, Sabine, San Augustine, San Jacinto, Shelby, Smith, Titus, Trinity, Tyler, Upshur, Van Zandt, Walker, and Wood Counties, there is a general open season for squirrel.

                          (1) Open season: May 1-May 31 and October 1 through the last[first] Sunday in February.

                         (2) Daily bag limit: 10 squirrels.

                         (3) Possession limit: 20 squirrels.

                 (b)[(c)] In Andrews, Bailey, Borden, Brewster, Briscoe, Carson, Castro, Cochran, Crane, Culberson, Dallam, Dawson, Deaf Smith, Ector, El Paso, Floyd, Gaines, Glasscock, Hale, Hansford, Hartley, Hockley, Howard, Hudspeth, Hutchinson, Jeff Davis, Lamb, Loving, Lubbock, Lynn, Martin, Midland, Moore, Oldham, Parmer, Potter, Presidio, Reagan, Reeves, Sherman, Swisher, Terry, Upton, Ward, Winkler, and Yoakum counties, there is no open season on squirrel.

                 (c)[(d)] In all other counties, there is an open season from September 1 through August 31, during which there is no bag limit.

                 (d)[(e)] In the counties listed in subsection (a)[(b)] of this section, there shall be a special youth-only general hunting season during which only licensed hunters 16 years of age or younger may hunt.

                         (1) open season: the Saturday and Sunday immediately preceding October 1.

                         (2) bag and possession limits: as specified in subsection (b) of this section.

         §65.48. Desert Bighorn Sheep: Open Season and Annual Bag Limit.

                 (a) In Brewster, Culberson, Hudspeth, Jeff Davis, and Presidio counties, there is a general open season for desert bighorn sheep.

                 (b) Open Season: From September 1 through July 31[August 31].

                 (c) Bag limit: One desert bighorn sheep ram as specified on the permit, by permit only.

                 (d) Possession Limit: One desert bighorn sheep ram.

         §65.64. Turkey.

                 (a)-(b) (No change.)

                 (c) Eastern turkey. The open seasons and bag limits for Eastern turkey shall be as follows. In Angelina, Bowie, Brazoria, Camp, Cass, Fannin, Fort Bend, Franklin, Grayson, Harrison, Hopkins, Jasper, Lamar, Marion, Matagorda, Morris, Nacogdoches, Newton, Panola, Polk, Red River, Sabine, San Augustine, Titus, Trinity, Upshur, Wharton, and Wood counties, there is a spring season during which both Rio Grande and Eastern turkey may be lawfully hunted.

                         (1) Open season: from April 15 through May 14.

                         (2) Bag limit (both species combined): one turkey, gobbler only.

                         (3) In the counties listed in this subsection:

                                  (A) it is unlawful to hunt turkey by any means other than a shotgun, lawful archery equipment, or crossbows;

                                  (B) it is unlawful for any person to take or attempt to take turkeys by the aid of baiting, or on or over a baited area; and

                                  (C) all turkeys harvested during the open season must be registered via the department’s internet or mobile application or at a designated check station[stations] within 24 hours of the time of kill. Harvested turkeys may be field dressed but must otherwise remain intact.

                 (d) (No change.)

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on


Work Session Item No. 8
Presenter: Ken Kurzawski
Robin Riechers
Brandi Reeder

Work Session
2014-2015 Statewide Recreational and Commercial Fishing Proclamations
January 22, 2014

I.      Executive Summary:  This item seeks permission to publish proposed changes to the Statewide Recreational and Commercial Fishing Proclamations in the Texas Register for public comment. This item also includes discussion items from the November meeting of the Commission that could result in additional potential regulations changes.

Proposed amendments (located at Exhibits A and B)

Inland Fisheries

  • Modify harvest regulation for blue and channel catfish on Texas/Louisiana border waters;
  • Remove unnecessary special regulation for red drum in Tradinghouse Creek Reservoir;
  • Enact catch-and-release regulations for channel catfish, largemouth bass, and sunfish on Lake Kyle;
  • Modify regulations for rainbow and brown trout in a section of the Guadalupe River below Canyon Dam;
  • Clarify harvest and gear restrictions on small lakes in Lubbock and Tom Green counties.

Coastal Fisheries

  • Temporarily close public oyster harvest in portions of Galveston and Matagorda bays for purposes of reef restoration.

Law Enforcement

  • Simplify floating gear buoy requirements.

Additional Discussion Items

Inland Fisheries

  • Staff may also outline potential actions to address other freshwater species.

Coastal Fisheries

  • The Coastal Fisheries Division recently gathered input from anglers regarding possible changes to the flounder regulations.  These possible changes include extending the current special November regulations (2 fish daily bag limit, harvest by pole-and-line only) back into October, further into December, or combinations thereof. Staff will discuss these options and feedback heard from anglers. 
  • The Coastal Fisheries Division also recently gathered input from anglers regarding possible changes to the spotted seatrout regulations.  These possible changes include expanding the current 5-fish bag limit from the Lower Laguna Madre (LLM) to the entire Texas coast, or from the LLM through East Matagorda Bay (excludes Galveston Bay and Sabine Lake).  Staff will discuss these options and feedback heard from anglers.

II.     Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking fisheries resources for recreational purposes is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapters 61 and 67. Statutory authority to regulate commercial fisheries is delegated to the commission under Parks and Wildlife Code, Chapters 47 and 66.  The proposed rules are based upon suggestions from the public, statutory requirements, and commission policy, including scientific investigation and required findings of fact where applicable. The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

Attachments – 2

  1. Exhibit A – Proposed Statewide Recreational and Commercial Fishing Proclamation
  2. Exhibit B – Proposed Statewide Oyster Proclamation

Work Session Item No. 8
Exhibit A

STATEWIDE RECREATIONAL

AND COMMERCIAL FISHING PROCLAMATIONS

Proposal Preamble

 1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §§57.973 and 57.981, concerning the Statewide Recreational and Commercial Fishing Proclamations.

         The proposed amendment to §57.973, concerning Devices, Means, and Methods, would add three locations to the list of locations where persons are restricted to no more than two pole-and-line devices while angling, expand the geographical extent of special rules governing the take of rainbow trout on the Guadalupe River, and simplify rules specifying the color of floats that must be employed with jug lines.

         In 2012 the department implemented harvest and gear restrictions on Canyon Lake Project #6 in Lubbock County that are similar to those in effect for community fishing lakes (CFL). The lake is 82 acres, which is larger than the maximum size of 75 acres established by rule for CFLs; therefore, the lake was subject to statewide harvest and devices regulations. By rule, CFLs share a single regulatory structure on catfish (no minimum length limit, five fish bag) and gear usage (pole-and-line angling only, with a limit of two poles per person). The rulemaking last year addressed the restriction to pole-and-line angling only but not the pole limit and harvest limitations. The proposed amendment would correct that oversight by imposing the statewide CFL harvest regulations for channel and blue catfish and the two-pole limit on Canyon Lake Project #6. In addition, there are two segments of the Concho River within the city limits of the City of San Angelo that have also been managed under regulations similar to those in effect for CFLs. The proposed amendment would impose the CFL gear restriction rules on those stream segments.

         Current rules require juglines used for non-commercial purposes to be marked with a white, free-floating device. The department has received requests from the public to change the rule to remove the color requirement because “noodle” floats are ideal for this purpose but are not commonly available in white. The department has determined that allowing floats to be any color does not present an enforcement issue, provided the float is not orange, which is the required color for floats used on commercial juglines.

         Current harvest and gear regulations for rainbow and brown trout on the Guadalupe River from Canyon Lake Dam to the easternmost bridge crossing on Farm to Market Road (FM) 306 consist of the statewide limits for trout (a five-fish daily bag limit and no length limit). From the easternmost FM 306 crossing downstream to the second bridge crossing on River Road, current rules allow the harvest of trout 18 inches or longer, and anglers are allowed to retain one trout per day. The retention of trout harvest in this area is also restricted to trout caught on artificial lures. Downstream of the second bridge crossing on the River Road, the regulations revert back to statewide limits. The proposed amendment would impose a 12- to 18-inch slot length limit and five-fish daily bag limit, restrict harvest to artificial lures only, and allow only one trout over 18 inches to be retained. The new regulation zone would extend from 800 yards downstream from the Canyon Dam release to the easternmost Highway 306 bridge crossing.

         Rainbow trout have been stocked in the Guadalupe River below Canyon Reservoir since 1966 by TPWD through a state/federal/private partnership, and the river has been a popular fishery since its inception. The Guadalupe River Chapter of Trout Unlimited (GRTU) has also stocked the Guadalupe River since the early 1970s. Because of the release from Canyon Reservoir, water temperature in the Guadalupe River below Canyon Reservoir is suitable for oversummer survival of rainbow trout in most years. The distance below the reservoir where water temperature remains suitable (below 70° F) is determined by outflow from the reservoir. Higher flows extend the distance, while lower flows reduce it. TPWD and/or GRTU have continuously monitored water temperatures at five sites in the river since 1997. Water temperature data indicate the 4-mile segment of the river from the outflow of Canyon Dam to the easternmost bridge crossing on Highway 306 has the most consistent, suitable water temperatures. Mortality due to above optimal water temperature (70°F or higher) in this stretch is likely the lowest. Oversummer survival of trout in this segment of the river was documented in fall 2011 despite extremely low summer (June – August) flows (less than 70 cfs) and record high ambient temperatures.

         Length limits for the harvest of trout are not currently regulated in this section of the river. Trout of any length can be harvested in this stretch of the river although potential for multi-year survival in this stretch is likely the highest of anywhere on the river. A more-restrictive harvest regulation in this stream segment could be used to increase angler catch rates as well as potentially increase the size structure of the trout population. The proposed amendment is designed to avoid interfering with the popular catch-and-keep fishery directly below the dam. The 12-inch lower end of the slot limit would allow harvest of trout stocked by TPWD, as most are below this length, while protecting trout stocked by GRTU which are typically above this length.

         The proposed amendment to §57.981, concerning Bag, Possession, and Length Limits, would alter regulations for blue and channel catfish on Louisiana border waters (Toledo Bend Reservoir, Caddo Lake, and Lower Sabine River.

         Current harvest regulations for blue and channel catfish on Louisiana border waters consist of a minimum length limit and 50-fish daily bag limit in any combination, of which no more than five blue or channel catfish longer than or equal to 20 inches may be retained. The proposed amendment would eliminate the minimum length limit.

         The current regulations were implemented on all border waters on September 1, 2011 in collaboration with Louisiana Department of Wildlife and Fisheries (LDWF). There have been numerous public complaints from anglers, particularly on Toledo Bend Reservoir, that the regulation is too restrictive because it results in high proportions of undersized fish being caught on juglines and trotlines. In response to the complaints, supplemental creel, population sampling, and opinion surveys were conducted by TPWD and LDWF. Anglers interviewed during creel surveys caught 1,230 blue catfish, of which 46% were 20 inches or longer and 6% 30 inches or longer. LDWF sampled blue catfish with trotlines and results were similar to those obtained from Texas anglers, with 50% of the catch 20 inches or longer and 6% longer than 30 inches. An opinion survey of anglers indicated that 89% opposed the retention limit of five fish greater than 20 inches and only 3% supported it. Of those opposing, 91% favored a five-fish bag limit but wanted the length limit increased to 30 inches, while 9% supported the current length limit (20 inches) but preferred a bag limit increase to 10 fish.

         Toledo Bend Reservoir currently supports an abundant blue catfish population with stable recruitment, and trotline and jugline anglers routinely catch fish that weigh 20 pounds or more and exceed 35 inches in length). Elimination of the minimum length limit under a 50-fish daily bag limit for blue and channel catfish (in any combination) while allowing the retention of no more than five fish of 30 inches or greater in length should provide harvest opportunities that Toledo Bend Reservoir anglers desire without resulting in detrimental effects on the blue catfish population. Blue catfish abundance is high, recruitment is stable, and annual population exploitation is likely low. Additionally, the proposed amendment should not negatively affect blue catfish populations at Caddo Lake or the lower Sabine River, since minimal blue catfish fisheries exist in those places, and no effect is anticipated on the channel catfish population in any border waters because fish longer than or equal to 20 inches are scarce.

         The proposed amendment to §57.981 also would affect harvest regulations for red drum on Tradinghouse Creek Reservoir in McLennan County. The current regulations consist of a 20-inch minimum length limit, no maximum length limit, and a three-fish daily bag limit. The proposed amendment would eliminate the current requirements and implement the statewide length limits (20-inch minimum length limit, 28-inch maximum length limit, and harvest of up to two red drum 28 inches or longer per year with trophy drum tag). The daily bag limit would remain at three. Tradinghouse Creek is a 2,012-acre reservoir located in McLennan County, 10 miles east of Waco. The reservoir was impounded in 1968 and was maintained by Texas Utilities Company for the purpose of cooling a coal-fired power plant. Plant operations were downgraded to an as-needed status in 2004, and then suspended permanently in 2009. Red drum have been stocked regularly in reservoir since 1975. The change in plant operations resulted in water quality changes (lower water temperature and chloride levels) in the reservoir that almost completely eliminate the ability of red drum to survive year round. Red drum stocking was discontinued after 2010, and red drum most likely no longer exist in the reservoir. No red drum were observed during supplemental gill netting or the summer creel survey. Temperature data confirmed near-lethal water temperatures for red drum, and there were more than 40 days of temperatures low enough to stop red drum from actively feeding. Additionally, chloride levels were found to be much lower than the minimum needed to support red drum in fresh water. Consequently, special regulations are no longer needed for this freshwater population.

         The proposed amendment to §57.981 also would affect Lake Kyle in Hays County. Current regulations on Lake Kyle consist of community fishing lake (CFL)  regulations (five fish daily bag limit for channel and blue catfish, no minimum length limit, methods restricted to pole-and-line only and no more than two devices per person). The proposed amendment would prohibit the harvest of channel and blue catfish, largemouth bass, or any sunfish species. Lake Kyle is a 12-acre impoundment of Plum Creek and has been open to the public since spring 2012 under the management of the City of Kyle Parks and Recreation Department. A 14- to 21-inch slot length limit was implemented for largemouth bass in 2011 to protect the quality population surveyed at this lake. A high-quality sunfish population was also detected during initial fish surveys. However, after opening to the public, the quality of the sunfish fishery has been reduced. Public access is limited to the hours and days the park is open. All park users access the park through one entrance at the main office. This unique site provides the attributes needed to expand a quality fishing experience beyond bass to include channel catfish and sunfish.  More restrictive harvest regulations will help ensure the development of an urban trophy fishery for those who wish to pursue a more advanced catch experience.

2. Fiscal Note.

         Ken Kurzawski, Program Director, Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

         Mr. Kurzawski also has determined that for each of the first five years that the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

          The department has determined that the proposed rules will not directly affect small businesses and/or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

         (D) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

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

         (F) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

4. Request for Public Comment

         Comments on the proposal may be submitted to Ken Kurzawski (Inland Fisheries) at (512) 389-4591, e-mail: ken.kurzawski@tpwd.texas.gov; Jeremy Leitz (Coastal Fisheries) at (512) 389-4333, e-mail: jeremy.leitz@tpwd.texas.gov; or Brandi Reeder (Law Enforcement) at (512) 389-4853, e-mail brandi.reeder@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority

         The amendments are proposed under the authority of Parks and Wildlife Code, §42.010, which authorizes the department to prescribe the form and manner of issuance of the licenses and tags authorized by Chapter 42; §46.0085, which authorizes the department to prescribe the form and manner of issuance of the licenses and tags authorized by Chapter 46; Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed; §66.007, which prohibits the possession or placement into public waters of exotic fish or shellfish except as authorized by rule or permit issued by the department; and §67.004, which requires the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.

         The proposed amendments affect Parks and Wildlife Code, Chapters 42, 46, 66, 61 and 67.

         §57.973. Devices, Means and Methods.

                 (a)  In fresh water only, it is unlawful to fish with more than 100 hooks on all devices combined.

                 (b) Game and non-game fish may be taken only by pole and line in or on:

                         (1) community fishing lakes;

                         (2) sections of rivers lying totally within the boundaries of state parks;

                         (3) any dock, pier, jetty, or other manmade structure within a state park;

                         (4) Canyon Lake Project #6 (Lubbock County);

                         (5) Lake Pflugerville (Travis County);

                         (6) [the] North Concho River (Tom Green County) from O.C. Fisher Dam to Bell Street Dam;

                         (7) [the] South Concho River (Tom Green County) from Lone Wolf Dam to Bell Street Dam; and

                         (8) Wheeler Branch (Somervell County).

                 (c) No person may employ more than two pole-and-line devices at the same time on:

                         (1) any dock, pier, jetty, or other manmade structure within a state park; [and]

                          (2) community fishing lakes that are not within or part of a state park[.];

                         (3) Canyon Lake Project #6 (Lubbock County);

                          (4) North Concho River (Tom Green County) from O. C. Fisher Dam to Bell Street Dam; and

                         (5) South Concho River (Tom Green County) from Lone Wolf Dam to Bell Street Dam.

                 (d) It is unlawful to take, attempt to take, or possess fish caught in public waters of this state by any device, means, or method other than as authorized in this subchapter.

                 (e) In salt water only, it is unlawful to fish with any device that is marked with a buoy made of a plastic bottle(s) of any color or size.

                 (f) Aquatic life (except threatened and endangered species) not addressed in this subchapter may be taken only by hand or with the devices defined as lawful for taking fish, crabs, oysters, or shrimp in places and at times as provided by the Parks and Wildlife Commission and regulations adopted by the Parks and Wildlife Code.

                 (g) Device restrictions. Devices legally used for taking fresh or saltwater fish or shrimp may be used to take crab as authorized by this subchapter.

                         (1) – (8) (No change.)

                         (9) Jugline. For use in fresh water only. Non-game fish, channel catfish, blue catfish and flathead catfish may be taken with a jugline. It is unlawful to use a jugline:

                                  (A) with invalid gear tags. Gear tags must be attached within six inches of the free-floating device, are valid for 10 days after the date set out, and must include the number of the permit to sell non-game fish taken from fresh water, if applicable;

                                  (B) for commercial purposes that is not marked with an orange free-floating device;

                                   (C) for non-commercial purposes that is not marked with a [white] free-floating device of any color other than orange;

                                  (D) in Lake Bastrop in Bastrop County, Bellwood Lake in Smith County, Lake Bryan in Brazos County, Boerne City Park Lake in Kendall County, Lakes Coffee Mill and Davy Crockett in Fannin County, Dixieland Reservoir in Cameron County, Gibbons Creek Reservoir in Grimes County, Lake Naconiche in Nacogdoches County, and Tankersley Reservoir in Titus County.

                          (10) – (12) (No change.)

                         (13)  Pole and line.

                                  (A)- (B) (No change.)

                                  (C) Game and non-game fish may be taken by pole and line, except that in the Guadalupe River in Comal County from the second bridge crossing on River Road upstream to a point 800 yards downstream of the Canyon Lake dam outlet[the easternmost bridge crossing on F.M. Road 306] , rainbow and brown trout may not be retained when taken by any method except artificial lures. Artificial lures cannot contain or have attached either whole or portions, living or dead, of organisms such as fish, crayfish, insects (grubs, larvae, or adults), or worms, or any other animal or vegetable material, or synthetic scented materials. This does not prohibit the use of artificial lures that contain components of hair or feathers. It is an offense to possess rainbow and brown trout while fishing with any other device in that part of the Guadalupe River defined in this paragraph.

                         (14) — (23 (No change.)

         §57.981. Bag, Possession, and Length Limits.

                 (a) – (c) (No change.)

                 (d) Exceptions to statewide daily bag, possession, and length limits shall be as follows:

                         (1) Freshwater species.

Figure: 31 TAC §57.981(d)(1)

Species and Location (County)

Daily Bag

Minimum Length (Inches)

Special Regulation

Bass: largemouth, smallmouth, spotted and Guadalupe bass, their hybrids, and subspecies.

In all waters in the Lost Maples State Natural Area (Bandera).

0

No limit

Catch and release only.

Bass: largemouth and spotted.

Lake Alan Henry.

5

No limit

It is unlawful to retain more than two bass of less than 18 inches in length.

Caddo Lake (Marion and Harrison).

8 (in any combination with spotted bass)

14 — 18 inch slot limit (largemouth bass); no limit for spotted bass.

It is unlawful to retain largemouth bass between 14 and 18 inches. No more than 4 largemouth bass 18 inches or longer may be retained. Possession limit is 10.

Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge and Toledo Bend Reservoir (Newton, Sabine, and Shelby).

8 (in any combination with spotted bass)

14 (largemouth bass); no limit for spotted bass.

Possession limit is 10.

Bass: largemouth.

Conroe (Montgomery and Walker), Granbury (Hood), Possum Kingdom (Palo Pinto, Stephens, Young), and Ratcliff (Houston).

5

16

Lakes Kurth (Angelina) and  Nacogdoches (Nacogdoches).

5

It is unlawful to retain largemouth bass of 16 inches or greater in length. Largemouth bass 24 inches or greater in length may be retained in a live well or other aerated holding device for purposes of weighing, but may not be removed from the immediate vicinity of the lake. After weighing, the bass must be released immediately back into the lake unless the department has instructed that the bass be kept for donation to the ShareLunker Program.

Lakes Bellwood (Smith), Braunig (Bexar), Bright (Williamson), Brushy Creek (Williamson), Bryan (Brazos), Calaveras (Bexar), Casa Blanca (Webb), Cleburne State Park (Johnson), Cooper (Delta and Hopkins), Fairfield (Freestone), Gilmer (Upshur), [,] Marine Creek Reservoir (Tarrant), Meridian State Park (Bosque), Naconiche (Nacogdoches), Old Mount Pleasant City (Titus), Pflugerville (Travis), Rusk State Park (Cherokee), and Welsh (Titus).

5

18

[Nelson Park Lake (Taylor) and ]Buck Lake (Kimble), Lake Kyle (Hays), and Nelson Park Lake (Taylor).

0

No limit

Catch and release and only.

Lake Jacksonville (Cherokee) and O.H. Ivie Reservoir (Coleman, Concho, and Runnels).

5

No limit

It is unlawful to retain more than two bass of less than 18 inches in length.

Purtis Creek State Park Lake (Henderson and Van Zandt), and Raven (Walker).

0

No limit

Catch and release only except that any bass 24 inches or greater in length may be retained in a live well or other aerated holding device for purposes of weighing, but may not be removed from the immediate vicinity of the lake. After weighing, the bass must be released immediately back into the lake unless the department has instructed that the bass be kept for donation to the ShareLunker Program.

Lakes Bridgeport (Jack and Wise), Burke- Crenshaw (Harris), Davy Crockett (Fannin), Grapevine (Denton and Tarrant), Georgetown (Williamson), Madisonville (Madison), San Augustine City (San Augustine), and Sweetwater (Nolan).

5

14 — 18 inch slot limit

It is unlawful to retain largemouth bass between 14 and 18 inches in length.

Lakes Athens (Henderson), Bastrop (Bastrop), Buescher State Park (Bastrop), Houston County (Houston), Joe Pool (Dallas, Ellis, and Tarrant), Kyle (Hays), Lady Bird (Travis) Mill Creek (Van Zandt), Murvaul (Panola), Pinkston (Shelby), Timpson (Shelby), Walter E. Long (Travis) and Wheeler Branch (Somervell).

5

14 — 21 inch slot limit

It is unlawful to retain largemouth bass between 14 and 21 inches in length. No more than 1 bass 21 inches or greater in length may be retained each day.

Lakes Fayette County (Fayette), Gibbons Creek Reservoir (Grimes), and Monticello (Titus).

5

14 — 24 inch slot limit

It is unlawful to retain largemouth bass between 14 and 24 inches in length. No more than 1 bass 24 inches or greater in length may be retained each day.

Lake Fork (Wood, Rains and Hopkins).

5

16 — 24 inch slot limit

It is unlawful to retain largemouth bass between 16 and 24 inches in length. No more than 1 bass 24 inches or greater in length may be retained each day.

Bass: smallmouth.

Lakes O. H. Ivie (Coleman, Concho, and Runnels), Devil’s River (Val Verde) from State Highway 163 bridge crossing near Juno downstream to Dolan Falls, and Wheeler Branch (Somervell).

3

18

Lake Meredith (Hutchinson, Moore, and Potter).

3

12 — 15 inch slot limit

It is unlawful to retain smallmouth bass between 12 and 15 inches in length.

Bass: striped and white bass, their hybrids, and subspecies.

Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge and Toledo Bend Reservoir (Newton, Sabine, and Shelby).

5

No limit

No more than 2 striped bass 30 inches or greater in length may be retained each day.

Lake Texoma (Cooke and Grayson).

10 (in any combination)

No limit

No more than 2 striped or hybrid striped bass 20 inches or greater in length may be retained each day. Striped or hybrid striped bass caught and placed on a stringer, in a live well or any other holding device become part of the daily bag limit and may not be released. Possession limit is 20.

Red River (Grayson) from Denison Dam downstream to and including Shawnee Creek (Grayson).

5 (in any combination)

No limit

Striped bass caught and placed on a stringer, in a live well or any other holding device become part of the daily bag limit and may not be released.

Trinity River (Polk and San Jacinto) from the Lake Livingston dam downstream to the F.M. Road 3278 bridge.

2 (in any combination)

18

Bass: white.

Lakes Caddo (Harrison and Marion), Texoma (Cooke and Grayson) and Toledo Bend (Newton, Sabine, and Shelby), and Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge.

25

No limit

Carp: common.

Lady Bird Lake (Travis).

No limit

No limit

It is unlawful to retain more than one common carp of 33 inches or longer per day.

Catfish: blue.

Lakes Lewisville (Denton), Richland- Chambers (Freestone and Navarro), and Waco (McLennan).

25 (in any combination with channel catfish)

30-45-inch slot limit

It is unlawful to retain blue catfish between 30 and 45 inches in length. No more than one blue catfish 45 inches or greater in length may be retained each day.

Catfish: channel and blue catfish, their hybrids, and subspecies.

Lake Kyle (Hays)

0

No limit

Catch and release and only.

Lake Livingston (Polk, San Jacinto, Trinity, and Walker).

50 (in any combination)

12

Trinity River (Polk and San Jacinto) from the Lake Livingston dam downstream to the F.M. Road 3278 bridge.

10 (in any combination)

12

No more than 2 channel or blue catfish 24 inches or greater in length may be retained each day.

Lakes [Caddo (Harrison and Marion), ]Kirby (Taylor)[,] and Palestine (Cherokee, Anderson, Henderson, and Smith)[, and Toledo Bend (Newton, Sabine, and Shelby), Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge].

50 (in any combination)

No limit

No more than five catfish 20 inches or greater in length may be retained each day. Possession limit is 50.

Lakes Caddo (Harrison and Marion) and Toledo Bend (Newton, Sabine, and Shelby), and Sabine River (Newton and Orange) from Toledo Bend dam to I.H. 10 bridge.

50 (in any combination)

No limit

No more than five catfish 30 inches or greater in length may be retained each day. Possession limit is 50.

Lake Texoma (Cooke and Grayson).

15 (in any combination)

12

No more than one blue catfish 30 inches or greater in length may be retained each day.

Canyon Lake Project #6 (Lubbock), North Concho River (Tom Green) from O.C. Fisher Dam to Bell Street Dam, and South Concho River (Tom Green) from Lone Wolf Dam to Bell Street Dam.

5 (in any combination)

No limit

Community fishing lakes.

5 (in any combination)

No limit

Bellwood (Smith), Dixieland (Cameron), and Tankersley (Titus).

5 (in any combination)

12

Catfish: flathead.

Lake Texoma (Cooke and Grayson) and the Red River (Grayson) from Denison Dam to and including Shawnee Creek (Grayson).

5

20

Lakes Caddo (Harrison and Marion), Toledo Bend (Newton, Sabine, and Shelby), and Sabine River (Newton and Orange) from Toledo Bend dam to the I.H. 10 bridge.

10

18

Possession limit is 10.

Crappie: black and white crappie, their hybrids and subspecies.

Caddo Lake (Harrison and Marion), Toledo Bend Reservoir (Newton, Sabine, and Shelby), and Sabine River (Newton and Orange) from Toledo Bend dam to the I.H. 10 bridge.

25 (in any combination)

No limit

Lake Fork (Wood, Rains, and Hopkins) and Lake O’ The Pines (Camp, Harrison, Marion, Morris, and Upshur).

25 (in any combination)

10

From December 1, through the last day in February, there is no minimum length limit. All crappie caught during this period must be retained.

Lake Texoma (Cooke and Grayson).

37 (in any combination)

10

Possession limit is 50.

Drum, red.

Lakes Braunig and Calaveras (Bexar), and Coleto Creek Reservoir (Goliad and Victoria), Fairfield (Freestone), [and Tradinghouse Creek (McLennan)].

3

20

No maximum length limit.

Shad, gizzard and threadfin.

The Trinity River below Lake Livingston in Polk and San Jacinto Counties.

500 (in any combination)

No limit

Possession limit 1,000 in any combination.

Sunfish: all species

 

 

Lake Kyle (Hays)

0

No limit

Catch and release and only.

Trout: rainbow and brown trout, their hybrids, and subspecies.

Guadalupe River (Comal) from the second bridge crossing on the River Road upstream to the easternmost bridge crossing on F.M. Road 306.

1

18

Guadalupe River (Comal) from the easternmost bridge crossing on F.M. Road 306 upstream to 800 yards below the Canyon Lake dam.

5

12 — 18 inch slot limit

It is unlawful to retain trout between 12 and 18 inches in length. No more than one trout 18 inches or greater in length may be retained each day.

Walleye.

Lake Texoma (Cooke and Grayson).

5

18

  (2) Saltwater species.

Figure: 31 TAC §57.981(d)(2)

Species

Daily Bag

Minimum Length
(Inches)

Special
Regulation

Seatrout, spotted.

All inside waters of the Lower Laguna Madre south of marker 21.

5*

15

25**

*Special Regulation: The daily bag limit of 5 is the possession limit allowed for spotted seatrout.
**Special Regulation: One spotted seatrout greater than 25 inches may be retained per day.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt.

         Issued in Austin, Texas on


Work Session Item No. 8
Exhibit B

STATEWIDE OYSTER FISHERY PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

                 The Texas Parks and Wildlife Department proposes an amendment to §58.21, concerning Area Closures, for commercial oyster harvest.  The proposed new rule would close public oyster reefs in the East Bay Approved Area in Galveston Bay and a 54 acre area encompassing Half-Moon Reef in Matagorda Bay for two harvest seasons, which will allow for scheduled oyster cultch plantings to repopulate with oysters and for those oysters to reach market size. Private oyster leases in East Galveston Bay would not be affected by the closure.

                 Under Parks and Wildlife Code, §76.115, the department may close an area to the taking of oysters when the commission finds that the area is being overworked or damaged or the area is to be reseeded or restocked.  The department will be restoring approximately 170 acres of oyster reef habitat in East Bay in the spring of 2014 and The Nature Conservancy is currently restoring approximately 54 acres of oyster reef habitat on Half-Moon reef located in Matagorda Bay.

         When Hurricane Ike made landfall on the upper Texas coast on September 13, 2008, it caused extensive damage to the oyster reef habitat in Galveston Bay and especially East Bay.  The damage was mainly caused by siltation on the reefs and the deposition of sediment on reef substrate.  This siltation does not allow for spat (juvenile oysters) to set on the reef and begin the process of oyster reef repopulation.  Sidescan sonar surveys conducted by the department indicated an approximately 50-60% loss of oyster habitat in Galveston Bay due to heavy sedimentation/siltation and debris over consolidated reefs.  The impact was greatest in East Bay, where over 80% of oyster habitat was lost.

         The department’s oyster habitat restoration efforts to date in East Bay have resulted in approximately 640 acres of sediment/silt-covered oyster habitat returned to productive habitat within the bay.  Approximately $4 million in grants and other funding has been secured by the department to conduct cultch (the material to which spat attach in order to create an oyster bed) planting on approximately 170 acres of additional sediment/silt-covered oyster habitat in East Bay.

         The Half-Moon reef complex lies off Palacios Point in Matagorda County between Tres Palacios Bay and the eastern arm of Matagorda Bay and was formerly a highly productive oyster reef within the Lavaca-Matagorda Estuary.  The reef has been degraded due to a variety of stressors, and as a result, The Nature Conservancy (TNC) has secured funding to restore up to 40 acres within the historical reef footprint and within the 54 acre area proposed for temporary closure.  The proposed closure area will provide a small buffer around the restoration site.

         The project will consist of the emplacement of three-dimensional structures utilizing graded limestone that will function as cultch for oyster populations and is completed funded by TNC.

          The department has determined that East Bay Approved Area in Galveston Bay and the 54-acre area encompassing Half-Moon Reef in Matagorda Bay must be closed to oyster harvest for at least two years in order to repopulate these reefs, allow for post-construction monitoring for success, and to allow oysters to reach market size.  The temporary closure of East Bay will also allow oysters resources on previous restoration project areas and oyster habitat that survived Hurricane Ike additional opportunities to recruit and grow to marketable sizes.

2. Fiscal Note.

         Lance Robinson, Coastal Fisheries Division, Regional Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

         Mr. Robinson also has determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach market size and subsequent recreational and commercial harvest.

         (B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that there will be adverse economic effects on small businesses, microbusinesses, and persons required to comply with the amendments as proposed; however, those effects will be minimal. The proposed rule would affect persons licensed by the department to harvest and sell oysters taken from public water. Department data indicate that approximately 1188 people per year purchase a license that allows the sale of oysters (commercial oyster boat license, commercial oyster boat captain’s license). To ensure that this analysis captures every small or microbusiness affected by the proposed rule, the department assumes that most if not all businesses affected by the proposed rule qualify as small or microbusinesses.

         The rule as proposed would prohibit the commercial harvest of oysters from public oyster reefs in the East Bay portion of Galveston Bay and from Half-Moon reef in Matagorda Bay. The department requires commercial oyster fisherman to report oyster catch by location, weight, and selling price. During the most recent oyster season (November 1, 2012 – April 30, 2013), 80 licensed commercial oyster boats reported landing oysters from public oyster reefs in the East Bay portion of Galveston Bay.  Using the same commercial landings data, the dollar value of the annual catch from the East Bay area proposed for closure ranged from $75 to $22,550, with an average of $7,143.30.  Therefore, the maximum adverse economic impact of the proposed rules would be a revenue loss of $22,550, the minimum adverse economic effect would be a loss of $75, and the average loss would be $7,143.30.

         The department has considered other regulatory approaches to achieve the goal of the proposed amendment without imposing adverse economic impacts on small and microbusinesses. The department considered status quo. That alternative was rejected because the goal of the proposed amendment is to restore public oyster reefs in the East Bay, which is intended to increase the commercial viability of the fishery. The status quo approach would not only fail to achieve the goal of the proposed rule, but would also have the effect of degrading the long-term viability of the reef complex. Additionally, the department considered allowing a closely monitored commercial harvest while conducting the restoration effort. That alternative was rejected because it would complicate or perhaps prevent restoration of oyster reefs and would require manpower and resource commitments that would be prohibitive for the department.

         Department sampling data indicate that there are few oysters, if any, living on the Half Moon reef complex in Matagorda Bay. Anecdotal information obtained from the regulated community indicates that harvest effort on the reef is nonexistent. The department has determined that because the reef is commercially non-viable due to resource scarcity, there will be no adverse economic impacts to small or microbusinesses as a result of the closure of Half-Moon reef, and that if the restoration effort is successful there will be a potential positive economic impact for small and microbusinesses as a result of the availability of additional oyster resources for commercial harvest.  On that basis, the department has determined that a regulatory flexibility analysis for the Half-Moon reef temporary closure under Government Code, Chapter 2006, is not necessary.

         The department has determined that the proposed rules will have very little impact upon local employment at the macro or micro level and hence an insignificant impact upon local economies in the Galveston Bay and Matagorda Bay geographical area.  The department has determined that the direct employment impact of the proposed rules in these areas will, to varying degrees, affect a total of 80 licensees who reported harvesting oysters in East Bay.  Fourteen licensees reported landings from Matagorda Bay but due to the scarcity of oysters on Half-Moon reef the proposed two-year closure of this area is expected to have no direct employment impact in the Matagorda Bay area.  The department notes that the direct employment impacts of the proposed rules will be positive over time, as the proposed rules are intended to aid in the restoration of a commercially viable fishery.

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

         (E) The department has determined that the proposed rules are in compliance with Government Code §505.11 (Actions and Rules Subject to the Coastal Management Program) and §505.22 (Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program).

3. Request for Public Comment.

         Comments on the proposal may be submitted to Jeremy Leitz, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4333; email: jeremy.leitz@tpwd.texas.gov.

4. Statutory Authority

         These new rules are proposed under Parks and Wildlife Code, §76.115, which authorizes the commission to close an area to the taking of oysters when the area is to be reseeded or restocked.

         The proposed rules affect Parks and Wildlife Administrative Code, Chapter 58.

         §58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

                 (a) – (b) (No change.)

                 (c) Area Closures.

                         (1) There is no open public season for oysters from areas declared to be restricted or prohibited by the Department of State Health Services or areas closed by the commission.

                                  (1) The director may close an area to the taking of oysters upon finding that the area is being overworked or damaged or the area is to be reseeded or restocked, and may re-open the areas as provided in Parks and Wildlife Code, §76.115.

                                  (2) An order to close an area shall state the criteria used by the director to determine that the closure is warranted.

                                  (3) The department shall consult with members of the oyster industry regarding the management of oyster beds in the state.

                                  (4) For the purposes of this section an area will include those designated by the Department of State Health Services as "Approved" and "Conditionally Approved" or other areas based on evaluation by the department.

                                  (5) No person may harvest oysters in an area closed by order of the commission or the executive director.

                         (2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of this paragraph cease effect on November 1, 2016.

                                  (A) Galveston Bay. The area eastward of a line beginning at 29° 25’ 51.3’’N, 94° 42’ 46.2’’W (the Intracoastal Waterway Channel Marker 4 at Sievers Cove ); thence to 29° 26’ 17.2’’N, 94° 43’ 28.9’’W (Galveston Shellfish Marker A); thence to 29° 26’ 32.7’’N, 94° 43’ 54.5’’W (Galveston Shellfish Marker B); thence to 29° 26’ 57.5’’N, 94° 44’ 35.5’’W (Galveston Shellfish Marker C); thence to 29° 27’ 17.2’’N, 94° 45’ 07.9’’W (Galveston Shellfish Marker D); thence to 29° 27’ 39.0’’N, 94° 45’ 44.0’’W (Galveston Shellfish Marker E); thence to 29° 28’ 01.2’’N, 94° 46’ 20.7’’W (Galveston Shellfish Marker F); thence to 29° 28’ 19.7’’N, 94° 46’ 51.2’’W (Galveston Shellfish Marker G); thence to 29° 28’ 42.0’’N, 94° 47’ 28.0’’W (Galveston Shellfish Marker H); thence to 29° 29’ 13.2’’N, 94° 46’ 59.3’’W (Galveston Shellfish Marker I); thence to 29° 29’ 45.4’’N, 94° 46’ 29.6’’W (Galveston Shellfish Marker J); thence to 29° 30’ 14.6’’N, 94° 46’ 02.8’’W (Galveston Shellfish Marker K); thence to 29° 30’ 45.3’’N, 94° 45’ 34.5’’W (Galveston Shellfish Marker L); thence to 29° 31’ 39.6”N, 94° 45’ 07.8”W (the two-story tan house with the orange roof).

                                  (B) Matagorda Bay. The area within a line beginning at 28° 34’ 18.8”N, 96° 14’ 08.4”W (corner marker buoy A); thence to 28° 34’ 15.7N, 96° 13’ 59.4”W (corner marker buoy B); thence to 28° 33’ 53.8”N, 96° 14’ 19.5W (corner marker buoy C); thence to 28° 33’ 57.0”N, 96° 14’ 28.5”W (corner marker buoy D); and thence to 28° 34’ 18.8”N, 96° 14’ 08.4”W (corner marker buoy A).

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt.

         Issued in Austin, Texas, on


Work Session Item No. 10
Presenter: Monica McGarrity

Work Session
Permits to Sell Nongame Fish Taken from Public Water
January 22, 2014

I.       Executive Summary:  This item seeks permission to publish a proposed repeal and new rule governing the denial and appeal of denial of permits to sell nongame fish. The proposed new rule would:

  • Eliminate the current absolute bar to permit issuance or renewal on the basis of a single conviction or pending or unresolved citation for any violation of any section of the Parks and Wildlife Code or any regulation of the Parks and Wildlife Commission (the commission) within 12 months;
  • Implement criteria currently used by the department with other permittees for denying permit issuance on the basis of violation(s) of specific sections of the Parks and Wildlife Code or department regulations, as well as administrative and criminal violations;
  • Repeal the current rule governing appeal of a decision to deny issuance or renewal of a permit;
  • Implement the process used in other department permit programs for reviewing an agency decision to deny permit issuance or repeal.

II.        Discussion: Responsibility for regulating the take, possession, propagation transportation, sale, importation, or exportation of nongame species of fish or wildlife is delegated to the commission under Parks and Wildlife Code, Chapter 67. Current rules regarding permits that authorize the sale of nongame fish taken from public waters contain provisions governing permit denial and appeal of permit denial that are problematic or obsolete. Staff recommends that the provisions should be amended to allow more discretion regarding permit issuance (including renewal) and to provide a review of department decisions to deny permit issuance.

Attachments – 1

  1. Exhibit A – Proposed Rule

Work Session Item No. 10
Exhibit A

PERMITS TO SELL NONGAME FISH TAKEN FROM PUBLIC WATER

Proposal Preamble

1. Introduction.

         The Texas Parks and Wildlife Department proposes the repeal of §57.384, concerning Permit Denial and §57.385, concerning Appeal and adoption of new §57.384, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance.

         Under the provisions of Parks and Wildlife Code, §67.0041, the department is authorized to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of nongame species of fish or wildlife. Current department regulations governing the sale of nongame fish taken from public water include provisions for permit denial (§57.385) and appeal of permit denial (§57.385). Those rules were promulgated in 1997.  The proposal would update those rules to be more consistent with other rules regarding the issuance and renewal of permits and the review of agency decisions to refuse issuance or renewal of permits.

         Over the last several years, the Parks and Wildlife Commission (Commission) has adopted rules to more clearly establish criteria under which the department could refuse to issue or renew certain permits and to establish an internal process by which a permit applicant could seek a review of an agency decision to refuse permit issuance or renewal.   See, e.g., 31 Tex. Admin. Code §§57.122, 57.253, 57.399, 65.266, 65.363.  The proposed repeals and new section would replace current §§57.384 and 57.385 with a new §57.384 that sets forth the conditions under which the department could refuse to issue or renew a permit to sell nongame fish taken from public water. The proposed new section also would establish a process for reviewing an agency decision to refuse issuance or renewal of a permit, which is similar to the process used in connection with other department permits.

         Proposed new §57.384(a)(1)-(2) would recapitulate the provisions of current §57.384(3)-(4) to continue the requirement that a permit not be issued for an activity that would be biologically detrimental to the target species, to a threatened or endangered species, or to other aquatic life and also to continue the requirement that a permit not be issued for an activity that would be inconsistent with department management goals and objectives.  Similarly, proposed new §57.384(a)(3) recapitulates the provisions of current §57.384(5), to continue the requirement that a permit not be issued if the applicant fails to comply with the requirements of the subchapter.

         Current §57.384(a)(1), provides that the department will not issue or renew a permit to sell nongame fish taken from public fresh water if the applicant “has been finally convicted of a violation of the Parks and Wildlife Code or any rule, regulation, or proclamation issued by the Commission within the previous 12 months.”  This provision prohibits the issuance or renewal of a permit for any violation of the Parks and Wildlife Code or a regulation of the Commission, while at the same time does not allow permit denial based on a conviction more than 12 months prior to the application.

         The proposed new §57.384 is intended to provide a correlation between the permit privilege being accorded and a record of behavior that indicates a disregard for rules governing activities related to the permit.  Therefore, proposed new §57.384(a)(4) would set forth the criteria to be considered in determining whether to refuse to issue or renew a permit.  Therefore, the proposal will allow department staff to take into account the applicant’s history of any such major violations in deciding to issue or renew a permit. For that reason, the proposed new rule would allow the department to refuse permit issuance to any person who has been convicted of, pleaded nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code, Chapters 66 (Fish and Aquatic Plants), 67 (Nongame Species), 68 (Endangered Species), 76 (Oysters), 77 (Shrimp) 78 (Clams and Mussels) or a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or who has been convicted of, pleaded guilty or nolo contendere to, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371-3378 (the Lacey Act).

         The premise underlying the proposal is that a person who has pleaded guilty to, been convicted of or received deferred adjudication for a serious violation of state law involving aquatic and wildlife resources, or who has been convicted, received deferred adjudication, pre-trial diversion, or assessed a civil penalty for a Lacey Act violation has demonstrated a disregard for laws intended to protect the state’s aquatic and wildlife resources.

         The denial of issuance or renewal of a permit based on a guilty plea, conviction, deferred adjudication, pretrial diversion, plea of nolo contendere or civil penalty will not be automatic, but will be within the discretion of the department.  Factors that may be considered by the department in determining whether to issue or renew a permit based on the proposed new criteria would include, but not be limited to, the nature and seriousness of the offense(s), the number of offenses, the existence or absence of a history of offenses, the length of time between the offense and the permit application, the applicant’s efforts towards rehabilitation, and the accuracy of the information provided by the applicant regarding the applicant’s prior permit history.

         Proposed new subsection (b) would provide a mechanism for persons who have been denied permit issuance or renewal to have the opportunity to have such decisions reviewed by department managers. Although current §57.385 addresses a process to appeal an agency decision to deny permit issuance or renewal, the use of an informal appeal process will help ensure that decisions affecting permit privileges are consistent with applicable policy and procedures.  The informal appeal process will not supplant other legal remedies available to the permit applicant.

2. Fiscal Note.

         Dr. Earl W. Chilton II, Aquatic Habitat Enhancement Program Director has determined that for each of the first five years that the proposed rules will be in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed rules.

3. Public Benefit/Cost Note.

         Dr. Earl W. Chilton II, Aquatic Habitat Enhancement Program Director also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be greater consistency in department permit denial and review processes, a more streamlined permit denial process, and the ability of the department to consider  circumstances surrounding violations in making decisions regarding permit denials.

         (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The proposed rules will not result in adverse economic effects on persons required to comply.

         (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

4. Request for Public Comment

         Comments on the proposal may be submitted to Monica McGarrity, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8292; email: monica.mcgarrity@tpwd.texas.gov.

5. Statutory Authority for New Rules

         The new rule is proposed under the authority of Parks and Wildlife Code, §67.004, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

         The proposed rule affects Parks and Wildlife Code, Chapter 67.

6. Rule text.

         §57.384. Refusal to Issue; Review of Agency Decision to Refuse Issuance.

                 (a) The department may refuse permit issuance or renewal if:

                         (1) the prospective take of nongame fish is determined by the department to be detrimental to the target species, species listed as endangered or threatened, or any other aquatic species;

                         (2) the prospective take of nongame fish cannot be accomplished in a manner consistent with the management goals and objectives of the department;

                         (3) the applicant or assistant(s) seeking renewal is not in  compliance with provisions of this subchapter; or

                         (4) the applicant or assistant(s) have been:

                                  (A) convicted of, pleaded guilty or nolo contendere to, or received deferred adjudication for:

                                          (i) a violation of Parks and Wildlife Code, Chapters 66, 67, 68, 76, 77, or 78 or

                                          (ii) a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or

                                  (B) convicted, pleaded guilty or nolo contendere, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371-3378 (the Lacey Act).

                 (b) An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit or permit renewal.

                                  (1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall submit a written request to the department within 10 working days of being notified by the department of permit denial.

                                  (2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for review. The decision of the review panel shall be final.

                                  (3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

                                          (A) the Deputy Executive Director for Natural Resources (or his or her designee);

                                          (B) the Director of the Inland Fisheries Division (or his or her designee);, as appropriate; and

                                          (C) a department employee designated by the Director of the Inland Fisheries Division.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt.

         Issued in Austin, Texas on

7. Statutory Authority for Repeals

         The repeals are proposed under the authority of Parks and Wildlife Code, §67.004, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

         The proposed repeals affect Parks and Wildlife Code, Chapter 67.

         §57.384. Permit Denial.

         §57.385. Appeal.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt.

         Issued in Austin, Texas on