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Work Session

Wednesday, November 6, 2013
9:00 a.m.

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

Chairman T. Dan Friedkin, Commission Chair
Carter Smith, Executive Director

Approval of the Previous Minutes from the Work Session held August 21, 2013

    Land and Water Plan

  1. Update on TPWD Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan—Carter Smith
    • New Agency Dashboard Management Tool
    • Internal Affairs Update
    • Port O’Connor Fisheries Lab
    • License Sales System
    • Stocking Report for FY 2013
    • Year-From-Purchase License Analysis Update
    • LCRA Request to TCEQ for Emergency Relief
  2. Financial

  3. Deepwater Horizon Spill—Funding and Project Update—Carter Smith, Robin Riechers
  4. Regulations

  5. Disabled Veteran License—Adoption of Rule Amendments—Ann Bright, Craig Hunter (Action Item No. 4)
  6. Use of Noxious or Toxic Substances to Capture Nongame Wildlife—Presentation of Options—John Davis
  7. 2014-2015 Statewide Hunting Proclamation Preview Briefing—Clayton Wolf, Larry Young
  8. 2014-2015 Statewide Recreational and Commercial Fishing Proclamation Preview Briefing—Ken Kurzawski, Robin Riechers, Brandi Reeder
  9. Exotic Species Rule Amendments regarding Draining Water from Vessels and Portable Containers—Implementation of Legislation Passed During the 83rd Texas Legislature—Relating to House Bill 1241—Ken Kurzawski
    • Recommended Adoption of Proposed Changes—(Action Item No. 6)
    • Request Permission to Publish Proposed Changes in Texas Register to Address Zebra Mussels in Lake Belton
  10. Changes to Rules concerning Implementation of Legislation Passed during the 83rd Texas Legislature—Senate Bill 820—Deer Permits—Recommended Adoption of Proposed Changes—Mitch Lockwood (Action Item No. 7)
  11. Natural Resources

  12. Update on the Rangewide Plan for the Lesser Prairie Chicken—Ross Melinchuk
  13. Land Conservation—Land Acquisition

  14. Land Acquisition—Cochran County—Approximately 1,640 Acres at Yoakum Dunes Preserve—Corky Kuhlmann (Action Item No. 13)
  15. Acceptance of Land Donation—Hidalgo County—Bentsen Rio Grande Valley State Park—Corky Kuhlmann (Action Item No. 12)
  16. Land Acquisition—Calhoun County—Ted Hollingsworth (Executive Session)
  17. Land Conservation—Easement

  18. Request for Easement—Burnet County—Right of Way (ROW) Easement along Park Road 4 at Longhorn Cavern State Park—Corky Kuhlmann (Executive Session and Action Item No. 11)

Work Session Item No. 1
Presenter: Carter Smith

Work Session
TPWD Land and Water Resources Conservation and Recreation Plan
November 6, 2013

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 & Wild. 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
Presenters: Carter Smith
Robin Riechers

Work Session
Deep Water Horizon Oil Spill Funding and Project Update
November 6, 2013

I.       Executive Summary:  The Deepwater Horizon Oil Spill has or will result in several sources of available restoration funding being provided to the states in the Gulf of Mexico.  The sources of funding will be available through 3 primary sources of funding:  1) Natural Resource Damage Assessment, 2) National Fish and Wildlife Foundation, and the 3) RESTORE Act.  A briefing regarding the status of each source of funding and the efforts that are ongoing to identify projects will be presented.

II.     Discussion:  The Deepwater Horizon Oil Spill has or will result in several sources of available restoration funding being provided to the states in the Gulf of Mexico.  The sources of funding will be available through 3 primary sources of funding:  1) Natural Resource Damage Assessment, 2) National Fish and Wildlife Foundation, and the 3) RESTORE Act.

NRDA:   A Natural Resource Damage Assessment (NRDA) is a scientific and legal process to determine natural resource damages and hold responsible parties accountable. Federal law requires the responsible parties to compensate for the injury to natural resources caused by the Deepwater Horizon spill.  BP and federal and state trustee agencies (including TPWD, the Texas Commission on Environmental Quality and the General Lawnd Office), are working together to assess the damage to natural resources and to restore those losses under the natural resource damage assessment process outlined in federal law.   BP has agreed to participate in the NRDA process with the federal and Gulf state trustees. Because the damage assessment will take many years to complete, BP has agreed to participate in early restoration.   Early restoration projects are selected and implemented upon agreement between BP and the trustees, pursuant to an Early Restoration Framework Agreement and applicable laws and regulations.

To date, BP and the trustees have formally agreed to ten restoration projects (Early Restoration Phases 1 and 2). For Phase 3, BP and the trustees have agreed in principle to an additional 29 restoration projects, including five proposed for Texas. The trustees anticipate that the early restoration process will continue in future phases.  The Deepwater Horizon NRDA process will continue until the damages are decided by a federal court, or until a settlement is reached.

NFWF:  In addition to the NRDA claims, the U.S. Department of Justice entered into criminal plea bargain agreements with two of the responsible parties, BP and Transocean.  As part of these agreements, BP agreed to pay $2.394 billion and Transocean agreed to pay $150 million in criminal penalties to the National Fish and Wildlife Foundation (NFWF), which was charged with the proper distribution and spending of the criminal fines.  NFWF has set up the Gulf Environmental Benefit Fund (Fund) to provide restoration funding for the five Gulf States.

RESTORE:  The Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012, or the RESTORE Act, was passed by Congress on June 29, 2012, and signed into law by President Obama on July 6, 2012. The RESTORE Act envisions a regional approach to restoring the long-term health of the valuable natural ecosystems and economy of the Gulf Coast region. The RESTORE Act dedicates 80 percent of any civil and administrative penalties paid under the Clean Water Act, after the date of enactment, by responsible parties in connection with the Deepwater Horizon oil spill to the Gulf Coast Ecosystem Restoration Trust Fund for ecosystem restoration, economic recovery, and tourism promotion in the Gulf Coast region.

Due to uncertainty around a variety of factors associated with ongoing litigation, the ultimate amount of administrative and civil penalties that may be available to the Trust Fund and the timing of their availability are unknown. As a result of the settlement of Clean Water Act civil claims against Transocean Deepwater Inc. and related entities, a total of $800 million, plus interest, will be deposited in the Trust Fund within the next two years – approximately $320 million of which has already been deposited.

The Gulf Coast Ecosystem Restoration Council is charged with helping to restore the ecosystem and economy of the Gulf Coast region by developing and overseeing implementation of a Comprehensive Plan. The Council is chaired by the Secretary of the U.S. Department of Commerce and includes the Governors of the States of Alabama, Florida, Louisiana, Mississippi and Texas and the Secretaries of the U.S. Departments of Agriculture, Army, Homeland Security and the Interior, and the Administrator of the U.S. Environmental Protection Agency.  Texas Governor Rick Perry has designated Toby Baker, Commissioner, Texas Commission on Environmental Quality, as the Texas representative on the Council.


Work Session Item No. 4
Presenter: John Davis

Work Session
Use of Noxious or Toxic Substances to Capture Nongame Wildlife:
Presentation of Options November 6, 2013

I.          Executive Summary:  On March 7, 2013, the department received a petition for rulemaking from Mr. William Rulon-Miller regarding means of take for nongame wildlife.  Staff will present management options related to this issue as requested by the Commission in August, 2013.

II.     Discussion: Staff will provide a brief review of the use of noxious substances to capture nongame wildlife and present potential options for regulating the practice.


Work Session Item No. 5
Presenter: Clayton Wolf
Larry Young

Work Session
2014-2015 Statewide Hunting Proclamation
Preview Briefing
November 6, 2013

I.       Executive Summary:  This item apprises the Commission of potential changes to hunting regulations for the 2014-15 season.

II.        Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking game animals and game birds is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61 (Uniform Wildlife Regulatory Act).   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 – Potential Changes

Work Session Item No. 5
Exhibit A

Potential Changes to Hunting Regulations 2014-2015

Mule Deer

  • Implement an archery-only open season and 16-day general season in Knox County, where the season is currently closed;
  • Implement a nine-day general season in Castro, Hale, Lubbock, and Lynn counties, where the season is currently closed;
  • Clarify rules regarding utilization of antlerless mule deer permits.

Desert Bighorn Sheep

  • Reduce the current year-round open season by one month;

Squirrel

  • Extension of season in 51 East Texas counties;
  • Extension of season and elimination of daily bag and possession limits in 12 counties in the Blacklands Prairie;
  • Allow the take of squirrel by means of air rifles meeting minimum standards.

Turkey

  • Implement rules allowing use of mobile technology by hunters to check harvested Eastern turkeys.

Housekeeping

  • Clarification of rules governing possession of firearms while hunting deer or turkey during an open archery season;
  • Other nonsubstantive changes as necessary.

Work Session Item No. 6
Presenter: Ken Kurzawski
Robin Riechers
Brandi Reeder

Work Session
2014-2015 Statewide Recreational and Commercial Fishing Proclamation
Preview Briefing
November 6, 2013

I.       Executive Summary:  This item apprises the Commission of potential changes to recreational and commercial fishing regulations for the 2014-15 season.

II.        Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking freshwater and saltwater fisheries resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapters 61 (Uniform Wildlife Regulatory Act), 66 (Fish), 67 (Nongame Species), 76 (Oysters), 77 (Shrimp), and 78 (Mussels, Clams, and Crabs).  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 fisheries resources of the state.

Attachments – 1

  1. Exhibit A – Potential Changes

Work Session Item No. 6
Exhibit A

Potential Changes to Fisheries Regulations 2014-2015

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.

Coastal Fisheries

  • Temporarily close oyster harvest in East Bay for purposes of reef restoration.

Law Enforcement

  • Simplify floating gear buoy requirements

Work Session Item No. 7
Presenter: Ken Kurzawski

Work Session
Rules Pertaining to Draining Water from Vessels on Public Water
November 6, 2013

I.       Executive Summary:  This item seeks permission to publish in the Texas Register for public comment proposed amendments to rules governing the draining of water from vessels on public water.  The proposed amendments would add Bell and Coryell counties to the list of counties were persons leaving or approaching public waters are required to drain all water from their vessels.

II.     Discussion:  Under Parks and Wildlife Code, Chapter 66, the Commission is required to promulgate rules regarding the importation, possession, sale, or placement into public waters of exotic harmful or potentially harmful fish or shellfish. Under the provisions of H.B. 1241, which amended the Parks and Wildlife Code by adding §66.0073, the commission is authorized to adopt rules requiring a person leaving or approaching public water to drain from a vessel or portable container on board the vessel any water that has been collected from or has come in contact with public water.

On September 25, 2013, the department filed an emergency order to address the discovery of zebra mussel in Lake Belton. Lake Belton, Stillhouse Hollow Lake, and sections of the rivers draining these two reservoirs, Leon and Lampasas Rivers, respectively, were added to existing rules promulgated under §57.972 to control the spread of zebra mussels.

The proposed rule (located at Exhibit A) is intended primarily to control the spread of zebra mussels (Dreissena polymorpha).  The zebra mussel is a small, non-native mussel originally found in Eurasia.  It has spread throughout Europe and the U.S. and is considered to be a major environmental and industrial threat.  Zebra mussels are particularly difficult to control because they have a free-floating, microscopic larval stage called a veliger.  Any water collected from waterbodies where zebra mussels are present could contain veligers; thus, water transported from waterbodies with known zebra mussel populations is a vector for the spread of zebra mussels.

Attachments – 1

  1. Exhibit A—Proposed Rules

Work Session Item No. 7
Exhibit A

RULES REQUIRED OR AUTHORIZED BY LEGISLATION
DRAINING OF WATER FROM VESSELS
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §57.1001, concerning Draining of Water from Vessels Leaving or Approaching Public Fresh Water. The proposed amendment would add Bell and Coryell Counties to the list of counties in §57.1001(3) where restrictions on the transportation of water are warranted for the control the spread of zebra mussels (Dreissena polymorpha).

         Invasive exotic species are non-indigenous species that have been accidentally or intentionally released into an ecosystem. In the worst cases, invasive species, because they are not checked by natural competition or predators, compete directly with, prey upon, or hybridize with native species, alter habitats and food webs, threaten rare species, and generally wreak ecological havoc. Besides the obvious negative impacts to wild ecosystems, invasive exotic species also threaten agriculture, ranching, forestry, and industry.

         In 2012 the department also promulgated §57.792(k) to control the spread of zebra mussels from a section of the Red River and Lake Lavon to adjacent water bodies. The zebra mussel is a small, non-native mussel originally found in Eurasia. It has spread throughout Europe, where it is considered to be a major environmental and industrial menace. The animal appeared in North America in the late 1980s and within ten years had colonized in all five Great Lakes and the Mississippi, Tennessee, Hudson, and Ohio river basins. Since then, they have spread to additional lakes and river systems. Once zebra mussels become established in a water body, they are impossible to eradicate with the technology available today.  In 2012 the only regulatory tool available to the department was Parks and Wildlife Code, §66.007, which prohibits the possession of exotic harmful or potentially harmful fish or shellfish except as authorized by permit or rule. Since zebra mussels are a species that cannot be possessed without a permit, it is technically unlawful to possess even the microscopic larval stage of the organism, which can be present virtually everywhere in an infested water body. The provisions of §57.972(k) provided that a person could not be charged with unlawful possession of a prohibited species provided the person drained all live wells, bilges, and other receptacles or systems capable of retaining or holding water prior to the use of a public roadway.

         The 83rd Texas Legislature (Regular Session) enacted House Bill 1241, which amended Parks and Wildlife Code by adding new §66.0073 to authorize the Texas Parks and Wildlife Commission to adopt rules requiring a person leaving or approaching public water to drain from a vessel or portable container on board the vessel any water that has been collected from or has come in contact with public water. The department has determined that it is preferable to have a regulation that simply requires water to be drained from boats and receptacles than to rely on a regulation that is predicated on proving the possession of an organism that cannot be seen with the unaided eye. Therefore, §57.1001 replaced §57.972(k).

         Amendments to 57.1001(3) would add Bell and Coryell Counties to the list of 17 counties where the regulation is in effect (Collin, Cooke, Dallas, Denton, Fannin, Grayson, Hood, Jack, Kaufman, Montague, Palo Pinto, Parker, Rockwall, Stephens, Tarrant, Wise, and Young). The department has confirmed the presence of zebra mussels in Lake Belton, and Stillhouse Lake due to its proximity to Lake Belton (5 miles) is threatened with infestation by zebra mussels.  On September 25, 2013, the department filed an emergency rule to rule to address the discovery of zebra mussels in Lake Belton. The emergency rule added Lake Belton and Stillhouse Hollow to the applicability of existing rules to control the spread of zebra mussels. The proposed amendment would supplant the emergency rule on a permanent basis.

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

         Mr. Kurzawski 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 protection of public waters from the injurious environmental and economic effects of invasive exotic species.

         (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. Since the proposed rules affect only those persons who approach or depart from a body of public water and there is no cost of compliance (because the rule requires only that water receptacles be drained), the department has determined that the proposed amendments will not impose any direct adverse economic effects on small businesses or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under 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 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 proposed rule may be submitted to Ken Kurzawski, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4591 (e-mail: ken.kurzawski@tpwd.texas.gov).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §66.007, which prohibits the possession or placement into public waters of exotic fish or shellfish except as authorized by rule or permit issued by the department, and under Parks and Wildlife Code, §66.0073, which authorizes the commission to adopt rules requiring a person leaving or approaching public water to drain from a vessel or portable container on board the vessel any water that has been collected from or has come in contact with public water.

         The proposed rule affects Parks and Wildlife Code, Chapter 57, Subchapter N.

         §57.1001. Draining of Water from Vessels Leaving or Approaching Public Fresh Water. For the purposes of this section, “boat ramp” means a boat ramp, launch area, or access point that can be used to access public water, and includes parking areas, parking overflow areas, and any other area in the immediate vicinity of the ramp, launch, or access point where a vehicle, trailer, or vessel may be parked while waiting to launch or retrieve a vessel.

                 (1) General Provisions. Except as provided in paragraph (2) of this subsection, no person may use any public roadway other than a boat ramp to transport a vessel to or from a public water body in a county listed in paragraph (3) of this subsection unless all bilges, live wells, and other similar receptacles and systems holding or capable of holding water on board the vessel as a result of immersion in or transfer from the public water body have been drained.

                 (2) Exceptions. The provisions of paragraph (1) of this subsection do not apply to:

                         (A) a person travelling on a public roadway via the most direct route to another access point located on the same body of water, provided the beginning and ending of the travel occur within a single 24-hour period;

                         (B) government employees or persons under contract to a governmental entity in the performance of official duties that involve:

                                  (i) the use of a vessel to collect water in portable containers;

                                  (ii) the use of a vessel in an emergency response to a threat to human health or safety, or property;

                         (C) water contained in marine sanitary systems; or

                         (D) receptacles containing live bait purchased from a commercial bait seller, provided the person in possession of the water also possesses a dated receipt, bill of sale, or other written evidence that identifies the name and commercial location of the seller.

                 (3) This subsection applies to all public water in Bell, Collin, Cooke, Coryell, Dallas, Denton, Fannin, Grayson, Hood, Jack, Kaufman, Montague, Palo Pinto, Parker, Rockwall, Stephens, Tarrant, Wise, and Young counties.

         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. 9
Presenter: Ross Melinchuk

Work Session
Update on the Range-wide Plan for the Lesser Prairie Chicken
November 6, 2013

I.          Executive Summary:  Staff will update the Commission on the Lesser Prairie-Chicken Range-wide Conservation Plan.

II.        Discussion:  The Lesser Prairie-Chicken (LPC) is a North American grouse species that historically occupied sand sagebrush, shinnery oak, and mixed grass vegetation types of the southern Great Plains.  LPC and the habitat upon which they depend have diminished significantly across their historical range.  In December 2012, the U.S. Fish and Wildlife Service (USFWS) released a proposed rule indicating that the USFWS is considering listing the LPC as threatened under the Endangered Species Act (ESA).  A final listing determination is expected by March 2014.

Listing the LPC as threatened would primarily impact five states (Texas, New Mexico, Oklahoma, Kansas and Colorado).  The Western Association of Fish and Wildlife Agencies (WAFWA) had previously assembled an Interstate Working Group (IWG) to address issues related to the LPC.  In 2012, the IWG was charged with designing, developing, and describing through a Range-wide Plan (RWP) the conservation  activities necessary to potentially influence the final listing decision.  A final RWP was submitted to the USFWS in September 2013.

Staff will brief the Commission on the status of the LPC, the RWP, and listing decision.


Work Session Item No. 12
Presenter: Ted Hollingsworth

Work Session
Land Acquisition – Calhoun County
November 6, 2013

I. Executive Summary: Staff of TPWD is working with several partners to identify a strategy to acquire 17,337-acres in Calhoun County (the property).

II. Discussion: The property is an exceptional example of a mosaic of coastal habitats straddling a geological and soil formation known as the Ingleside Barrier Sandplain. These habitats include coastal prairie, savanna, mature live oak forests, pothole wetlands and emergent marshes. The property has 11 miles of bay and lake frontage. In addition, opportunities for public recreation are outstanding, and include hunting, fishing, paddling and nature watching.

The conservation community has been seeking ways to protect this property for decades. Now a coalition of public and private partners is working together to identify means, potentially including use of settlement funds from the BP Horizon Oil Spill, to acquire this property for donation to TPWD for development as a Wildlife Management Area (WMA) and/or state park.

Attachment

  1. Exhibit A – Location Map

Work Session Item No. 12
Exhibit A

Location Map for Calhoun County

Location Map for Calhoun County