Work Session Item No. 1
Presenter: Carter Smith

Work Session
TPWD Land and Water Resources Conservation and Recreation Plan
August 24, 2016

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, that included broad input from stakeholders and the general public.  Minor revisions continue to be made to the Plan. The 2015 version of the 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
August 24, 2016

I.             Executive Summary: Staff will present an update of the Fiscal Year (FY) 2018-2019 Legislative Appropriations Request (LAR), a summary of the FY 2017 Operating and Capital Budget, and the Texas Parks and Wildlife (TPW) Commission’s Budget and Investment policies.

II.     Discussion:

• Staff will provide an update on the FY 2018-2019 LAR
• Staff will present and discuss the FY 2017 Operating and Capital Budget
• Staff will summarize the Commission’s Budget Policy and Investment Policy

III.       Recommendation: At the Commission Meeting on Thursday, staff will recommend that the Texas Parks and Wildlife Commission adopt the following motion:

“The Executive Director is authorized to expend funds to operate the Texas Parks and Wildlife Department in accordance with the proposed FY 2017 Operating and Capital Budget (Exhibits A, B) and approves expenditure of FY 2017 Texas Parks and Wildlife Conservation and Capital Account funds as budgeted. The TPW Commission also approves the Budget Policy (Exhibit C) and the Investment Policy (Exhibit D).”

Work Session Item No. 2
Exhibit A

FY 2017 Agency Budget by Strategy

Work Session Item No. 2
Exhibit B

FY 2017 Operating and Capital Budget by Division/Object of Expense

Note: The above FTE numbers are budgeted FTEs. GAA FTE cap for TPWD is 3,143.2.

Work Session Item No. 2
Exhibit C

BUDGET POLICY (CP-009)

It is the policy of the Texas Parks and Wildlife Commission to authorize the Executive Director to approve and execute or have executed on his behalf, expenditures, budget adjustments and transfers as follows:

1. Adjust the budget to bring unexpended balances forward from prior year approved budgets.
2. Adjust the budget for transfers between budgetary units, major expense categories, or line items.
3. Adjust the budget to increase funds to allow payment of appraisal fees, witness fees, and investigation expenses on land acquisition and construction projects.
4. Approve and/or execute contracts and interagency agreements necessary in the daily operation of the Department.  Revenues derived from interagency agreements may be budgeted and expended.
5. Adjust the budget for appropriated revenues, such as sale of equipment, donations, concessions, escrow, refunds, insurance proceeds, and publications revenue, so long as the expenditures are in agreement with the stated program goals and there will be sufficient cash during the fiscal year.
6. Approve and/or execute construction, repair, or renovation budgets, contracts, interagency agreements, and change orders if necessary to complete a project as approved by the Commission.  Adjust the budget from one Department facility major repair or development project to another or from available revenue to cover increased project costs or changes in scope.
7. Allocate super combo license revenue to the related stamp funds according to the documented methodology and authorize the related transfers of revenue to appropriate accounts.
8. Adjust the budget to cover the costs of lawsuits or settlements if deemed to be in the best interest of Texas Parks and Wildlife.
9. Adjust the budget to place a Department facility into reasonable operation when its condition poses a health or safety hazard or seriously hampers its ability to function.
10. Authorize classification changes anytime during a budgetary year, providing that such changes have been thoroughly justified and funds are available.
11. Increase the number of positions when new facilities are placed into operation and/or new programs are implemented, staying within the authorized FTE limit.
12. Adjust the budget to make capital expenditures for construction projects funded in part with proceeds of bonds issued by the Texas Public Finance Authority.
13. Approve and/or execute the reimbursement of construction project costs with the proceeds of tax-exempt bonds issued by the Texas Public Finance Authority, pursuant to federal Internal Revenue Code guidelines.
14. The Chair or Vice Chair of the Commission, or a Commissioner designee of the Chair or Vice Chair, is authorized to increase, decrease or otherwise adjust the budget during the fiscal year based on revenue and expenditure information and document those actions as noted below.  Any budget adjustments that exceed a threshold of $250,000, excluding federal and bond funds, require the prior approval of the Chair, Vice Chair, or Commissioner designee through such means as a conference call or memo. Donations or gifts exceeding $500 shall be accepted by the Chair, Vice Chair, or Commissioner designee on a monthly basis, with Commission acknowledgement of the acceptance of the donations at each scheduled Commission meeting.

Subject to notification of the TPW Commission of any changes to previously discussed purposes or uses of funds, the Department is authorized to use dedicated accounts and sub-accounts for purposes consistent with those outlined in relevant statutory provisions or administrative rules as set forth in the Texas Administrative Code.

This policy shall rescind any existing policy on budget adjustments and transfers.

             APPROVED this the 25th day of August 2016.

In official recognition of the adoption of this resolution in a lawfully called public meeting of the Texas Parks and Wildlife Commission, we hereby affix our signatures this 25th day of August 2016.

Work Session Item No. 2
Exhibit D

INVESTMENT POLICY (CP-016)

All funds paid to Texas Parks and Wildlife Department (TPWD) pursuant to the Parks and Wildlife Code or allocated to TPWD per  §151.801 of the Texas Tax Code are required by §11.042 of the Parks and Wildlife Code to be deposited in the treasury with two exceptions, the Operation Game Thief Fund and the Texas Park Development Fund.  The Operation Game Thief Fund is held outside the treasury and, as authorized by Parks and Wildlife Code §12.201, is invested according to rules adopted by the Operation Game Thief Committee.  Therefore, the investment of the Operation Game Thief Fund is not governed by this Investment Policy. Although not required, the Texas Park Development Fund is and will continue to be deposited in the treasury and invested by the Comptroller.

Parks and Wildlife Code §11.065 authorizes the commission to adopt rules for investment of the Lifetime License Endowment Account.  The Lifetime License Endowment Account is and will continue to be deposited in the treasury and invested by the Comptroller.

In addition, TPWD has established an account at The Texas Treasury Safekeeping Trust Company, an organization created by the Texas Legislature to invest and safeguard funds for the state and various subdivisions whose sole shareholder and director is the Texas Comptroller of Public Accounts.  TPWD’s account at The Texas Treasury Safekeeping Trust Company is for the purpose of accepting donations of marketable securities which shall be held only until accepted by the Commission.  Donations of marketable securities shall be sold promptly upon acceptance by the Commission and the proceeds shall be deposited into the treasury.

I.       Objectives of TPWD

1. Suitability of the investment to TPWD requirements
2. Preservation and safety of principal
3. Liquidity
4. Marketability
5. Diversification of the portfolio
6. Yield

II.  Policy Guidelines

1. TPWD funds shall be held in the state treasury and invested by the Comptroller under Texas Government Code §404.024.
2. Mitigation funds distributed to TPWD shall be deposited in the state treasury and accounted for separately.
3. Bank accounts authorized by the General Appropriations Act of the 84th Legislature, Article VI, Texas Parks and Wildlife Department, Rider 3, and Texas Government Code §403.241-403.252 (petty cash accounts, imprest accounts for the purchase of evidence) should be either interest-bearing accounts or accounts with no fees.  Any interest earned in excess of bank fees shall be deposited in the General Revenue Fund. The establishment of any petty cash or imprest bank accounts must be approved by the Department’s Chief Financial Officer (Signature and Approval Policy OP-03-03).  Continuance of bank accounts is dependent upon timely and accurate record keeping and reporting.

III. Texas Public Funds Investment Act:  Investment Officer Designation and Reporting

1. Pursuant to Texas Government Code §2256.004, the Texas Public Funds Investment Act (PFIA) does not apply to TPWD funds which are deposited into the state treasury and which are managed by the Texas Comptroller of Public Accounts in accordance with Texas Government Code §404.024.  Therefore, TPWD does not presently have any funds on deposit outside the treasury subject to the PFIA.
2. In the event that TPWD funds are deposited outside of the state treasury and become subject to the PFIA, the TPWD Executive Director, or designee, shall identify and designate an Investment Officer.
   1. The designated TPWD Investment Officer, or Officers, shall perform the functions and responsibilities required by the PFIA.
   2. The Investment Officer(s) shall attend investment training at least once each state fiscal biennium from a program recommended by the Texas Higher Education Coordinating Board.
   3. The Investment Officers are required to disclose any personal business or familial relationship with a business organization offering to sell investments to TPWD.
   4. The Investment Officers are required to provide a written copy of the investment policy to every business organization engaging in investment activity with TPWD and must obtain written acknowledgement that the policy was received and reviewed and appropriate procedures and controls are in place to preclude unauthorized transactions.
   5. The Investment Officers will ensure that all TPWD funds outside the state treasury held in bank accounts are insured by Federal Deposit Insurance Corporation (FDIC) up to the FDIC deposit insurance limit, currently $250,000.  If at any time deposits exceed the FDIC deposit insurance limit in any financial institution, the custodian of the affected account(s) is required to obtain collateralization that meets state requirements to cover the amount exceeding the deposit insurance limit.
   6. Reports of investment transactions for all funds managed under the PFIA shall be prepared within 45 days of the end of each quarter and distributed to members of the Texas Parks and Wildlife Commission, the Executive Director and the Chief Financial Officer as required by § 2256.023.  These quarterly reports shall comply with state requirements for content.
   7. To the extent that the Texas Legislature modifies any provision of the PFIA that is applicable to TPWD’s funds, a report summarizing those legislative changes to the PFIA shall be prepared and distributed to members of the Texas Parks and Wildlife Commission, the Executive Director and the Chief Financial Officer within six months of the end of a regular legislative session.

IV.       Review — The Texas Parks and Wildlife Commission shall review this policy at least annually.

         APPROVED this the 25th day of August 2016.

In official recognition of the adoption of this resolution in a lawfully called public meeting of the Texas Parks and Wildlife Commission, we hereby affix our signatures this 25th day of August 2016.

Work Session Item No. 3
Presenter: Ann Bright

Work Session
Rule Review
Request Permission to Publish Proposed Changes in the Texas Register
August 24, 2016

I.       Executive Summary: As required by the Administrative Procedure Act, Texas Parks and Wildlife Department (TPWD) is undertaking a review of each TPWD rule under its jurisdiction.  TPWD staff will update the Commission on this process and seek permission to undertake additional actions in connection with this process.

II.     Discussion: Section 2001.039 of the Texas Government Code requires state agencies to review each rule under its jurisdiction at least once every four years.  The review must include an assessment of whether the reasons for initially adopting a rule continue to exist. Notice of the proposed review must be published in the Texas Register for public comment. Following the review, rules must be readopted, adopted with changes, or repealed, based on the review.

The TPWD rule review process normally occurs over three Commission meetings.  In the first meeting, staff seeks permission to begin the rule review process and to publish notice of the rule review in the Texas Register.  In the second meeting, staff seeks permission to publish any proposed rule changes or repeals resulting from the rule review in the Texas Register for public comment.  In the third meeting, staff seeks adoption of proposed rule changes, and adoption of the completed rule review (i.e., readoption of the remaining rules).

In May, staff informed the Commission of the initiation of the review of rules in Chapter 51, Executive; Chapter 52, Stocking Policy; Chapter 55, Law Enforcement; Chapter 60, Maintenance Review, and Chapter 61, Design & Construction. Notice of TPWD’s intent to review these rules was published in the July 22, 2016 Texas Register (41 Tex. Reg. 5447). Staff has reviewed those rules and is now seeking permission to publish purposed changes to Chapter 51 and 52 in the Texas Register to solicit public comment.  No changes are recommended to Chapters 55, 60, or 61.

Work Session Item No. 3
Exhibit A

Chapter 51-Executive

Subchapter J, Contract Dispute Resolution

§51.204, Notification of Claim from Contractor

Change “chief administrative officer of the unit” to “division director.”

§51.20, Timetable

Change “unit” to “division” and change “chief administrative officer of the unit” to “division director.”

§51.213, Request for Contested Case Hearing

Change “chief administrative officer” to “Executive Director, or designee.”

Subchapter L, Vendor Dispute Resolution

§51.350, Vendor Protest Procedures

Modify position title of “Purchasing and Contracting Director.”

Subchapter Q, Promotional Drawings

§51.750 Promotional Drawings

Clarify that the $5,000 maximum aggregate value for packages offered through promotional drawing is exclusive of items donated to the department.

Chapter 52-Stocking Policy

§52.104 Policy of the Department

Make minor grammatical edits.

§52.401 Fish Stocking in Private Waters

• Modify to state that receiving waters and stocked fish may not be associated with any commercial operations.
• Clarify that the required written agreement must be signed by the executive director.

Work Session Item No. 4
Presenter: Brandi Reeder

Work Session
Commercial Fishing - Individual Fishing Quota Rules
Request Permission to Publish Proposed Rules in the Texas Register
August 24, 2016

I.       Executive Summary: This item seeks permission to publish a proposed amendment to the Statewide Commercial Fisheries Proclamation to update references to federal laws governing the take and possession of grouper, tilefish, and red snapper under the Individual Fishing Quota (IFQ) system, and to clarify that the provisions of those federal laws apply in state waters.

II.     Discussion: Under Parks and Wildlife Code, §67.004, the Commission is required to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish that the department considers necessary to manage the species. The Individual Fishing Quota (IFQ) is a federal regulatory program governing the commercial harvest of certain species of fish in federal waters. Federal rules require a federal permit and an IFQ vessel endorsement for the harvest of Gulf of Mexico Reef Fish, including red snapper, grouper, and tilefish. In 2010, the Commission adopted by reference the provisions of 50 CFR §622.16 and §622.20, in order to eliminate the repetition of voluminous federal regulations in the department’s regulations. In 2013, the National Oceanic and Atmospheric Administration, the federal agency responsible for regulating fisheries resources and habitats in federal waters, nonsubstantively reorganized the provisions of 50 CFR Part 622 (78 FR 22949). As a result of that reorganization, the references to federal rules in 31 TAC §57.994 are inaccurate and should be updated. Additionally, the proposed amendment would add language to clarify that by adopting the federal rules by reference, those rules would be enforceable in state waters.

Work Session Item No. 4
Exhibit A

INDIVIDUAL FISHING QUOTA REGULATIONS

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §57.994, concerning Individual Fishing Quota (IFQ). The proposed amendment would update references to federal rules adopted by reference and clarify that the federal rules apply in state waters.

         The IFQ is a federal regulatory program governing the commercial harvest of certain species of fish in federal waters. Federal rules require a federal permit and a federal Individual Fishing Quota (IFQ) vessel endorsement for the harvest of Gulf of Mexico Reef Fish. The IFQ is an allocation of a percentage of the total allowable harvest to individuals engaged in commercial fishing for certain species in federal waters, who in turn must comply with certain documentation and reporting requirements. The new rule is necessary to allow enforcement of these requirements in state as well as federal jurisdiction and to insure that fish landed in Texas are landed in compliance with federal limits.

         In 2013 the National Oceanic and Atmospheric Administration, the federal agency responsible for regulating fisheries resources and habitats in federal waters, nonsubstantively reorganized the provisions of 50 CFR Part 622 (78 FR 22949). As a result of that reorganization, the references to federal rules in §57.994 are inaccurate and should be updated.

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

         Mr. Riechers 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 a single enforcement standard that eliminates potential confusion in enforcement and compliance.

         (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. The department has determined that since under federal law it is illegal to land red snapper, grouper, or tilefish in Texas that are not harvested, possessed, transported, or landed in compliance with federal law, there is no direct adverse economic effect on small or micro-businesses or persons required to comply as a result of the proposed rule, since it creates a state regulation mirroring the federal regulations that must be complied with anyway.

         (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 rule as proposed will not impact local economies.

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

         (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 rule.

4. Request for Public Comment.

Work Session Item No. 7
Presenter: Lance Robinson

Work Session
Oyster Lease Rules
Request Permission to Publish Proposed Rules in the Texas Register
August 24, 2016

I.    Executive Summary: Staff will provide an overview of recommended changes to the Statewide Recreational and Commercial Fishing Proclamation regarding the renewal and expansion of the oyster certificates of location (private oyster leases) program and seek permission to publish proposed rules in the Texas Register for public comment.

II.   Discussion:  Oyster leases have been used for decades as a tool to reduce the risk to public health for oysters growing in areas closed by the Texas Department of State Health Services due to high bacterial levels. Under Texas Parks and Wildlife Department oversight, leaseholders are permitted to move oysters out of these restricted areas and place them onto their lease where the oysters must remain for a minimum of two weeks to allow the oysters to purge themselves of bacteria. This program minimizes the risk to public health and meets the requirements of the National Shellfish Sanitation Program under the Food and Drug Administration which allows the interstate commerce of oysters from Texas.

Currently there are 43 leases totaling 2,322 acres, all in Galveston Bay. The term for these leases is 15 years and are set to expire February 28, 2017. Proposed amendments to §58.30 (Private Oyster Leases) would include the renewal of existing commercial oyster leases and establish protocols to allow for the expansion of oyster leases for both commercial and restoration purposes into other bay systems.

Work Session Item No. 12
Presenter: Ted Hollingsworth

Work Session
Pipeline Corridor – Jefferson County
Approximately 30 Acres at the J.D. Murphree Wildlife Management Area
August 24, 2016

I.       Executive Summary: GT Logistics, LLC (GT) requests an easement for a pipeline corridor across the J.D. Murphree Wildlife Management Area (WMA) for the installation of up to ten (10) 30” diameter petrochemical product pipelines.

II.     Discussion: Acquisition of the land that now makes up the J.D. Murphree WMA began in 1959. The 24,498-acre WMA, located on the Chenier plains and marshes of the southeast Texas coast, protects a vast mosaic of freshwater, intermediate and tidal wetlands, including lakes, bayous and marshes. Located close to the Sabine Ship Channel and within a couple miles of extensive petrochemical refining and bulk transfer facilities, the WMA has regularly found itself in the path of industry-related infrastructure development, especially pipelines.

GT has acquired a bulk petrochemical transfer and storage facility immediately east of the north end of the WMA, and a dock facility on the ship channel a few miles away. The most efficient way to get products from the storage facility to the dock facility is by pipelines, and due to existing development, including a water supply reservoir for the Valero/Premcor refining facility, the only feasible and prudent route for the proposed pipeline corridor is through the WMA. The length of the corridor requested is approximately 6,500’ long by 180’ – 200’ wide. Staff are working with GT’s consultants to identify construction and restoration methods that will minimize short and long-term impacts to the WMA.

Work Session Item No. 12
Exhibit A

Location Map for JD Murphree Wildlife Management Area in Jefferson County

Work Session Item No. 12
Exhibit B

Vicinity Map for JD Murphree WMA – 5 Miles South of Port Arthur

Work Session Item No. 12
Exhibit C

Site Map for Subject Pipeline Corridor Easement
WMA Outlined in Orange
Requested Easement Shown in White

Work Session Item No. 13
Presenter: Ted Hollingsworth

Work Session
Exchange of Land – Bexar County
Approximately 9 Acres at Government Canyon State Natural Area
August 24, 2016

I.       Executive Summary: Texas Parks and Wildlife Department (TPWD) staff has been working with an adjacent private landowner on a proposal to exchange an irregularly-shaped 9.35-acre tract of land for a 9.35-acre tract of land that has greater conservation and recreation value for the Government Canyon State Natural Area (SNA).

II.     Discussion: In 2014, the City of San Antonio (COSA) transferred 3,021 acres to Texas Parks and Wildlife Department, consisting of approximately 20 tracts, for addition to Government Canyon SNA. One of those tracts, in the southern extremity of the SNA, is roughly a mile long by 80 feet wide, and was acquired to provide access to another tract prior to its addition to the SNA. This tract is not over the Edwards Aquifer recharge zone and is adjacent to a residential neighborhood its entire length. The neighbor opposite the subdivision owns land adjacent to the main body of the SNA, which sits over the recharge zone and has high habitat values. This neighbor proposes to exchange with TPWD a tract of no less than 9.35 acres and no less in appraised value than the appraised value of the TPWD tract to be exchanged. In addition, the neighbor will grant TPWD an easement across his land that will provide access to the southern end of the SNA from a public street. Staff of the SNA believe this exchange will reduce management liabilities associated with the long narrow strip of TPWD land, and will increase the net conservation and recreation values of the SNA. Staff of the SNA has coordinated with COSA to ensure all parties concur with the proposed exchange.

Work Session Item No. 13
Exhibit A

Location Map for Government Canyon State Natural Area in Bexar County

Work Session Item No. 13
Exhibit B

Vicinity Map for Government Canyon State Natural Area in Northwest San Antonio

Work Session Item No. 13
Exhibit C

Site Map Showing Location of Subject Tracts at Government Canyon State Natural Area

Work Session Item No. 13
Exhibit D

Close-Up Site Map Showing 9-acre Tracts Proposed for Exchange

Work Session Item No. 14
Presenter: Ann Bright

(Executive Session Only)
Update on Regulatory Litigation
August 24, 2016

I.       Executive Summary:  Attorneys for the Texas Parks and Wildlife Department (TPWD) will update and advise the Commission regarding the following litigation impacting TPWD’s regulatory authority:

• Ken Bailey and Bradly Peterson v. Carter Smith, Executive Director, Clayton Wolf, Wildlife Division Director, Mitch Lockwood, Big Game Program Director and Texas Parks and Wildlife Department, Cause No. D-1-GN-15-004391, in the District Court of Travis County, Texas.