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Commission Agenda Item No. 3
Presenter: Meredith Longoria

Action
Commercial Turtle Harvest Rules
Recommended Adoption of Proposed Changes
August 23, 2018

I.      Executive Summary:  The staff seeks adoption of proposed amendments to rules governing the commercial collection of nongame species. The proposed amendments would prohibit the commercial collection of four species of freshwater turtles (common snapping turtle, red-eared slider, smooth softshell and spiny softshell) in Texas. 

II.     Discussion:  Under Texas Parks and Wildlife Code, Chapter 67, Texas Parks and Wildlife Department (TPWD) is required to develop and administer management programs to ensure the continued ability of nongame species of fish and wildlife to perpetuate themselves successfully, and to conduct ongoing investigations of nongame fish and wildlife to develop information on populations, distribution, habitat needs, limiting factors, and any other biological or ecological data to determine appropriate management and regulatory information.

On October 3, 2017, TPWD received a petition for rulemaking requesting that the Texas Parks and Wildlife Commission (the Commission) prohibit the unlimited commercial collection of the four species of freshwater turtles mentioned above. The petitioners state that continued commercial harvest of those species is unsustainable.

Staff reviewed the petitioners’ evidence and arguments as well as TPWD data and scientific literature and have concluded that there is sufficient scientific justification at this time to prohibit the commercial collection of the common snapping turtle, red-eared slider, and softshell turtles.

At the Commission Work Session meeting on March 21, 2018, the staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the April 20, 2018 issue of the Texas Register (43 TexReg 2373).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.   Recommendation:  The staff recommends that the Commission adopt the proposed motion:

 “The Texas Parks and Wildlife Commission adopts amendments to §65.328 and §65.331, concerning Commercial Nongame Permits, with changes as necessary to the proposed text as published in the April 20, 2018, issue of the Texas Register (43 TexReg 2373).”

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 3
Exhibit A

COMMERCIAL NONGAME PERMIT RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §65.328 and §65.331, concerning Commercial Nongame Permits. The proposed amendments would, collectively, prohibit the commercial take of four species of freshwater turtles in Texas.

        The department received a petition for rulemaking in 2017 requesting the prohibition of unlimited commercial collection of four species of freshwater turtles (common snapper, red-eared slider, smooth softshell, and spiny softshell). Department staff reviewed the petitioners’ evidence and arguments as well as department data and scientific literature and have concluded that there is sufficient scientific justification to prohibit the commercial collection of all four species.

        Under Parks and Wildlife Code, Chapter 67, “nongame wildlife” is defined as “those species of vertebrate and invertebrate wildlife indigenous to Texas that are not classified as game animals, game birds, game fish, fur-bearing animals, endangered species, alligators, marine penaeid shrimp, or oysters.” Chapter 67 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,” and 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, and to charge a fee for such permits. In 1999, the Parks and Wildlife Commission adopted the first regulations expressly intended to manage nongame wildlife in the state. In 2007, the commission, based on data reported to and information collected by the department, determined that additional protective measures were needed for nongame species and adopted rules that, among other things, prohibited the commercial take of all species of turtles in public waters and on public lands, and all species of turtles other than common snapping turtle, the red-eared slider, smooth softshell, and spiny softshell on private lands and in private waters.

        Nongame species comprise over 90 percent of the wildlife species that occur in Texas. The department conducts ongoing research on many nongame species, and monitors research conducted by others. Among the nongame species of greatest concern are Chelonian species (turtles).  Because of factors such as delayed sexual maturity, long lifespans, and low reproductive and survival rates, turtles are highly sensitive to population alterations, especially in older age classes. Long lifespans, long generation times, and relatively slow growth may give the appearance that populations are stable, even after recruitment has ceased or populations reach levels below which recovery is possible. Impacts to turtle populations, such as the loss of important nesting areas or unsustainable mortality of adults, may remain undetectable until populations reach critical levels or become extirpated. Known limiting factors such as water pollution, road mortality, and habitat loss are important components in turtle declines, but commercial collecting efforts in the wild intensify the impact of those threats by removing large numbers of adults and older juveniles from wild populations. The collection for food markets has devastated turtle populations in Asia, the destination of the bulk of turtles commercially collected in Texas. Analysis of turtle population demographics consistently showed skewing to the adult age categories – the mature specimens most sought by commercial collectors for use as food product. This characteristic reflects the natural history of turtle species and their strong dependency on adult survivors to offset high mortality rates in eggs and juvenile categories. This characteristic alone makes it unlikely that populations can remain stable when high numbers of adults and older juveniles are steadily removed from a population.

        Analysis of collection and sales data from commercial collectors indicates little to no recent trade in common snapping turtles, spiny softshell turtle, or smooth softshell turtles, which suggests that local populations of those species are no longer abundant enough to support market exploitation or have been exploited to the point that populations have become unstable. An additional concern is similarity of appearance. Failure to discriminate among similar species is a substantial threat to populations of rare freshwater turtle species. Similarity of appearance between the common snapping turtle and alligator snapping turtle and among the red-eared slider and western chicken turtle, Big Bend slider, Rio Grande cooter, and Cagle’s map turtle is a serious concern in the face of mounting threats to these species. The alligator snapping turtle (Macrochelys temminckii), western chicken turtle (Deirochelys reticularia miaria), and Rio Grande cooter (Pseudemys gorzugi) have been petitioned for listing by the federal government under the Endangered Species Act, the Big Bend slider (Trachemys gaigeae) is a Species of Greatest Conservation Need (endemic to the Rio Grande River watershed) and the Cagle’s map turtle (Graptemys caglei) is the rarest map turtle species in the world, with a range that is restricted to a single stretch of the Guadalupe River. Accidental removal of even a small number of adults from rare turtle populations could have profound implications for long-term survival and persistence. Therefore, by prohibiting the commercial collection of all turtle species, the threat of negative population impacts as a result of similarity of appearance is mitigated.

        Literature Reviewed.

        In developing the rules as adopted, the department reviewed and considered the following scientific publications:

            Bailey, K. A., and C. Guyer. 1998. Demography and population status of the flattened musk turtle, Sternothrus depressus, in the Black Warrior river Basin of Alabama. Chelonian Conservation and Biology 3(1): 77-83.

Bailey, Lindley A., et al. 2008. Minimal Genetic Structure in the Rio Grande Cooter (Pseudemys Gorzugi). The Southwestern Naturalist, vol. 53, no. 3, 2008, pp. 406–411. JSTOR, JSTOR, www.jstor.org/stable/20424947.

            Behler, J. L.  1997.  Troubled times for turtles. Proceedings: conservation, restoration, and management of tortoises and turtles – an international conference.  7 p.  (Available at: http://nytts.org/proceedings/proceed.htm).

            Brooks, R. J., G. P. Brown, and D. A. Galbraith. 1991. Effects of a sudden increase in natural mortality of adults on a population of the common snapping turtle (Chelydra serpentine). Canadian Journal of Zoology 69: 1314-1320.

            Brown, Donald J., et al. 2011. Freshwater Turtle Conservation in Texas: Harvest Effects and Efficacy of the Current Management Regime. The Journal of Wildlife Management, vol. 75, no. 3, 2011, pp. 486–494. JSTOR, JSTOR, www.jstor.org/stable/41418066.

            Burke, V. J., J. L. Greene, and J. W. Gibbons. 1995. The effect of  sample size and study duration on metapopulation estimates for slider turtles (Trachemys scripta). Herpetologica 51: 451-456.
            Ceballos, C. P.  2001.  Native and exotic turtle trade in Texas.  Thesis, Texas A&M University, College Station, Texas, USA.

            Ceballos, C. P., L. A. Fitzgerald. 2004. The trade in native and exotic turtles in Texas. The Wildlife Society Bulletin 32(3):881-891.

            Congdon, J. D., A. E. Dunham, and R. C. van Loben Sels. 1993. Delayed sexual maturity and demographics of blanding’s turtles (Emydoidea blandingii): Implications for conservation and management of long-lived organisms. Conservation Biology 7: 826-833.

            Congdon, J. D., A. E. Dunham, and R. C. van Loben Sels. 1994. Demographics of common snapping turtles (chelydra serpentine): Implications for conservation and management of long-lived organisms. American Zoologist 34: 397-408.

            Congdon, J. D., r. D. Nagle, O. M. Kinney, M. Osentaski, H. W. Avery, R. C. van Loben Sels, and D. W. Tinkle. 2000. Nesting ecology and embryo mortality: Implications for hatchling success and demography of blanding’s turtles (Emydoidea blandingii). Chelonian Conservation and Biology 3(4): 569-579.

            Converse, SJ, Iverson JB, and Savidge JA  2005  Demographics of an ornate box turtle (Terrapene ornata ornata) population experiencing minimal human-induced disturbances. Ecological Applications 15:2171-2179

             Crother, B. I.  2000.  Scientific and standard English names of amphibians and reptiles of North America north of Mexico, with comments regarding confidence in our understanding.  SSAR Herpetological Circular No. 29: 1-82.

            Dixon, J. R.  2000.  Amphibians and reptiles of Texas.  Texas A&M University Press, second edition, College Station, Texas, USA.

            Dodd, C. K., Jr. 1990. Effects of habitat fragmentation on stream-dwelling species, the flattened musk turtle Sternotherus depressus. Biological Conservation 54: 33-45.

            Doroff, A. M., and L. B. Keith. 1990. Demography and ecology of an ornate box turtle (Terrapene ornate) population in south-central Wisconsin. Copeia 1990: 387-399.

            Fitzgerald, L.A., C.W. Painter, A. Reuter, and C. Hoover.  2004. Harvest and trade in reptiles of the Chihuahuan Desert Ecoregion.  TRAFFIC North America, World Wildlife Fund.  (Peer-reviewed).

            Franke, J., and T. M. Telecky.  2001.  Reptiles as pets: an examination of the trade in live reptiles in the United States.  The Humane Society of the United States.  Washington, D.C., USA.

            Garber, S. D., and J. Burger. 1995. A 20-yr study documenting the relationship between turtle decline and human recreation. Ecological Applications 5: 1151-1162.

            Gibbons, J. W. 1990. Turtle studies at SREL : A research perspective. Pages 19-44 in J. W. Gibbons (ed.). Life history and ecology of the slider turtle. Smithsonian Institution Press, Washington D.C.

            Gibbons, J. W., J. E. Lovich, A. D. Tucker, N. N. Fitzsimmons, and J. L. Greene. 2001. Demographics and ecological factors affecting conservation and management of the diamondback terrapin (Malaclemys terrapin) in South Carolina. Chelonian Conservation and Biology 4(1): 66-74

            Gibbons, J. W., J. L. Greene, and J. D. Congdon. 1983. Drought-related responses of aquatic turtle populations. Journal of Herpetology 17: 242-246.

            Gibbons, J.W., D.E. Scott, T.J. Ryan, K.A. Buhlmann, T.D. Tuberville, B.S. Metts, J.L. Greene, T. Mills, Y. Leiden, S. Poppy, and C.T. Winne. 2000. The global decline of reptiles, Déjà Vu amphibians. Bioscience 50:563-666.

            Graham, T. E., 1995. Habitat use and population parameters of the spotted turtle, Clemmys guttata, a species of special concern in Massachusetts. Chelonian Conservation and Biology 1: 207-214.

            Hall, C. D., and F. J. Cuthbert. 2000. Impact of controlled wetland drawdown on blanding’s turtles in Minnesota. Chelonian Conservation and Biology 3(4): 643-649.

            Harrel, J. B., C. M. Allen, and S. J. Herbert. 1996. Movements and habitat use of subadult alligator snapping turtles (Macroclemys teminickii) in Louisiana. American Midland Naturalist 135: 60-67.

            Heppell SS, Caswell H, and Crowder LB  2000b  Life histories and elasticity patterns: Perturbation analysis for species with minimal demographic data.  Ecology 81:654-665

            Heppell, SS, Crouse DT, and Crowder LB  1996  A model evaluation of headstarting as a management tool for long-lived turtles.  Ecological Applications 6:556-565

            Heppell SS, Crouse DT, and Crowder LB  2000a  Using Matrix Models to Focus Research and Management Efforts in Conservation.  In:  Ferson S, Burgman M (eds.),  Quantitative Methods for Conservation Biology pp 148 – 168

             Heppell, S.S. 1998.  Application of life history theory and population model analysis to turtle conservation.  Copeia 1998(2): 367-375.

            Hoover, C.  1998.  The U.S. role in the international live reptile trade: Amazon tree boas to Zululand dwarf chameleons.  Traffic North America, WWF — IUCN, Washington, D.C., USA.

            Jester S. L.  1992.  A national assessment of reptile and amphibian regulation and case study of nongame trade in Texas.  Thesis.  Texas A&M University, College Station, Texas, USA.

            King, F. W., and R. L. Burke (Editors).  1989.  Crocodilian, tuatara, and turtle species of the world: a taxonomic and geographic reference.  Association of Systematics Collections, Washington, D.C., USA.

            Lowe, H. 2009. The globalization of the turtle trade. Turtle Survival Alliance August: 47-52.

            Klemens, M. W., and D. Moll. 1995. An assessment of the effects of commercial exploitation on the pancake tortoise, Malacochersus tornieri, in Tanzania. Chelonian Conservation and Biology 1: 197-206.

            Morlock, H. and M. Harless. Turtles Perspectives and Research Malabar, Florida: Robert E. Krieger Publishing Company, 1989.

            Morreale, S. J., J. W. Gibbons, and J. D. Congdon. 1984. Significance of activity and movement in the yellow-bellied slider turtle (Pseudemys scripta). Canadian Journal of Zoology 62: 1038-1042.

            Polisar, J., and R. Horwich. 1994. Conservation of the large economically important river turtle Dermatemys mawii in Belize. Conservation Biology 8:338-342.

            Standing, K. L., T. B. Herman, M. Shallow, T. Power, I. P. Morrison. 2000. Results of the nest protection program for blandings turtle in Kejimkujik National Park, Canada: 1987-1997. Chelonian Conservation and Biology 3(4): 637-642.

            Wilbur, H.M., and P. J. Morin. 1988. Life history evolution in turtles. Pages 387-439 in C. Gans and R. B. Huey (eds.). The Biology of Reptilia. Vol 16B, Defense and Life History. Alan R. Liss, NewYork.

            Williams, E. C. and W. S. Packer. 1987. A long-term study of a box turtle (Terrapene carolina) population of Allee Memorial Woods, Indiana, with emphasis on survivorship. Herpetologica 43: 328-335.

2. Fiscal Note.

        Meredith Longoria, Nongame and Rare Species Program Leader, 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.

        Mrs. Longoria 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 rules as proposed will be the protection and conservation of publicly-owned nongame wildlife resources and the protection of native ecosystems from harmful alterations caused by overharvest of nongame species, which will be beneficial to all other organisms in the complex ecological systems associated with nongame wildlife.

        (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, micro-businesses, or rural communities. 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 impacts to small businesses, micro-businesses, or rural communities. 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. There will be adverse economic effects on small businesses, microbusinesses, and persons required to comply with the amendments as proposed, but no adverse economic impacts on rural communities. For the purposes of this analysis, the department considers that most if not all entities affected by the proposed amendments meet the statutory definition of a small business or microbusiness as set forth in Government Code, Chapter 2006. The rules as proposed would effectively prohibit commercial activities involving  freshwater turtles. Since it is unlawful to engage in commercial activities without acquiring a commercial nongame or commercial nongame dealer permit and all collections, sales, and purchases are required to be reported annually to the department, the universe of affected entities is known. The department surveyed all permittees who reported buying or selling turtles between 2015 and 2017 (n=71).  Therefore, the number of affected small businesses and microbusinesses is approximately 71. The department received 12 responses to the survey.

        With respect to red-eared sliders, one respondent reported sales worth $45 in 2017, one respondent reported sales worth $65 in 2016, and one respondent reported sales worth $50 in 2015. There were no other sales of red-eared sliders reported.

        With respect to common snapping turtles, no respondents reported sales during 2015-2017.

        With respect to spiny softshell turtles, one respondent reported sales of $5,000 in 2017 and one respondent reported sales of $1,500 in 2016. No respondents reported sales in 2015.

        With respect to smooth softshell turtles, no respondent reported sales between 2015-2017.

        On the basis of the survey responses, analysis of department records and reporting information, and anecdotal observations, the department has determined that the rules as proposed will not result in lost sales of greater than $5,000 to any permittee, and likely less, because that figure represents a single year of reported sales and therefore does not indicate any particular continuity or trend.

        The department has determined that the rules will not otherwise directly affect small businesses or micro-businesses. The department has determined that the small dollar value of any trade that might be occurring is of insignificance at either the micro or macro levels with respect to impacts on rural communities.

        The department considered several alternatives to the rules as proposed, all of which were rejected because they were either more burdensome to the regulated community or did not achieve the goal of the proposed rules.

        The first alternative was to maintain the status quo. This alternative was rejected because the department has an affirmative duty to manage nongame wildlife resources and the department has determined that without action, that duty would be breached.

        Another alternative considered was to impose a system of seasons and bag limits for the four species of turtles. This alternative was rejected because the department lacks precise enough information at the micro level to determine appropriate levels of sustainable harvest and because the department lacks the resources to monitor population impacts from harvest at that level, such a system would have to include mandatory check stations or some other form of self-reporting, which would be burdensome.

        The department also considered some form of allotment or quota system, but rejected that alternative because of difficulties inherent in determining where exploitable populations might exist and how much harvest pressure they could withstand.

        (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 Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (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.

        (F) The department has determined that because the rules as proposed are necessary to implement legislation, it is not necessary to repeal or amend any existing rule.

        (G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) not limit or repeal an existing regulation but will expand a current regulation (by prohibiting commercial collection of four species of freshwater turtles);

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Meredith Longoria at (512) 389-4410, email: meredith.longoria@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

5.  Statutory Authority.

        The amendments 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 amendments affect Parks and Wildlife Code, Chapter 67.

6. Rule text.

        §65.328. Means and Methods.

                 [(a)] Any device employed or emplaced to take or attempt to take nongame wildlife shall be marked with a gear tag. The gear tag must bear the name and address of the person using the device and the date the device was set out. The information on the gear tag must be legible. The gear tag is valid for 30 days following the date indicated on the tag.

                 [(b) Any device used to take turtles shall be set such that:]

                         [(1) the opening or entrance to the device remains above water at all times; and]

                         [(2) the holding area of trap provides a sufficient area above water to prevent trapped turtles from drowning.]

        §65.331. Commercial Activity.

                 (a) (No change.)

                 (b) Turtles.

                         [(1) The holder of a nongame permit may possess, transport, sell, import, or export common snapping turtle (Chelydra serpentina), red-eared slider (Trachemys scripta), or softshell turtle (Apalone spinifera, A. muticus) in accordance with the provisions of this subchapter, provided that take occurs on private land or private water.]

                         [(2) The holder of a nongame dealer’s permit may possess, transport, sell, resell, import, or export common snapping turtle (Chelydra serpentina), red-eared slider (Trachemys scripta), or softshell turtle (Apalone spinifera, A. muticus) in accordance with the provisions of this subchapter, provided that take occurs on private land or private water.]

                         [(3)] No person while on or in public water may possess or use a net or trap capable of catching a turtle. This section does not apply to:

                                  (1)[(A)] dip nets; or

                                  (2)[(B)] minnow traps, provided the minnow trap is less than 24 inches in length or has a throat smaller than one by three inches.

                 (c) – (d) (No change.)

                 (e) No person shall engage in commercial activity involving any nongame species not listed in subsection (d) of this section, except as provided in §65.327 of this title (relating to Permit Required) [and subsection (b) of this section]. This prohibition on commercial activity includes, but is not limited to, the following species:

Figure: 31 TAC §65.331(e)

Salamanders (No change.)

Frogs and Toads (No change.) 

Turtles

Painted Turtle (Chrysemys picta)
Chicken Turtle (Deirochelys reticularia)
Mississippi Map Turtle (Graptemys kohni)
Ouachita Map Turtle (Graptemys ouachitensis)
Texas Map Turtle (Graptemys versa)
River Cooter (Pseudemys concinna)
Rio Grande Cooter (Pseudemys gorzugi)
Texas River Cooter (Pseudemys texana)
Eastern Box Turtle (Terrapene carolina)
Ornate Box Turtle (Terrapene ornata)
Big Bend Slider (Trachemys gaigeae)

Red-eared slider (Trachemys scripta)
Yellow Mud Turtle (Kinosternon flavescens)
Eastern Mud Turtle (Kinosternon subrubrum)
Razor-backed Musk Turtle (Sternotherus carinatus)
Stinkpot (Sternotherus odoratus)

Common snapping turtle (Chelydra serpentina)

Spiny softshell turtle (Apalone spinifera)       

Smooth softshell turtle (Apalone mutica)       

Lizards (No change.) 

Snakes (No change.)

Mammals (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