Commission Agenda Item No. 3
Presenter: Robin Riechers

Action
Coastal Management Area Classification and Conduct Rules
Recommended Adoption of Proposed Rules
November 2, 2017

I.      Executive Summary: This item is to consider adoption of proposed new rules establishing Coastal Management Areas (CMAs), providing for recreational use, and regulation of public conduct.  The following sites would be designated as CMA’s:

II.     Discussion: The Texas Parks and Wildlife Department (TPWD) has recently acquired, or is in the process of acquiring, several tracts of land located within Brazoria and Matagorda counties. These tracts were either donated to TPWD or purchased using external funding sources. All are unimproved, but have high fish and game value and are ideally situated for recreational uses such as hunting, fishing, kayaking, beach use, and birding.  The lands are acquired with agreements that ensure protection of these critical habitats consistent with the requirements of the external funding source.  

Parks and Wildlife Code, Chapter 13, provides authority for the Texas Parks and Wildlife (TPW) Commission to create a classification system for wildlife management areas. Parks and Wildlife Code, Chapter 81, provides authority to manage fish and wildlife resources and recreational use of those, consistent with sound biological management practices. The new rules create a type of wildlife management area to be called a “Coastal Management Area” or CMA. CMAs will be monitored and managed by Coastal Fisheries Division for the conservation and preservation of coastal habitat and for the use and enjoyment of the public.

At the Work Session meeting on August 24, 2017, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the September 29, 2017, issue of the Texas Register (42 TexReg 5231).

III.   Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts new §§57.1010-57.1012 and §57.1015, concerning Coastal Management Areas, with changes as necessary to the proposed text as published in the September 29, 2017, issue of the Texas Register (42 TexReg 5231).”

Attachments – 1

  1. Exhibit A – Proposed Rule Text

Commission Agenda Item No. 3
Exhibit A

COASTAL MANAGEMENT AREA REGULATIONS
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes new §§57.1010 — 57.1012 and §57.1015, concerning Coastal Management Areas. The proposed new sections would constitute new Subchapter O in Chapter 57.

        The department has acquired or is in the process of acquiring several tracts of land along the Texas coast. The primary intent of the acquisitions is to conserve and protect open space coastal habitat for ecological benefit, but the department has also determined that these areas can provide public recreational enjoyment consistent with sound ecological management. Therefore, the department is creating a new class of wildlife management area to be called a Coastal Management Area (CMA). At least initially, the CMAs established under the proposed new rules will be limited to unsupervised primitive use activities; thus the proposed new rules create the first two CMAs, establish rules of conduct for public use of CMAs, and provide penalties for violations of the rules.

        Proposed new §57.1010, concerning Applicability, would stipulate that the rules of the subchapter apply to all CMAs regardless of the presence or absence of boundary markers. Because at least initially these CMAs will not have full-time, on-site staff, it is necessary to make clear that the designation of a tract of land as a CMA imposes the rules of the subchapter on the tract of land even if the physical boundaries of the tract are not indicated by signage or fencing.

        The proposed new section would also identify those tracts of lands designated as CMAs. Follets Island CMA is on a barrier island between Christmas Bay and the Gulf of Mexico in Brazoria County. The Matagorda Peninsula CMA is on a barrier island between East Matagorda Bay and the Gulf of Mexico in Matagorda County.

        Proposed new §57.1011, concerning Definitions, would set forth the meanings of specialized words and terms used in the subchapter in order to prevent confusion and promote compliance and enforcement.

        Proposed new paragraph (1) would define “airboat” as “a boat powered by a mechanical propulsion system that drives air, including, but not limited to a fan, propeller, or jet.” The definition is necessary because the proposed rules would prohibit the use of an airboat on a CMA.

        Proposed new paragraph (2) would define “arms and firearms” as “any device from which shot, a projectile, arrow, or bolt is fired by the force of an explosion, compressed air, gas, or mechanical device, including, but not limited to, rifle, shotgun, handgun, air rifle, pellet gun, longbow, cross bow, sling shot, blow gun, or dart gun.” The definition is necessary because the rules as proposed would prohibit the display or discharge of arms and firearms except by persons engaged in lawful hunting activities.

        Proposed new paragraph (3) would define “camping” as “the use of CMA lands for overnight accommodation, which includes sleeping, the storage of unattended personal possessions, or the use of a motor vehicle as a lodging.” The definition is necessary inasmuch as the rules as proposed would place limitations on the frequency and duration of camping activities on CMAs.

        Proposed new paragraph (4) would define “Coastal Management Area   (CMA)” as “a type of wildlife management area classified under the provisions of Parks and Wildlife Code, §13.001, for purposes of managing coastal habitats and resources.” The provision is necessary in order to provide for the promulgation of regulations governing CMAs.

        Proposed new paragraph (5) would provide a definition of “designated road” as “a constructed roadway indicated as being open to the public by either signs posted to that effect or by current maps and leaflets distributed at the area. Roads closed to the public may additionally be identified by on-site signing, barricades at entrances, or informational literature made available to the public. Designated roads do not include county or state roads or highways.”  The definition is necessary because the rules as proposed regulate the use of motor vehicles and off-road vehicles on CMAs.

        Proposed new paragraph (6) would define “motor vehicle” as “as defined by Transportation Code, Chapter 541.” The definition is necessary because the rules as proposed regulate the use of motor vehicles on CMAs.

        Proposed new paragraph (7) would define “off-road vehicle” as “an ATV, a utility vehicle, a vehicle that may not lawfully be operated on a public roadway, or any vehicle that is manufactured or adapted for off-road use.” The definition is necessary because the rules as proposed regulate the use of off-road vehicles on CMAs.

        Proposed new §57.1012, concerning Rules of Conduct, would prescribe specific provisions governing public behavior on CMAs.

        Proposed new §57.1012(a) would establish general provisions. Proposed new subsection (a)(1) would provide that the rules of conduct set forth in the proposed new subchapter would apply on all CMAs except by written permission of the department or executive director, which is necessary to provide the legal basis for enforcement of the rules. The department considers that it may be necessary in certain unknown circumstances to provide for exceptions to the rules; thus, the proposed new paragraph also would allow the department or the executive director to address such eventualities by providing exceptions to the rules in writing.

        Proposed new §57.1012(a)(2) would provide an exemption from the rules for persons authorized by the department to conduct research on a CMA and department employees in performance of their duties.

        Proposed new §57.1012(a)(3) would provide an offense for failing to obey regulations posted at the area or policies established by order of the executive director, failing to comply with instructions on permits or area leaflets, or refusing to follow directives given by departmental personnel in the discharge of official duties, all of which are necessary to ensure that the department is able to effectively manage visitation to CMAs.

        Proposed new §57.1012(b) would set forth provisions governing abandoned and unattended property, making it an offense for any person to abandon a vehicle or other personal property, leave a vehicle, boat, barge, or other property unattended in such a manner as to create a hazardous or unsafe condition, or leave property unattended for longer than 24 consecutive hours. The department considers that CMAs are intended to provide both environmental and recreational benefits to the citizens of the state and that the abandonment of personal property at CMAs is inimical to those interests; therefore, the proposed rules would prohibit such abandonment.

        Proposed new §57.1012(c) would prohibit the public consumption or display of an alcoholic beverage on CMAs. The department intends to allow the responsible consumption of alcohol on CMAs, provided there is no consumption or display of alcohol in a public place and such consumption does not disrupt the enjoyment of other park visitors.

        Proposed new §57.1012(d) would prescribe provisions governing animals and pets on CMAs. The department considers that dogs are human companions and a traditional form of retrieving game birds, but are also capable of being disruptive or dangerous; therefore, the proposed rules make it an offense for any person to possess dogs in camp that are not confined or leashed, or to allow vicious or dangerous dogs to create a disturbance or hazard.

        Proposed new §57.1012(e) would set forth provisions relating to arms and firearms. Because CMAs are intended to provide recreational opportunity to many different types of use and the areas will not be managed by on-site staff, the department has determined that it is prudent to stipulate that the display and discharge of arms and firearms be limited to the hunting and fishing activities set forth under the rules and Chapter 65, Subchapter H, which govern public hunting.

        Proposed new §57.1012(f) would prescribe measures regarding camping. The department considers that in order to provide for equitable use by the public as well as to prevent the use of department lands as permanent or semi-permanent dwelling places, it is necessary to establish limits on camping on CMAs. Therefore, the proposed rules would make it is an offense for any person to camp for more than 14 consecutive days on a CMA where overnight camping is allowed, or for more than 21 days in any 30-day period, or to establish a camp and leave it unattended for a period of longer than 24 hours.

        Proposed new §57.1012(g) would set forth restrictions on fires. The department considers that because CMAs are intended primarily to preserve coastal ecosystem habitats it is axiomatic that the collection or use of living vegetation as fuel is injurious to native vegetative communities and the ecological food webs that depend upon them and therefore should be prohibited. Similarly, unattended fires pose a danger to other CMA users. Therefore, the proposed rules would allow fires to be built, using either firewood brought by users or deadwood or driftwood acquired on-site; however, it would be an offense for any person to fell or cut any living vegetation for firewood or leave a fire unattended.

        Proposed new §57.1012(h) would prohibit the use of fireworks on CMAs. As previously mentioned in this preamble, the department intends for CMAs to provide recreational benefits for many different types of users, primarily in the form of enjoyment of open space and natural resources. The department has determined that fireworks are not consistent with any of these uses, or with the overarching management objectives of CMAs.

        Proposed new §57.1012(i) would provide for angling opportunity to be allowed under the provisions of Chapter 65, Subchapter N, which is the Statewide Recreational and Commercial Fishing Proclamation. The department believes that CMAs can provide significant high-quality angling opportunity to the public; therefore, the proposed rules would allow the angling opportunity provided for each location by the general fishing regulations of the department.

        Proposed new §57.1012(j) would proscribe graffiti and vandalism, making it an offense for any person to write on, scratch, or otherwise deface natural features, signs, buildings, or other structures. Considering that the department’s mission is to preserve and conserve the natural and cultural resources under its care, as well as to provide pleasant surroundings for the experience of CMA users, it is obvious that graffiti and vandalism should be prohibited on CMAs.

        Proposed new §57.1012(k) would establish provisions governing hunting on CMAs. CMAs will not have on-site permanent staff to conduct hunts and are intended for multiple uses, including hunting, to the extent consistent with public safety.  Accordingly, the department has determined that the hunting of migratory game birds (doves, ducks, geese, etc.) under the regulations of the department’s public hunting program (which require the purchase of an Annual Public Permit) can be provided. The department considers, however, that the long ranges of centerfire and rimfire firearms present a safety hazard and that allowing the unsupervised use of such firearms presents a danger to other users. Under both federal and state law, the only lawful means of hunting migratory game birds is by shotgun, which are firearms of limited range.

        Proposed new §57.1012(l) would prescribe provisions governing the use of motor vehicles and off-road vehicles. Since it is the department’s duty and intent to manage CMAs for conservation and responsible public recreational opportunity consistent with that goal, it is necessary to regulate the use of motor vehicles and off-road vehicles. Coastal habitats are remarkably delicate and subject to disruption by motor traffic. The department therefore proposes to make it an offense for any person to operate a motor vehicle anywhere other than designated roads, parking areas, or other areas designated as open for motor vehicle use, or to operate an off-road vehicle anywhere other than in an area designated as open for off-road vehicle use.

        Proposed new §57.1012(m) would prohibit the use of airboats on CMAs. Airboats are capable of disturbing sensitive marsh vegetation and wetlands communities; therefore, the department has determined that the recreational use of airboats on CMAs is antithetical to the purpose of CMAs.

        Proposed new §57.1012(n) would establish provisions concerning visitor impacts to natural and cultural resources. The proposed rule would make it an offense for any person to willfully mutilate, injure, destroy, pick, cut, remove, or introduce any plant life except by permit issued by the director; to intentionally or negligently take, remove, destroy, deface, tamper with, or disturb any rock, earth, soil, gem, mineral, fossil, or other geological deposit except by permit issued by the director; to take, remove, destroy, deface, tamper with, disturb, or otherwise adversely impact any prehistoric or historic resource, including but not limited to, buildings, structures, cultural features, rock art, or artifacts, except by written order of the director; or to harm, harass, disturb, trap, confine, catch, possess, remove, release, introduce, or feed any wildlife, or portions of wildlife, except as otherwise provided or authorized. The proposed rule is necessary, generally, to prevent injury or harm to natural and cultural resources that it is the department’s duty and goal to protect and conserve for the enjoyment of all visitors. The rule also would create an exception for incidental disturbance occurring as part of normal visitation activities.

        Proposed new §57.1012(o) would establish standards for treatment of wastewater, sewage, and garbage, making it an offense to deposit waste water, sewage, or effluent from sinks, toilets, or other plumbing fixtures directly on the ground or into the water; or to dispose of garbage except in a receptacle provided for that use or as may otherwise be specifically authorized by department personnel. The proposed provision is necessary to ensure that environmental degradation does not occur as a result of public visitation at CMAs.

        Proposed new §57.1015, concerning Penalties, would reference the statutory penalties for violations of regulations adopted under Parks and Wildlife Code, Chapter 81, which is intended for convenience.

2. Fiscal Note.

        Robin Riechers, Coastal Fisheries 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. Riechers has also 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 rule as proposed will be the preservation and conservation of coastal habitat and open space for the enjoyment of present and future generations.

                 There will be no adverse economic impacts to persons required to comply with the rules as proposed.

                (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, commission 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 because the rules govern public conduct on coastal management areas, there will be no adverse economic effects on small businesses, microbusinesses, or rural communities. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

        (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 rules.

        (F) The department has determined that the proposed rule is 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).

        (G) The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (H) In compliance with the requirements of Government Code, §2001.024, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; create new regulations that govern public conduct on CMAs; not expand, limit, or repeal an existing regulation; neither increase nor decrease the number of individuals subject to regulation;  and have an insignificant positive impact on the state’s economy. It is possible that the rules will result in increased visitation to coastal areas, with the attendant additive positive economic impacts associated generally with tourism; however, this impact is expected to be slight at both macro and micro levels.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Mark Lingo, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4668 (e-mail: mark.lingo@tpwd.texas.gov) or on the department’s website at www. tpwd.texas.gov.

5. Statutory Authority.

        The new rules are proposed under the authority of Parks and Wildlife Code, §81.006, which prohibits the take, attempted take, or possession of any wildlife or fish from a wildlife management area except in the manner and during the times permitted by the department under Chapter 81, Subchapter E, and under Chapter 81, Subchapter E, which provides the Parks and Wildlife Commission with authority to establish an open season on wildlife management areas and public hunting lands, authorizes the executive director to regulate numbers, means, methods, and conditions for taking wildlife resources on wildlife management areas and public hunting lands, and authorizes the commission to adopt rules governing recreational activities in wildlife management areas.

        The proposed new rules affect Parks and Wildlife Code, Chapter 81.

6. Rule Text.

        §58.1010. Applicability.

                 (a) This subchapter applies to all activities subject to department regulation on any tract of land designated by the department as a coastal management area (CMA), regardless of the presence or absence of boundary markers.

                 (b) The following lands are CMAs:

                         (1) Follets Island CMA in Brazoria County; and

                         (2) Matagorda Peninsula CMA in Matagorda County.

                 (c) The CMAs designated in this section are open to hunting, fishing, and other recreational use, subject to the provisions of this subchapter and any applicable provisions of the Parks and Wildlife Code.

        §57.1011. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                  (1) Airboat — A boat powered by a mechanical propulsion system that drives air, including, but not limited to a fan, propeller, or jet.

                 (2) Arms and firearms — Any device from which shot, a projectile, arrow, or bolt is fired by the force of an explosion, compressed air, gas, or mechanical device, including, but not limited to, rifle, shotgun, handgun, air rifle, pellet gun, longbow, cross bow, sling shot, blow gun, or dart gun.

                 (3) Camping — The use of CMA lands for overnight accommodation, which includes sleeping, the storage of unattended personal possessions, or the use of a motor vehicle as a lodging.

                 (4) Coastal Management Area (CMA)—A type of wildlife management area classified under the provisions of Parks and Wildlife Code, §13.001, for purposes of managing coastal habitats and resources. 

                 (5) Designated road — A constructed roadway indicated as being open to the public by either signs posted to that effect or by current maps and leaflets distributed at the area. Roads closed to the public may additionally be identified by on-site signing, barricades at entrances, or informational literature made available to the public. Designated roads do not include county or state roads or highways.

                 (6) Motor vehicle — As defined by Transportation Code, Chapter 541.

                 (7) Off-road vehicle — An ATV, a utility vehicle, a vehicle that may not lawfully be operated on a public roadway, or any vehicle that is manufactured or adapted for off-road use.

        §57.1012. Rules of Conduct.

                 (a) General.

                         (1) This section applies to all CMAs unless an exception for a specific area and time period is designated by the executive director or by written permission of the department.

                         (2) The provisions of this section do not apply to persons authorized by the department to conduct research on the area and department employees in performance of their duties.

                         (3) It is an offense for any person to fail to obey regulations posted at the area or policies established by order of the executive director, fail to comply with instructions on permits or area leaflets, or refuse to follow directives given by departmental personnel in the discharge of official duties.

                 (b) Abandoned and unattended property. It is an offense for any person to:

                         (1) abandon a vehicle or other personal property;

                         (2) leave a vehicle, boat, barge, or other property unattended in such a manner as to create a hazardous or unsafe condition; or

                         (3) leave property unattended for longer than 24 consecutive hours.

                 (c) Alcoholic beverages. It is an offense for any person to publicly consume or display an alcoholic beverage.

                 (d) Animals and pets. It is an offense for any person to:

                         (1) possess dogs in camp that are not confined or leashed; or

                         (2) allow vicious or dangerous dogs to create a disturbance or hazard.

                 (e) Arms and Firearms. It is an offense for any person to display or discharge an arm or firearm except:

                         (1) while hunting migratory game birds under the provisions of this subchapter; or

                         (2) while fishing by means of lawful archery equipment.

                 (f) Camping. It is an offense for any person to:

                         (1) camp for more than 14 consecutive days on a CMA where overnight camping is allowed, or for more than 21 days in any 30-day period; or

                         (2) establish a camp and leave it unattended for a period of longer than 24 hours.

                 (g) Fires. Fires are permitted and visitors may bring firewood or collect deadwood or driftwood for fires; however, it is unlawful for any person to:

                         (1) fell or cut any living vegetation for firewood; or

                         (2)  leave a fire unattended.

                 (h) Fireworks are prohibited.

                 (i) Fishing. Fishing is allowed under the provisions of Subchapter N of this chapter (relating to Statewide Recreational and Commercial Fishing Proclamation).

                 (j) Graffiti and Vandalism. It is an offense for any person to write on, scratch, or otherwise deface natural features, signs, buildings, or other structures.

                 (k) Hunting.

                         (1) No person may hunt any wildlife resource other than migratory game birds.

                         (2) The hunting, taking, and possession of migratory game birds shall be as provided by Chapter 65, Subchapter N of this title (relating to Migratory Game Bird Proclamation).

                         (3) It is an offense for any person to hunt migratory game birds without possessing a valid Annual Public Permit.

                 (l) Motor Vehicles and Off-Road Vehicles. It is an offense for any person to:

                         (1) operate a motor vehicle anywhere other than designated roads, parking areas, or other areas designated as open for motor vehicle use; or

                         (2)  operate an off-road vehicle anywhere other than in an area designated as open for off-road vehicle use.

                 (m) Airboats. The use of airboats is prohibited on CMAs.

                 (n) Natural and Cultural Resources. This paragraph does not apply to incidental or unintentional disturbance occurring as result of normal visitation activities.        

                         (1) Plant life. It is an offense for any person to willfully mutilate, injure, destroy, pick, cut, remove, or introduce any plant life except by permit issued by the director.

                         (2) Geological features. It is an offense for any person to intentionally or negligently take, remove, destroy, deface, tamper with, or disturb any rock, earth, soil, gem, mineral, fossil, or other geological deposit except by permit issued by the director.

                         (3) Cultural resources. It is an offense for any person to take, remove, destroy, deface, tamper with, disturb, or otherwise adversely impact any prehistoric or historic resource, including but not limited to, buildings, structures, cultural features, rock art, or artifacts, except by written order of the director.

                         (4) Wildlife. It is an offense for any person to:

                                  (A) harm, harass, disturb, trap, confine, catch, possess, or remove any wildlife, or portions of wildlife, except as provided in section (k) of this subsection or authorized in writing by the department;

                                  (B) release or introduce any species of animal life (including to waters within or bordering a CMA), except as authorized by the Parks and Wildlife Code and written order of the Executive Director or designee; or

                                  (C) feed or offer food to any wildlife, or to leave food unsecured in a manner that makes the food available to wildlife, unless specifically authorized by the department.

                 (o) Wastewater, Sewage, and Garbage. It is an offense for any person to:

                         (1) deposit waste water, sewage, or effluent from sinks, toilets, or other plumbing fixtures directly on the ground or into the water; or

                         (2) dispose of garbage except in a receptacle provided for that use or as may otherwise be specifically authorized by department personnel.

                 §57.1015. Penalties. The penalties for violation of this subchapter are prescribed by Parks and Wildlife Code, §81.007.

        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

(Comment on this proposal)