Work Session

Tuesday, May 21, 2019
09:00 a.m.

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

Ralph H. Duggins, Commission Chair
Carter Smith, Executive Director

Approval of the Previous Minutes from the Commission Work Session held March 19, 2019

    Land and Water Plan

  1. Update on the Texas Parks and Wildlife Department’s Progress in Implementing the Texas Parks and Wildlife Department Land and Water Resources Conservation and Recreation Plan – Carter Smith
    • Internal Affairs Update
    • Staff Recognition
    • Texas Abandoned Crab Trap Removal Program Update
    • Women Who Wander Outdoor Retreat
    • Environmental Impacts
  2. Legislative Update – Request Permission to Publish Proposed Rules Needed to Implement Legislation Passed During the 86th Texas Legislature – Carter Smith, Bob Sweeney
  3. Financial

  4. Financial Overview – Mike Jensen
  5. Internal Audit Update – Cindy Hancock
  6. Natural Resources

  7. Public Lands Proclamation – Recommended Adoption of Proposed Changes – Justin Dreibelbis (Action Item No. 2)
  8. Public Hunting Program – Establishment of an Open Season on Public Hunting Lands and Approval of Public Hunting Activities in State Parks – Justin Dreibelbis (Action Item No. 3)
  9. Disease Detection and Response Rules – Containment Zone Boundaries – Recommended Adoption of Proposed Changes – Mitch Lockwood (Action Item No. 4)
  10. Commercial Nongame Permits and Miscellaneous Wildlife Division Permits – Refusal of Permit Issuance or Permit Renewal and Review of Agency Decision – Request Permission to Publish Proposed Changes in the Texas Register – Meredith Longoria
  11. BRIEFING – Deer Breeder Regulations – Additional Testing Option(s) for Breeders to Regain Movement Qualified Status – Mitch Lockwood
  12. State Parks

  13. Texas Statewide Recreational Trails Grants Funding – Recommended Approval of Trail Construction, Renovation, and Acquisition Projects – Trey Cooksey (Action Item No. 5)
  14. Local Parks and Outreach Grants Scoring Rules – Request Permission to Publish Proposed Rules in the Texas Register– Dana Lagarde, Dan Reece, Cappy Smith, Carly Blankenship
  15. Land Conservation

  16. Acquisition of Land – Aransas County – Approximately 0.33 Acre at Goose Island State Park – Trey Vick (Action Item No. 6)
  17. Granting of Pipeline Easement – Parker County – Approximately 0.1 Acre at the Lake Mineral Wells State Park Trailway – Trey Vick (Action Item No. 7)
  18. Disposition of Land – Montgomery County – Approximately 6 Acres at Lake Houston Wilderness Park – Ted Hollingsworth (Action Item No. 8)
  19. Acceptance of Donation of Land – Aransas County – Approximately 25 Acres at Goose Island State Park – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 9)
  20. Acquisition of Land – Marion County – Approximately 110 Acres at the Caddo Lake Wildlife Management Area – Stan David (Work Session and Executive Session) (Action Item No. 10)
  21. Acquisition of Land – Navarro and Freestone Counties – Approximately 286.5 Acres at the Richland Creek Wildlife Management Area – Stan David (Work Session and Executive Session) (Action Item No. 11)
  22. Executive Session

  23. Litigation Update – Bob Sweeney (Executive Session Only)
    • Oysters
    • Chronic Wasting Disease
  24. Public Utility Commission Litigation – Transmission Line in Brazoria County – Bob Sweeney, Todd George (Executive Session Only)

Work Session Item No. 1
Presenter: Carter Smith

Work Session
Update on the Texas Parks and Wildlife Department's Progress
in Implementing the Texas Parks and Wildlife Department Land and
Water Resources Conservation and Recreation Plan
May 21, 2019

I.      Executive Summary: Executive Director Carter Smith will briefly update the Texas Parks and Wildlife Commission (Commission) on the status of Texas Parks and Wildlife Department’s (TPWD) efforts to implement the Land and Water Resources Conservation and Recreation Plan (Plan).

II.     Discussion: In 2001, the 77th Texas Legislature directed that TPWD develop a Land and Water Resources Conservation and Recreation Plan (Texas Parks and Wildlife Code section 11.104). In 2002, 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 website. 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
Bob Sweeney

Work Session
Legislative Update - Request Permission to Publish Proposed Rules
Needed to Implement Legislation Passed During the 86th Texas Legislature
May 21, 2019

I.      Executive Summary: Executive Director Carter Smith will present an update regarding the 86th Texas Legislature.

II.     Discussion: Executive Director Carter Smith will update the Texas Parks and Wildlife Commission on the deliberations of the Conference Committee on Appropriations and other major legislative issues and initiatives impacting Texas Parks and Wildlife Department. In addition, permission will be requested to publish proposed rules in the Texas Register that may be required to implement legislation enacted by the 86th Texas Legislature.


Work Session Item No. 3
Presenter: Mike Jensen

Work Session
Financial Overview
May 21, 2019

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

II.     Discussion: The staff will update the Texas Parks and Wildlife Commission on state park, boat registration/titling, and license fee revenues collected by TPWD for Fiscal Year (FY) 2019 and will summarize recent budget adjustments for FY 2019.


Work Session Item No. 4
Presenter: Cindy Hancock

Work Session
Internal Audit Update
May 21, 2019

I.      Executive Summary: The staff will present an update on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 2019 Internal Audit Plan and ongoing or completed external audits.

II.     Discussion: The staff will provide an update on the TPWD FY 2019 Internal Audit Plan as well as a briefing of any external audits that have been recently completed or are ongoing.


Work Session Item No. 8
Presenter: Meredith Longoria

Work Session
Commercial Nongame Permits and Miscellaneous Wildlife Division Permits
Refusal of Permit Issuance or Permit Renewal and Review of Agency Decision
Request Permission to Publish Proposed Changes in the Texas Register
May 21, 2019

I.      Executive Summary:  With this item, the staff seeks permission to publish proposed amendments and a new section governing the issuance and renewal of miscellaneous permits issued by the Wildlife Division (scientific research, educational display, zoological collection, wildlife rehabilitation, commercial nongame, scientific plant permit, commercial plant permit, and fur-bearing animal propagation license) in the Texas Register for public comment. The proposed amendments would authorize the department to refuse permit issuance or renewal on the basis of convictions for violations of various predicate offenses and provide for review of agency decisions to refuse permit issuance or renewal.

II.     Discussion:  The Texas Parks and Wildlife Commission (Commission) has promulgated various rules articulating the Commission policy that the decision to issue or renew a permit should take into account an applicant’s history of violations involving the permit in question, serious violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), and Lacey Act violations. The Commission’s position is that permits are a privilege and it is therefore appropriate to deny that privilege to persons who exhibit a demonstrable disregard for the laws governing the resources regulated by the Texas Parks and Wildlife Department in the public trust.

The proposed rules extend Commission policy with respect to permit issuance and renewal to encompass miscellaneous permits issued by the Wildlife Division.

Attachments – 2

  1. Exhibit A – Commercial Nongame and Fur-bearing Animal Rules
  2. Exhibit B – Miscellaneous Wildlife Division Permits Rules

Work Session Item No. 8
Exhibit A

COMMERCIAL NONGAME PERMITS
REFUSAL OF PERMIT ISSUANCE OR PERMIT RENEWAL
REVIEW OF AGENCY DECISION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §65.329, concerning Permit Application, §65.376, concerning Possession of Live Fur-bearing Animals.

        The proposed amendment to §65.329 would allow the department to refuse permit issuance or renewal  to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:  Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1; Parks and Wildlife Code, Chapter 67; a provision of the Parks and Wildlife Code other than Chapter 43, Subchapter C, E, L, R, or R-1, or Chapter 67 that is a Parks and Wildlife Code Class A or B misdemeanor, state jail felony, or felony;  Parks and Wildlife Code, §63.002; or the Lacey Act (16 U.S.C. §§3371-3378). In addition, the proposed amendment would allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit under the proposed new provision and provide for a review process for agency decisions to refuse permit issuance or renewal.

        The proposed amendment to §65.376 would allow the department to refuse permit issuance or renewal  to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:  Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1; Parks and Wildlife Code, Chapter 71; a provision of the Parks and Wildlife Code other than Chapter 43, Subchapter C, E, L, R, or R-1, or Chapter 71 that is a Parks and Wildlife Code Class A or B misdemeanor, state jail felony, or felony;  Parks and Wildlife Code, §63.002; or the Lacey Act (16 U.S.C. §§3371-3378). In addition, the proposed amendment would allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit under the proposed new provision and provide for a review process for agency decisions to refuse permit issuance or renewal.

        The department has determined that the decision to issue a permit to hold protected live wildlife or to collect and possess wildlife for commercial purposes should take into account an applicant’s history of violations involving the capture and possession of live animals, major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), and Lacey Act violations. The department reasons that it is appropriate to deny the privilege of taking or allowing the take of wildlife resources to persons who exhibit a demonstrable disregard for the regulations governing wildlife. Similarly, it is appropriate to deny the privilege of holding wildlife to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

        The Lacey Act (16 U.S.C. §§3371-3378) is a federal law that, among other things, prohibits interstate trade in or movement of wildlife, fish, or plants taken, possessed, transported or sold in violation of state law.  Lacey Act prosecutions are normally conducted by the United States Department of Justice in federal courts. Although a Lacey Act conviction or civil penalty is often predicated on a violation of state law, the federal government need only prove that a state law was violated; there is no requirement for there to be a record of conviction in a state jurisdiction. Rather than expending resources and time conducting concurrent state and federal prosecutions, the department believes that it is reasonable to use a Lacey Act conviction or civil penalty as the basis for refusing to issue or renew a permit. Because the elements of the underlying state criminal offense must be proven to establish a conviction or assessment of a civil penalty for a Lacey Act violation, the department reasons that such conviction or assessment constitutes legal proof that a violation of state law occurred and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.

        The denial of permit issuance or renewal as a result of an adjudicative status listed in the proposed amendment would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to refuse permit issuance based on adjudicative status include, but are not limited to:  the number of final convictions or administrative violations; the seriousness of the conduct on which the final conviction or administrative violation is based; the existence, number and seriousness of offenses or administrative violations other than offenses or violations that resulted in a final conviction ; the length of time between the most recent final conviction or administrative violation and the application for enrollment or renewal; whether the final conviction, administrative violation, or other offenses or violations was the result of negligence or intentional conduct; whether the final conviction or administrative violations resulted from the conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of information provided by the applicant; for renewal, whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigating factors.

        The proposed amendment would retain a provision, current subsection (c), allowing the department to refuse permit issuance or renewal to any person who is not in compliance with applicable recordkeeping or reporting requirements, but relocate in the body of the amendment.

        The proposed amendment also would provide for department review of a decision to refuse permit issuance or renewal. The amendment would require the department to notify an applicant not later than the 10th day following a decision to refuse permit issuance or denial and to set a time and date for conducting a review of an agency decision to refuse permit issuance or renewal within 10 days of receiving a request for a review. The amendment would stipulate that a review panel consist of three department managers with appropriate expertise in the activities conducted under the permit in question. The new provision is intended to help ensure that decisions affecting permit issuance and renewal are correct.

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 proposed amendments.

3. Public Benefit/Cost Note.

        Ms. 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 proposed rules will be a standardized method of addressing the refusal to issue or renew various wildlife permits.

        (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), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rules as proposed will not affect small businesses, micro-businesses, or rural communities, since the rules do not impose any direct economic impacts on the regulated community. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

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

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

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

        (G) The department has determined that because the rule as proposed does 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, §2001.0221, 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) create a new regulation (a standardized process for refusal of permit issuance or denial);

                 (6) not expand, limit, or repeal an existing regulation;

                 (7) not increase the number of individuals subject to regulation; and

                 (8) neither positively nor adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Meredith Longoria,  e-mail: 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 amendment is proposed under the authority of Parks and Wildlife Code, Chapter 67, 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 amendment affects Parks and Wildlife Code, Chapter 67.

6. Rule Text.

        §65.329. Permit Application.

                 (a) (No change.)

                 [(b) The department reserves the right to refuse permit issuance to any person finally convicted of any violation of Parks and Wildlife Code during the five-year period immediately prior to an application for a permit under this subchapter. This paragraph does not apply to convictions under Parks and Wildlife Code, Chapter 31.]

                 [(c) The department shall not issue a permit to any person who has not complied with the applicable requirements of §65.330 of this title (relating to Reporting Requirements).]

                 (b)[(d)] Permits shall be issued to named individuals only, resident or nonresident as applicable, and shall not be issued in the name of any firm, organization, or institution.

                (c) The department may refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:

                         (1) Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

                         (2) Parks and Wildlife Code, Chapter 67;

                         (3) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony;

                         (4) Parks and Wildlife Code, §63.002; or

                         (5) the Lacey Act (16 U.S.C. §§3371-3378).

                 (d) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for an offense listed in subsection (c) of this section.

                 (e) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this section from engaging in permitted activities.

                 (f) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.

                 (g) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).

                 (h) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.

                         (1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

                         (2) The department shall conduct the review within 30 days of receipt of the request required by subsection (g) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.

                         (3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.

                         (4) The decision of the review panel is final.

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

        Issued in Austin, Texas on

        The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 67, 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 amendment affects Parks and Wildlife Code, Chapter 67.

        §65.376. Possession of Live Fur-bearing Animals.

                 (a) – (f) (No change.)

                 (g) The department may refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:

                         (1) Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

                         (2) Parks and Wildlife Code, Chapter 71;

                         (3) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony;

                         (4) Parks and Wildlife Code, §63.002; or

                         (5) the Lacey Act (16 U.S.C. §§3371-3378).

                (h) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for an offense listed in subsection (g) of this section.

                (i) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this section from engaging in permitted activities.

                (j) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.

                (k) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).

                (h) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.

                         (1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

                        (2) The department shall conduct the review within 30 days of receipt of the request required by subsection (k) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.

                         (3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.

                         (4) The decision of the review panel is final.

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

        Issued in Austin, Texas on


Work Session Item No. 8
Exhibit B

MISCELLANEOUS WILDLIFE DIVISION PERMITS
REFUSAL OF PERMIT ISSUANCE OR PERMIT RENEWAL
REVIEW OF AGENCY DECISION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§69.4, concerning Renewal; 69.47, concerning Qualifications; and 69.303, concerning Application for Permit and Permit Issuance, and new §65.6, concerning Refusal of Issuance or Renewal of Permit; Review of Agency Decision. The proposed amendments would, collectively, eliminate provisions governing the issuance or renewal of various permits on the basis of convictions for previous criminal conduct involving activities regulated by the department or failure to comply with reporting and recordkeeping requirements and replace with them with a single standard governing such refusals, similar to current standards in effect for other permit programs administered by the department. Proposed new §69.6, concerning Refusal of Issuance or Renewal of Permit; Review of Agency Decision, would establish a similar regulation applicable to plant permits.

        The proposed amendment to §69.4 would alter the provisions of the section to replace “shall” with “may” with respect to the renewal of scientific plant permits and eliminate a provision allowing the department to refuse permit issuance to any person finally convicted of any violation of Parks and Wildlife Code during the five-year period immediately prior to an application for a commercial nongame permit. The changing of “may” to “shall” is necessary to emphasize that permit privileges are not automatic, but dependent upon a number of factors that the department evaluates prior to deciding whether to issue a permit or not. The proposed removal of paragraph (4) is necessary, as has been mentioned previously in this preamble, because the department is implementing a standardized set of provisions regarding refusal of permit issuance or renewal.

        Proposed new §69.6 would allow the department to refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:  Parks and Wildlife Code, Chapter 88; a provision other than Parks and Wildlife Code Chapter 88 that is a Parks and Wildlife Code Class A or B misdemeanor, state jail felony, or felony; or a violation of the Lacey Act (16 U.S.C. §§3371-3378). In addition, the proposed new section would allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit under the proposed new provision and provides for a review process for agency decisions to refuse permit issuance or renewal.

        The department has determined that the decision to issue or renew a permit should take into account an applicant’s history of violations involving plant permits, serious violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), and Lacey Act violations. The department reasons that it is appropriate to deny the privilege of collecting plant resources to persons who exhibit a demonstrable disregard for the regulations governing plant resources. Similarly, it is appropriate to deny permit privileges to a person who has exhibited demonstrable disregard for natural resource law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of natural resource law.

        The Lacey Act (16 U.S.C. §§3371-3378) is a federal law that, among other things, prohibits interstate trade in or movement of wildlife, fish, or plants taken, possessed, transported or sold in violation of state law.  Lacey Act prosecutions are normally conducted by the United States Department of Justice in federal courts. Although a Lacey Act conviction or civil penalty is often predicated on a violation of state law, the federal government need only prove that a state law was violated; there is no requirement for there to be a record of conviction in a state jurisdiction. Rather than expending resources and time conducting concurrent state and federal prosecutions, the department believes that it is reasonable to use a Lacey Act conviction or civil penalty as the basis for refusing to issue or renew a permit. Because the elements of the underlying state criminal offense must be proven to establish a conviction or assessment of a civil penalty for a Lacey Act violation, the department reasons that such conviction or assessment constitutes legal proof that a violation of state law occurred and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.

        The denial of a permit or permit renewal as a result of an adjudicative status listed in the proposed new rule would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to refuse permit issuance or renewal based on adjudicative status include, but are not limited to:  the number of final convictions or administrative violations; the seriousness of the conduct on which the final conviction or administrative violation is based; the existence, number and seriousness of offenses or administrative violations other than offenses or violations that resulted in a final conviction; the length of time between the most recent final conviction or administrative violation and the application for enrollment or renewal; whether the final conviction, administrative violation, or other offenses or violations was the result of negligence or intentional conduct; whether the final conviction or administrative violations resulted from the conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of information provided by the applicant; for renewal, whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigating factors.

        The proposed new rule also would include a provision allowing the department to refuse permit issuance or renewal to any person who is not in compliance with applicable recordkeeping or reporting requirements. The provision is necessary because the department believes that a person who is unable to comply with regulatory requirements that allow the department to monitor the performance of permit activities should not be entrusted with the privilege of permit issuance or renewal.

        The proposed new rule also would provide for department review of a decision to refuse permit issuance or renewal. The proposed new rule would require the department to notify an applicant not later than the 10th day following a decision to refuse permit issuance or denial and to set a time and date for conducting a review of an agency decision to refuse permit issuance or renewal within 10 days of receiving a request for a review. The proposed new rule would stipulate that a review panel consist of three department managers with appropriate expertise in the activities conducted under the permit in question. The new provision is intended to help ensure that decisions affecting permit issuance and renewal are correct.

        The proposed amendments to §69.47 and §69.303 would eliminate a provision in each section authorizing the department to refuse issuance or renewal of wildlife rehabilitation permits for a person convicted of any violation of state or federal law applicable to fish or wildlife. The department has determined that the current provision, in addition to allowing for permit issuance refusal for minor violations of fish and game law, is not as comprehensive as the template used for similar provisions in more recent rulemakings.

        The proposed amendments to §69.47 and §69.303 would allow the department to refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation for a violation of:  Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1; a provision of the Parks and Wildlife Code other than Chapter 43, Subchapter C, E, L, R, or R-1 that is a Parks and Wildlife Code Class A or B misdemeanor, state jail felony, or felony;  Parks and Wildlife Code, §63.002; or the Lacey Act (16 U.S.C. §§3371-3378). In addition, the proposed amendment would allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit and provide for a review process for agency decisions to refuse permit issuance or renewal.

        The department has determined that the decision to issue a permit to hold protected live wildlife should take into account an applicant’s history of violations involving the capture and possession of live animals, major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), and Lacey Act violations. The department reasons that it is appropriate to deny the privilege of possession of wildlife resources to persons who exhibit a demonstrable disregard for the regulations governing wildlife. Similarly, it is appropriate to deny the privilege of holding wildlife to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

        The Lacey Act (16 U.S.C. §§3371-3378) is a federal law that, among other things, prohibits interstate trade in or movement of wildlife, fish, or plants taken, possessed, transported or sold in violation of state law.  Lacey Act prosecutions are normally conducted by the United States Department of Justice in federal courts. Although a Lacey Act conviction or civil penalty is often predicated on a violation of state law, the federal government need only prove that a state law was violated; there is no requirement for there to be a record of conviction in a state jurisdiction. Rather than expending resources and time conducting concurrent state and federal prosecutions, the department believes that it is reasonable to use a Lacey Act conviction or civil penalty as the basis for refusing to issue or renew a permit. Because the elements of the underlying state criminal offense must be proven to establish a conviction or assessment of a civil penalty for a Lacey Act violation, the department reasons that such conviction or assessment constitutes legal proof that a violation of state law occurred and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.

        The denial of permit issuance or renewal as a result of an adjudicative status listed in the proposed amendment would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to refuse permit issuance based on adjudicative status include, but are not limited to:  the number of final convictions or administrative violations; the seriousness of the conduct on which the final conviction or administrative violation is based; the existence, number and seriousness of offenses or administrative violations other than offenses or violations that resulted in a final conviction ; the length of time between the most recent final conviction or administrative violation and the application for enrollment or renewal; whether the final conviction, administrative violation, or other offenses or violations was the result of negligence or intentional conduct; whether the final conviction or administrative violations resulted from the conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of information provided by the applicant; for renewal, whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigating factors.

        The proposed amendment also would include a provision allowing the department to refuse permit issuance or renewal to any person who is not in compliance with applicable recordkeeping or reporting requirements. The provision is necessary because the department believes that a person who is unable to comply with regulatory requirements that allow the department to monitor the performance of permit activities should not be entrusted with the privilege of holding a permit, depending on the circumstances.

        Additionally, the proposed amendment rule would provide for department review of a decision to refuse permit issuance or renewal. The proposed new rule would require the department to notify an applicant not later than the 10th day following a decision to refuse permit issuance or denial and to set a time and date for conducting a review of an agency decision to refuse permit issuance or renewal within 10 days of receiving a request for a review. The proposed amendment would stipulate that a review panel consist of three department managers with appropriate expertise in the activities conducted under the permit in question. The amendment is intended to help ensure that decisions affecting permit issuance and renewal are correct.

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 proposed rules.

3. Public Benefit/Cost Note.

        Ms. 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 proposed rules will be a standardized method of addressing the refusal to issue or renew various permits.

        (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), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rules as proposed will not affect small businesses, micro-businesses, or rural communities, since the rules do not impose any direct economic impacts on the regulated community. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

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

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

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

        (G) The department has determined that because the rules as proposed does 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, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules 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) create new regulations (implementing a standardized process for refusal of permit issuance or denial);

                 (6) not expand, limit, or repeal an existing regulation;

                 (7) not increase the number of individuals subject to regulation; and

                 (8) neither positively nor adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Meredith Longoria, via email at 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 and new section are proposed under the authority of Parks and Wildlife Code, Chapter 88, which requires the commission to adopt regulations, including regulations to provide for permit application, forms, fees, procedures, and hearing procedures.

        The proposed amendments and new section affect Parks and Wildlife Code, Chapter 88.

6. Rule Text. 

        §69.4. Renewal. The department may require information in addition to that required by paragraphs (1)-(4) of this section. Scientific plant permits may [shall] be renewed, provided:

                 (1) – (3) (No change.)

                 [(4) the permittee has not been convicted of a violation of Parks and Wildlife Code.]

        §69.6. Refusal of Issuance or Renewal of Permit; Review of Agency Decision.

                 (a) The department may refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:

                         (1) Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

                         (2) Parks and Wildlife Code, Chapter 67;

                         (3) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony;

                         (4) Parks and Wildlife Code, §63.002; or

                         (5) the Lacey Act (16 U.S.C. §§3371-3378).

                 (b) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for an offense listed in subsection (a) of this section.

                 (c) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subsection from engaging in permitted activities.

                 (d) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.

                 (e) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).

                 (f) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.

                         (1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

                         (2) The department shall conduct the review within 30 days of receipt of the request required by subsection (e) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.

                         (3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.

                         (4) The decision of the review panel is final.

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

        Issued in Austin, Texas, on

        The amendment is proposed under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation.

        The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter C.

        §69.47. Qualifications.

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

                 (c) The department may refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:

                         (1) Parks and Wildlife Code, Chapter 88;

                         (2) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony; or

                         (3) the Lacey Act (16 U.S.C. §§3371-3378).[The department reserves the right to refuse permit issuance to persons who have been finally convicted of any violation of state or federal law applicable to fish and wildlife.]

                 (d) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for an offense listed in subsection (c) of this section.

                 (e) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subsection from engaging in permitted activities.

                 (f) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.

                 (g) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).

                (h) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.

                         (1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

                         (2) The department shall conduct the review within 30 days of receipt of the request required by subsection (g) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.

                         (3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.

                         (4) The decision of the review panel is final.

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

        Issued in Austin, Texas, on

                 The amendment is proposed under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter C, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation.

        The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter C.

                 §69.303. Application for Permit and Permit Issuance.

                 (a) (No change.)

                 (b) The department may refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:

                         (1) Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

                         (2) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony;

                         (3) Parks and Wildlife Code, §63.002; or

                         (4) the Lacey Act (16 U.S.C. §§3371-3378). [The department reserves the right to refuse issuance of an initial permit or of any subsequent permits to persons who have been finally convicted of any violation of state or federal law applicable to fish and wildlife.]

                 (c) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for an offense listed in subsection (b) of this section.

                 (d) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this section from engaging in permitted activities.

                 (e) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.

                 (f) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).

                 (g) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.

                         (1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

                         (2) The department shall conduct the review within 30 days of receipt of the request required by subsection (f) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.

                         (3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.

                         (4) The decision of the review panel is final.

        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: Mitch Lockwood

Briefing
Deer Breeder Regulations
Additional Testing Option(s) for Breeders to Regain Movement Qualified Status
May 21, 2019

I.      Executive Summary: With this item, the staff will apprise the Texas Parks and Wildlife Commission (Commission) of potential additional regulatory avenues with respect to chronic wasting disease (CWD) testing options for deer breeder facilities that are currently prohibited from receiving or transferring deer

II.     Discussion: In 2016, the Commission responded to the detection of CWD in Texas deer by promulgating rules to implement a CWD surveillance strategy intended to reduce the likelihood of transmission of CWD from deer breeding facilities, among other sources. Those rules allow facility owners to substitute ante-mortem (live animal) test results for post-mortem test results to maintain or regain the ability to receive and transfer deer (“Movement Qualified,” or MQ, status) in the event that post-mortem sampling falls below the minimum established in the rules. The rules also establish minimum age requirements for deer to be eligible for testing, which is based on veterinary and epidemiological thresholds for efficacy. However, several facilities do not have a sufficient number of eligible-aged animals to test in order to obtain MQ status. In fact, several facilities will never be able to obtain MQ status because it is mathematically impossible for them to ever have enough age-eligible animals for CWD testing, which is problematic because it leaves no option other than euthanization of all animals in the subject facility’s possession or possessing the animals until natural mortality occurs for the entire herd.

After considering recommendations of the Texas Parks and Wildlife Department’s (TPWD) Breeder User Group and CWD Task Force, the Commission, in March 2019, adopted proposed amendments to allow permittees with an insufficient number of eligible-aged deer to potentially obtain MQ status by subjecting all age-eligible deer to two rounds of ante-mortem testing at an interval of at least 12 months, with all test results showing that CWD is “Not Detected.” The Commission also directed staff to reconvene the CWD Task Force to consider additional options for deer breeders in this situation to regain MQ status.

The staff subsequently received additional input from the CWD Task Force and will present additional options for obtaining MQ status for deer breeders with an insufficient number of age-eligible deer to obtain MQ status.


Work Session Item No. 11
Presenters: Dana Lagarde
Dan Reece
Cappy Smith
Carly Blankenship

Work Session
Local Parks and Outreach Grants Scoring Rules
Request Permission to Publish Proposed Rules in the Texas Register
May 21, 2019

I.     Executive Summary: With this item, the staff seeks permission to publish proposed new rules governing the scoring of applications for local parks and community outdoor outreach grants administered by the Texas Parks and Wildlife Department (TPWD) in the Texas Register.

II.    Discussion: Under Texas Parks and Wildlife Code chapter 24, TPWD is authorized to make grants of appropriated monies to political subdivisions or nonprofit corporations for recreation, conservation, or education programs, to acquire and develop public parks, and to engage underserved populations in outdoor recreation, conservation, and environmental education. Staff periodically review program rules and evaluation criteria for relevancy and effectiveness, taking great care to include the regulated community in the review process. The proposed new rules were developed following an extensive outreach effort to the regulated community, including multiple statewide surveys, public meetings, and online webinars.

Attachments – 1

  1. Exhibit A – Proposed Rules

Work Session Item No. 11
Exhibit A

LOCAL PARKS AND OUTREACH GRANTS SCORING RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes the repeal of §§61.81, 61.121, 61.131, and 61.133-61.139, an amendment to §61.132, and new §§61.133-61.139, concerning Guidelines for Administration of Texas Local Parks, Recreation, and Open Space Fund Program.

        The proposed repeals, amendments, and new sections are a result of the department’s continual outreach and communication efforts with the regulated community. As part of that ongoing process the department has assessed the efficacy of the current rules and concluded that the current rules are problematic in several respects and can be improved by streamlining them and focusing more closely on the articulation of the department’s administrative priorities and the goals of the regulated community. Accordingly, the proposed new rules emphasize the importance of quality over all other considerations in the preparation and evaluation of project proposals. Additionally, the department seeks to locate all rules governing local park and outreach grants in a single subchapter, as opposed to the current structure, which locates applications procedures in one subchapter, a policy statement in another subchapter, and an additional policy and rules governing evaluation of grants in yet another subchapter.  The proposed repeals, amendments, and new sections are intended to modernize references and designations, eliminate cumbersome and abstruse regulatory structures and language, make the rules easier to interpret, and in general replace the current rules with rules that are more intuitive, navigable, and helpful.

        The proposed repeal of §61.81, concerning Application Procedures, §61.121, concerning Policy, and §61.131, concerning Application Procedures, are necessary to relocate the contents of those sections to a single section within Subchapter E (which is being retitled as Local Parks and Outdoor Recreation Grants), with modifications intended to modernize and streamline those rules.

        The proposed amendment of §61.132, concerning Texas Local Park Grants Programs Manual, would incorporate the contents of current §61.81, modified to reflect the current title of the federal publication containing the procedural guide governing applications for federal funds through the department’s grants program, and §61.121, concerning Policy, modified to remove deadlines and administrative provisions that are no longer applicable. The proposed amendment also would rename the section as Grants Manual and Federal Procedural Guide and specify that the documents be made available on the department’s website.

        Proposed new §61.133, concerning General Provisions, would set forth provisions of universal applicability to the grant programs contained in the subchapter.

        Proposed new subsection (a) would set forth the department policy underscoring the administration of the local park and outreach grant program, which is to provide high-quality outdoor and indoor recreational opportunities for Texas, consistent with Parks and Wildlife Code, Chapter 24, and the priorities and policies articulated in the department’s  Land and Water Resources Conservation and Recreation Plan and the Texas Outdoor Recreation Plan (required for federal funding), as applicable. The department believes that because the financial resources made available by the legislature in any given biennium are almost always insufficient to fund every request for assistance, it is therefore important to ensure that the greatest number of projects with achievable maximal beneficial outcomes be approved.

        Proposed new subsection (b) would stipulate that the department will not accept or evaluate a project proposal that is not submitted to the department via the department’s on-line application process. The department has utilized technology to create a single portal for submission of project proposals. Requiring all proposals to be submitted via the electronic portal increases administrative efficiencies for both the department and the regulated community.

        Proposed new subsection (c) would provide that the department will not score an application that is not in substantive compliance with the requirements of the subchapter, as determined by the department. The provision is necessary because the department believes it is important to maximize administrative efficiency by not investing time and effort on project proposals that are incomplete and therefore unable to be evaluated thoroughly.

        Proposed new subsection (d) would provide that applications will be scored only if the applicant is in compliance with the conditions of existing or previous grant agreements. Sometimes it is the case that an application for a grant is received from an entity that has not fulfilled the obligations of a previous grant or has otherwise not complied with applicable administrative provisions. The department reasons that a project proposal from such an entity should not be processed until all deficiencies are resolved.

        Proposed new subsection (e) would establish the methodology for scoring applications, specifying that the department will evaluate proposed projects on a qualitative basis, awarding points within the specified range from 0 (no points) to the maximum allowable for each criterion, according to the department’s determination of how the applicant’s treatment of any given component places along a continuum from poor to excellent. The provision would also establish that the department will not automatically award points for cursory, mechanical attempts to amass as many criteria as possible solely in an effort to increase the numerical score of a project. As previously discussed, the department believes that the quality of projects is more important than the number of projects or simply the number of persons affected by a project. The goal of the local park and outreach grants programs is to create meaningful, lifelong participatory relationships between the public and the mission of the agency, in the process enriching and informing the lives of citizens and communities. The department has noticed that the primary motivation of some applicants is simply to receive funds, as opposed to a bona fide intent to work cooperatively with the department to advance shared goals and priorities. In such instances, the application is merely a pretense, an exercise engaged in to obtain funds, irrespective of the goals of the program. The department seeks to encourage all entities with an authentic and genuine desire for service but will not fund project applications that in the view of the department are not in good faith. To that end, the scoring system will not simply award points for “checking a box” but for earnest attempts to provide quality recreational opportunity.

        Proposed subsection (f) would stipulate that applications be scored according to the provisions of the subchapter and ranked in relation to the scores of other proposals. Because the nature of the availability of funds is such that not every eligible project can be funded, the department uses a competitive system to determine the ultimate funding of approved projects; therefore, projects are scored and then ranked in comparison to each other, with funding going to the highest scoring projects first, and then in descending order until all available funds are expended.

        Proposed new subsection (g) would require funded projects to be pursued by the sponsor in accordance with the timelines established by the department for each project, unless the department determines that circumstances beyond the sponsor’s control warrant timeline extension, and would stipulate that failure to meet timelines or timeline extensions constitutes grounds for the department to initiate cancellation of the affected project. The department has determined that is necessary to explicitly state in rule that sponsors are expected to abide by the conditions of grant agreements, which establish timelines for the accomplishment of grant-funded activities, and that such agreements are subject to cancellation in the event that a sponsor is clearly unable to discharge its obligations under a grant agreement.

        Proposed new subsection (h) would provide that grant awards are dependent on the availability of grant funds. It is intuitively obvious that the department cannot fund projects if there are insufficient funds to do so, but in any case the department believes it is necessary to state the fact by rule.

        Proposed new §61.134, concerning Local Park Grants, would replace current §§61.133, concerning Grants for Outdoor Recreation Programs; 61.134, concerning Grants for Indoor Recreation Programs; 61.138, concerning Outdoor Urban Park Grants Program; and 61.139, concerning Indoor Urban Park Grants Program. The current rules governing these grant programs are complex and confusing, consisting of multi-levelled parameters that distract from the central ideas driving the application and review process. Additionally, the department has determined that the distinctions nominally represented by the rules are misleading, because each rule imposes essentially the same scoring criteria and all four grant programs are really just one grant program with four subcategories of application. The department believes that the scoring criteria should simply address the fundamental components of a project proposal and stress the importance of the qualitative analysis used by the department to evaluate and score project applications, while the department’s grants manual can be used to develop a more granular and nuanced understanding of both how to prepare and evaluate a given grant application.

        Proposed new subsection (a) would establish the purpose for which the section exists, which is to provide a mechanism for determining the suitability of project proposals for funding the acquisition of land and the development of public indoor and outdoor recreation facilities. The new subsection is necessary to clearly define the ambit of the proposed new section.

        Proposed new subsection (b) would set forth the scoring criteria used by the department to evaluate local park grant project proposals, describing each component criterion and establishing a potential point award range for each. In general, the point range for each category reflects the relative importance of that category within the overall scheme of criteria.

                 Proposed new subsection (b)(1) would award up to 10 points for submission of a completed application by the deadline. An application containing all pertinent required components places less demand on department staff because the application can be scored without time-consuming requests for additional information, verifications, and other such administrative follow up activities, which also impacts the ability of the department to deal with other applications in a thorough manner. The department recognizes that some applications, although administratively complete, lack minor details. Therefore, the criterion establishes a range of possible points in order to encourage thoroughness.

        Proposed new subsection (b)(2) would award up to 10 points for the category of Community Need, subdivided into an automatic five-point award for a current Recreation, and Open Space Comprehensive Plan or other comparable plan on file with the department and 0-5 point award for the quality of the application’s description of how the applicant determined the need for the project, the influence of that need on the site design, a description of the public input process and the applicant’s decisions in response to public comment, and a description of other needs assessments impacting the applicant’s decisions. The department has determined that because the recreation needs of Texas communities are broad, nuanced, and diverse, the mission of the department and the program is best served by encouraging communities to engage in long-term parks planning by inventorying existing resources and using public input to evaluate recreation needs. Parks and Wildlife Code, §24.007 and §24.057 conditions the award of grants on the existence of present or future needs and a statement from a planning authority that a proposed project is consistent with local needs; therefore, the needs assessment component is intended to specifically identify an applicant’s needs, verify the  processes used to engage the public in arriving at that determination, and illustrate how the proposed project addresses the need. The point range is intended to allow the department to award points based on the thoroughness of the applicant’s efforts.

        Proposed new subsection (b)(3) would award 0-5 points for the applicant’s ability to identify specific, well-defined goals and objectives that both clearly explain the local priorities to be addressed by the proposed project and illustrate how the proposed project, if funded, will support the department’s likely Land and Water Resources Conservation and Recreation Plan, Texas Outdoor Recreation Plan, and Local Park Grant program objectives, as applicable. The department’s Land and Water Resources Conservation and Recreation Plan is the master planning document that guides all agency decisions regarding the best and highest use of state resources to provide land and water conservation and related recreational activities. The department believes that grant applications consistent with the department’s mission and goals should receive preference. Similarly, the Texas Outdoor Recreation Plan is a state planning document required by federal law as a condition of receiving federal funds that are passed through the department for local park and recreation projects. It is therefore necessary for grant applications to be consistent with the priorities established in that document. Additionally, preference will be given to proposed projects that would provide direct recreational opportunity for citizens, which the department believes is the most efficacious use of grant funds.

        Proposed new subsection (b)(4) would award 0-10 points for the quality of the applicant’s timeline and budget for a proposed project. It is intuitively obvious that a thoughtful, realistic budget that correlates to a timeline for project completion is a good predictor of the likelihood of project success, as well as an indicator that a prospective project will not place excessive demands on administrative personnel. Budgets that reflect realistic understanding and expectations (based on the department’s experience with similar projects) are far more likely to succeed and far less likely to require time-consuming amendments. The department understands that expenditures during project development and implementation are likely to diverge from application budgets; however, the more realistic a budget is, the better able the department is to evaluate the true competitiveness of the prospective project and the more likely it is that the project, if funded, will succeed.

        Proposed new subsection (b)(5) would allow 0-10 points for the quality and thoroughness of a proposed project’s site design. The department believes that a well-considered site design is crucial for assisting the department in understanding a project and a good indicator of the overall quality and effectiveness of the project. Vague plans that prevent the department from being able to envision the unity of a project’s physical manifestation make it difficult to assess the fullness of the project’s impact. Therefore, the proposed new rule would reward applications that provide a thorough accounting of the basic physical layout of the proposed project, identify significant natural or cultural features, and provide evidence of emphasis on recreation. The proposed new provision also would award up to five points for the extent to which the project maximizes the use of funds, determined by dividing the direct acquisition, recreational, and conservation costs by the total construction costs and multiplying the result by five. This formula was derived as a result of consultations with the regulated community in an effort to determine an appropriate method for creating a useful coefficient for determining funds maximization.

        Proposed new subsection (b)(6) would award 0-5 points for organizational capacity. Organizational capacity is the applicant’s ability to responsibly implement, manage, and maintain the project once funding has been acquired. The department believes it is irresponsible to fund projects that are beyond the applicant’s ability to bring to fruition and/or operate moving forward. Therefore, the proposed new provision would require applicants to prove or offer reasonable assurance that the necessary resources for project completion and continuing success are in place.

        Proposed new subsection (b)(7) would award 0-5 points for past performance. The department believes that an applicant with a history of competent performance on previous grants represents a lower risk of failure than an applicant with a history of problematic performance. Therefore, up to five points could be awarded to an applicant that either is in full compliance with previous grant agreements or can offer reasonable assurances that existing deficiencies with prior grant performance will be remedied. First time applicants would receive an automatic award of five points, since there is no history of unresolved compliance issues.  Applicants with existing compliance issues would be awarded up to five points in accordance with their past performance.  The department wishes to encourage participation by all legitimate entities and believes that a five-point award for first-time participants will provide an incentive for potential applicants for grants. Similarly, the department believes that an entity with a history of unresolved compliance issues should be given an incentive to develop and implement appropriate corrective measures.

        Proposed new subsection (b)(8) would award from 0 to 5 points for projects that improve the geographic distribution of recreational opportunities within the applicant’s service area. Five points would automatically be awarded to a project providing the first public park in a jurisdiction and up to three points could be awarded to projects that fill a critical recreation need. Up to two points could be awarded for projects that are safely accessible to the public via multiple modes of transportation. There are still many communities in Texas without public park or recreation facilities. The department believes that such communities deserve preference in scoring. Similarly, there are many communities in Texas with identified gaps in recreational opportunity that once identified should receive points. Finally, the department believes that accessibility is a key component of park and recreational opportunity enjoyment; therefore, projects that show accessibility by multiple means of transportation are more desirable than projects that are difficult for the public to access.

        Proposed new subsection (b)(9) would award 0-5 points to projects that improve access to parks and outreach facilities for under-served populations ( defined by Parks and Wildlife Code, §24.002, as “ any group of people that is low income, inner city, or rural as determined by the last census, or minority, physically or mentally challenged, youth at risk, youth, or female). Parks and Wildlife Code, §24.005 requires the department to make grants of money to “a political subdivision or nonprofit corporation for recreation, conservation, or education programs for underserved populations to encourage and implement increased access to and use of parks, recreational areas, cultural resource sites or areas, and open space areas by underserved populations.” Local parks are often the key or gateway to a love of outdoor recreation and the department believes it is important to ensure that all segments of the population are provided with the opportunity to experience first-hand the valuable benefits of outdoor recreation. The point total would be determined by multiplying the sum of percentage of population qualifying as low-income and percentage of population qualifying as minority by 2.5. This formula was derived as a result of consultations with the regulated community in an effort to determine an appropriate method for creating a useful coefficient for determining a project’s involvement of under-served populations.

        Proposed new subsection (b)(10) would award 0-5 points for projects that provide opportunities for physically/mentally challenged citizens that exceed federal and state required accessibility standards. As discussed with respect to underserved populations, the department believes that the benefits of outdoor recreation should be available to all citizens, and that projects eliminating barriers to participation by citizens with physical and mental challenges should receive preference. Therefore, the proposed new provision would allow up to five points to be awarded to projects based on the extent to which meaningful accessibility to such citizens is provided.

        Proposed new subsection (b)(11) would award 0-10 points to projects that protect or conserve sensitive ecosystems and natural and/or cultural resources. The department’s mission is to manage and conserve natural and cultural resources; thus, it is axiomatic that proposed projects containing components to protect or restore sensitive ecosystems or incorporate elements that cultivate support for and awareness of natural and/or cultural resources should receive preference. The department also intends for the criterion to encourage local communities to identify and include sensitive ecosystems and/or cultural resources in their application and to incorporate them if possible into the site design of prospective projects.

        Proposed new subsection (b)(12) would award 0-10 points for sustainable park design. The department believes that sustainability is an important concept, as it improves efficiency, lowers costs, and reduces negative impacts to the environment. Therefore, the proposed provision would allow the award points based on the extent to which a prospective project incorporates sustainable design and operation features.

        Proposed new subsection (b)(13) would award 0-5 points for the quality of and degree to which a proposed project involves coordination with subject matter experts. The department concludes that successful projects contemplate the need for subject matter experts where necessary and effective, such as permitting processes, consultants, professional services, and associated factors that impact the development and operation of a project. Proposed projects that reflect engagement with this criterion are likely to require less administrative assistance from the department and are therefore desirable.

        Proposed new subsection (b)(14) would award 0-5 points for the extent to which the proposed project involves the contribution of resources from sources other than the applicant to serve as all or part of the applicant’s matching share of funds. The criterion is subdivided into two subcategories, either documented guarantees of support from external entities (up to three points) or evidence of community engagement and mobilization greater than the required match (up to two points). The department does not wish to impede communities from obtaining matching funds in any way possible. Therefore, the proposed provision would allow the department to recognize non-traditional or unorthodox methods of raising matching funds in addition to the traditional methods.

        Proposed new §61.135, concerning Grants for Community Outreach Outdoor Programs (CO-OP), would set forth the scoring criteria for CO-OP grants.

        Proposed new subsection (a) would establish the purpose for which the section exists, which is to provide a mechanism for determining the suitability of project proposals to award funding to tax-exempt organizations for programming that engages under-served populations in outdoor recreation, conservation, and environmental education activities that support the department’s mission. The department believes that because the financial resources made available by the legislature in any given biennium are almost always insufficient to fund every request for assistance, it is therefore important to ensure that the greatest number of projects with achievable maximal beneficial outcomes be approved; therefore, there must be some objective method of comparing and ranking applications for grants in order to determine those projects most deserving of funding.

        Proposed new subsection (b) would set forth the scoring criteria used by the department to evaluate CO-OP grant project proposals, describing each component criterion and establishing a potential point award range for each. In general, the point range for each category reflects the relative importance of that category within the overall scheme of criteria.

        Proposed new subsection (b)(1) would allow the department to award 0-15 points on the basis of the extent to which a project proposal aligns with the mission priorities of the CO-OP program, subdivided into a range of 0-8 points awarded for the department’s assessment of the proposal’s quality and efficacy relative to program priorities, and a 0-7 point award for the department’s assessment of the quality of the project’s involvement of participants in sustained direct connections to the department, including department sites, programs, and personnel. Based on input from the regulated community and staff review, the department has determined that the current scoring criteria are a measure of the quantitative relationships with department personnel, programs and sites for each application. The proposed new criteria would place greater weight on the qualitative aspect of these relationships, one dimension of which is sustained contact with department programs, sites, and personnel. As a state agency designated for the conservation and management of outdoor resources, the department considers that it is uniquely positioned to provide optimal benefits to the regulated community and the constituents for whom they advocate.

        Proposed new subsection (b)(2) would allow the award of 0-30 points to projects that improve access to parks and outreach facilities for under-served populations (defined by Parks and Wildlife Code, §24.002, as “ any group of people that is low income, inner city, or rural as determined by the last census, or minority, physically or mentally challenged, youth at risk, youth, or female). Parks and Wildlife Code, §24.005, requires the department to make grants of money to “a political subdivision or nonprofit corporation for recreation, conservation, or education programs for underserved populations to encourage and implement increased access to and use of parks, recreational areas, cultural resource sites or areas, and open space areas by underserved populations.” Local parks are often the key or gateway to a love of outdoor recreation and the department believes it is important to ensure that all segments of the population are provided with the opportunity to experience first-hand the valuable benefits of outdoor recreation. The proposed criterion would be subdivided into subcategories for award of points. The first would be the extent to which the proposed project includes target populations (0-6 points per underserved segment of the population served, up to a maximum of 24 points). The department believes that the majority of the points potential for this criterion should be awarded for the diversity of underserved population served by the proposed project. For projects that have a clearly articulated plan of action that convinces the department that the project will reach the target demographic, there would be a 0-3 point award, and evidence of an effective tracking and reporting function to allow for assessment would also be awarded 0-3 points. The department believes that it is important that a proposed project be realistic and measurable.

        Proposed new subsection (b)(3) would award of 0-30 points based on the extent to which the department, based on the application, is able to gauge the probable impact of proposed project. The point awards for this criterion would be subdivided into four subcategories: a project narrative (0-5 points), the potential for the development of life-long behaviors (0-5 points), the likelihood of professional development (0-5 points), activities that utilize a hands-on, active engagement approach to skill development (0-5 points), and the quality of tangible environmental benefits resulting from the project (0-10 points). The department, based on many years of experience managing grant programs, believes that a project narrative illustrating goals that are feasible, fully developed, specific, measurable, attainable, and relevant is a predictor of likely success. The department also believes that grant programs with the potential to inculcate in participants lifelong behaviors that create environmentally responsible stewards of natural resources are very important, as those behaviors are key in developing future generations of environmentally responsible citizens. Similarly, the department wishes to encourage in participants a desire to make outdoor recreation a career path, which is beneficial to future generations for obvious reasons. The department also considers that direct, hands-on activities provide the most direct method for program participants to become engaged in subject matter, and finally, that the extent to which a project will result in tangible environmental benefits is worthy of preference.

        Proposed new subsection (b)(4) would award 0-20 points for the quality of the applicant’s timeline and budget for a proposed project. It is important that an application contain a thoughtful, realistic budget that correlates to a timeline for project completion. Budgets that reflect realistic understanding and expectations (based on the department’s experience with similar projects) are far more likely to succeed. The more realistic a budget is, the better able the department is to evaluate the true competitiveness of the prospective project and the more likely it is that the project, if funded, will succeed.

        Proposed new subsection (b)(5) would award 0-5 points for organizational capacity. Organizational capacity is the applicant’s ability to responsibly implement, manage, and maintain the project once funding has been acquired. The department believes it is irresponsible to fund projects that are beyond the applicant’s ability to bring to fruition and/or operate moving forward. Therefore, the proposed new provision would require applicants to prove or offer reasonable assurance that the necessary resources for project completion and continuing success are in place.

        Proposed new subsection (b)(6) would provide for a deduction of 0-20 points for past performance. The department believes that an applicant with a history of competent performance on previous grants represents a lower risk of failure than an applicant with a history of problematic performance. Similarly, the department believes that an entity with a history of unresolved compliance issues should be provided an incentive for developing and implementing appropriate corrective measures on previous grants.

        Proposed new §61.136, concerning Small Community Grant Program, would set forth the criteria for small community grants.

        Proposed new subsection (a) would establish the purpose for which the section exists, which is to provide a mechanism for determining the suitability of project proposals for funding the acquisition of land and the development of public outdoor recreation facilities by small communities.

        Proposed new subsection (b) would set forth the scoring criteria used by the department to evaluate project proposals.

        Proposed new subsection (b)(1) would award up to 10 points for submission of a completed application by the deadline. An application containing all pertinent required components places less demand on department staff because the application can be scored without time-consuming requests for additional information, verifications, and other such administrative follow up activities, which also impacts the ability of the department to deal with other applications in a thorough manner. The department recognizes that some applications, although administratively complete, lack minor details. Therefore, the criterion establishes a range of possible points in order to encourage thoroughness.

        Proposed new subsection (b)(2) would award 0-5 points for the extent to which the project proposal identifies specific, well-defined goals and objectives that both clearly explain the local priorities to be addressed by the proposed project and illustrate how the proposed project, if funded, will support the department’s Land and Water Resources Conservation and Recreation Plan, Texas Outdoor Recreation Plan, and Local Park Grant program objectives, as applicable.

        Proposed new subsection (b)(3) would allow the award of 0-10 points for the category of Community Need. The criterion would allow a 0-5 point award on for the quality of the application’s description of how the applicant determined the need for the project, the influence of that need on the site design, the public input process and the applicant’s decisions in response to public comment, and a description of other needs assessments impacting the applicant’s decisions. The department has determined that because the recreation needs of Texas communities are broad, nuanced, and diverse, the mission of the department and the program is best served by encouraging communities to engage in long-term parks planning by inventorying existing resources and using public input to evaluate recreation needs. Parks and Wildlife Code, §24.007 and §24.057, conditions the award of grants on the existence of present or future needs and a statement from a planning authority that a proposed project is consistent with local needs; therefore, the needs assessment component is intended to specifically identify an applicant’s needs, verify the  processes used to engage the public in arriving at that determination, and illustrate how the proposed project addresses the need. The point range is intended allow the department to award points based on the thoroughness of the applicant’s efforts.

        Proposed new subsection (b)(4) would award 0-10 points for the quality of the applicant’s timeline and budget for a proposed project. It is intuitively obvious that a thoughtful, realistic budget that correlates to a timeline for project completion is a good predictor of the likelihood of project success, as well as an indicator that a prospective project will not place excessive demands on administrative personnel. Budgets that reflect realistic understanding and expectations (based on the department’s experience with similar projects) are far more likely to succeed and far less likely to require time-consuming amendments. The department understands that expenditures during project development and implementation are likely to diverge from application budgets; however, the more realistic a budget is, the better able the department is to evaluate the true competitiveness of the prospective project and the more likely it is that the project, if funded, will succeed.

        Proposed new subsection (b)(5) would allow 0-10 points for the quality and thoroughness of a proposed project’s site design. The department believes that a well-considered site design is crucial for assisting the department in understanding a project and a good indicator of the overall quality and effectiveness of the project. Vague plans that prevent the department from being able to envision the unity of a project’s physical manifestation make it difficult to assess the fullness of the project’s impact. Therefore, the proposed new rule would reward applications that provide a thorough accounting of the basic physical layout of the proposed project, identify significant natural or cultural features, and provide evidence of emphasis on recreation. The proposed new provision also would award up to five points for the extent to which the project maximizes the use of funds, determined by dividing the direct acquisition, recreational, and conservation costs by the total construction costs and multiplying the result by five. This formula was derived as a result of consultations with the regulated community in an effort to determine an appropriate method for creating a useful coefficient for determining funds maximization.

        Proposed new subsection (b)(6) would award 0-5 points for organizational capacity. Organizational capacity is the applicant’s ability to responsibly implement, manage, and maintain the project once funding has been acquired. The department believes it is irresponsible to fund projects that are beyond the applicant’s ability to bring to fruition and/or operate moving forward. Therefore, the proposed new provision would require applicants to prove or offer reasonable assurance that the necessary resources for project completion and continuing success are in place.

        Proposed new subsection (b)(7) would award 0 to 5 points for projects that improve the geographic distribution of recreational opportunities the applicant’s service area. Five points would automatically be awarded to a project providing the first public park in a jurisdiction and up to three points could be awarded to projects that fill a critical recreation need. Up to two points could be awarded for projects that are safely accessible to the public via multiple modes of transportation. There are still many communities in Texas without public park or recreation facilities. The department believes that such communities deserve preference in scoring. Similarly, there are many communities in Texas with identified gaps in recreational opportunity that once identified should receive points. Finally, the department believes that accessibility is a key component of park and recreational opportunity enjoyment; therefore, projects that show accessibility by multiple means transportation are more desirable than projects that are difficult for the public to access.

        Proposed new subsection (b)(8) would award 0-5 points to projects that improve access to parks and outreach facilities for under-served populations ( defined by Parks and Wildlife Code, §24.002, as “ any group of people that is low income, inner city, or rural as determined by the last census, or minority, physically or mentally challenged, youth at risk, youth, or female). Parks and Wildlife Code, §24.005 requires the department to make grants of money to “a political subdivision or nonprofit corporation for recreation, conservation, or education programs for underserved populations to encourage and implement increased access to and use of parks, recreational areas, cultural resource sites or areas, and open space areas by underserved populations.” Local parks are often the key or gateway to a love of outdoor recreation and the department believes it is important to ensure that all segments of the population are provided with the opportunity to experience first-hand the valuable benefits of outdoor recreation. The point total would be determined by multiplying the sum of percentage of population qualifying as low-income and percentage of population qualifying as minority by 2.5. This formula was derived as a result of consultations with the regulated community in an effort to determine an appropriate method for creating a useful coefficient for determining a project’s involvement of under-served populations.

        Proposed new subsection (b)(9) would award 0-5 points for projects that provide opportunities for physically/mentally challenged citizens that exceed federal and state required accessibility standards. As discussed with respect to underserved populations, the department believes that the benefits of outdoor recreation should be available to all citizens, and that projects eliminating barriers to participation by citizens with physical and mental challenges should receive preference. Therefore, the proposed new provision would allow up to five points to be awarded to projects based on the extent to which meaningful accessibility to such citizens is provided.

        Proposed new subsection (b)(10) would award 0-10 points to projects that protect or conserve sensitive ecosystems and natural and/or cultural resources. The department’s mission is to manage and conserve natural and cultural resources; thus, it is axiomatic that proposed projects containing components to protect or restore sensitive ecosystems or incorporate elements that cultivate support for and awareness of natural and/or cultural resources should receive preference. The department also intends for the criterion to encourage local communities to identify and include sensitive ecosystems and/or cultural resources in their application and to incorporate them if possible into the site design of prospective projects.

        Proposed new subsection (b)(11) would award 0-10 points for sustainable park design. The department believes that sustainability is an important concept, as it improves efficiency, lowers costs, and reduces negative impacts to the environment. Therefore, the proposed provision would allow the award points based on the extent to which a prospective project incorporates sustainable design and operation features.

        Proposed new subsection (b)(12) would award 0-5 points for the quality of and degree to which a proposed project involves coordination with subject matter experts. The department concludes that successful projects contemplate the need for subject matter experts where necessary and effective, such as permitting processes, consultants, professional services, and associated factors that impact the development and operation of a project. Proposed projects that reflect engagement with this criterion are likely to require less administrative assistance from the department and are therefore desirable.

        Proposed new subsection (b)(13) would award 0-5 points for the extent to which the proposed project involves the contribution of resources from sources other than the applicant to serve as all or part of the applicant’s matching share of funds. The criterion is subdivided into two subcategories, either documented guarantees of support from external entities (up to three points) or evidence of community engagement and mobilization greater than the required match (up to two points). The department does not wish to impede communities from obtaining matching funds in any way possible. Therefore, the proposed provision would allow the department to recognize non-traditional or unorthodox methods of raising matching funds in addition to the traditional methods.

        Proposed new subsection (b)(14) would award 0-5 points for past performance. The department believes that an applicant with a history of competent performance on previous grants represents a lower risk of failure than an applicant with a history of problematic performance. Therefore, up to five points could be awarded to an applicant that either is in full compliance with previous grant agreements or can offer reasonable assurances that existing deficiencies with prior grant performance will be remedied. The new provision would also provide for an automatic award of five points to first-time applicants and allow the department to deduct up to five points for applicants with a history of unresolved compliance issues. The department wishes to encourage participation by all legitimate entities and believes that a five-point award for first-time participants will provide an incentive for potential applicants for grants. Similarly, the department believes that an entity with a history of unresolved compliance issues should be provided an incentive for developing and implementing appropriate corrective measures on previous grants.

2. Fiscal Note.

        Dana Lagarde, Director of Recreation Grants, has determined that for the first five years that the repeals, amendment, and new sections as proposed are in effect, there will be no additional fiscal implications to state or local governments of enforcing or administering the rules as proposed.

3. Public Benefit/Cost Note.

        Ms. Lagarde also has determined that for each of the first five years the proposed rules are in effect:

        (A) The public benefit anticipated as a result of enforcing the rules as proposed will be administrative efficiency in the operation and administration of the local parks and outreach grants programs operated by the agency, which ultimately results in the provision of high-quality public recreational opportunity.

        (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 impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to determine if any further analysis is required. The department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed rules do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

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

        (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 rule as proposed does not impose a cost on regulated persons, 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, but replace existing regulations;

                 (6) not expand or limit an existing regulation, but will repeal and replace existing regulations;

                 (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 proposed rules may be submitted via the department website at www.tpwd.texas.gov or by email to Dana Lagarde at 512-389-8175, e-mail: dana.lagarde@tpwd.texas.gov.

5. Statutory Authority.

        The repeal is proposed under Parks and Wildlife Code, Chapter 24, which requires the department to adopt regulations for grant assistance.

        The proposed repeal affects Parks and Wildlife Code, Chapter 24.

        §61.81. Application Procedures.

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

        Issued in Austin, Texas, on

        The repeal is proposed under Parks and Wildlife Code, which requires the department to adopt regulations for grant assistance.

        The proposed repeal affects Parks and Wildlife Code, Chapter 24. 

        §61.121. Policy.

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

        Issued in Austin, Texas, on

        The repeals are proposed under Parks and Wildlife Code, which requires the department to adopt regulations for grant assistance.

        The proposed repeals affect Parks and Wildlife Code, Chapter 24.

        §61.133. Grants for Outdoor Recreation Programs.

        §61.134. Grants for Indoor Recreation Programs.

        §61.135. Grants for Community Outreach Outdoor Programs.

        §61.136. Small Community Grant Program.

        §61.137. Grants for Regional Parks Grant Programs.

        §61.138. Outdoor Urban Park Grants Program.

        §61.139. Indoor Urban Park Grants Program.

        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

6. Rule Text.

        The amendment and new rules are proposed under Parks and Wildlife Code, Chapter 24, which requires the department to adopt regulations for grant assistance.

        The proposed amendment and new rules affect Parks and Wildlife Code, Chapter 24.

        §61.132. Grants Manual and Federal Procedural Guide[Texas Local Park Grants Programs Manual].

                 (a) The Recreation Grants[Texas Local Park Grants Programs] Manual contains the standards and requirements for the application, evaluation and award of all grants made under this subchapter and[.]

                 [(b) The Texas Local Park Grants Programs Manual] is adopted by reference [and may be obtained by contacting the Texas Parks and Wildlife Department at 4200 Smith School Road, Austin, Texas 78744; (512) 389-8224; or at rec.grants@tpwd.state.tx.us].

                 (b)[(c)] The department is the state agency designated to cooperate with the federal government in the administration of the provisions of the Land and Water Conservation Fund Act of 1965. The federal procedural guide is designed to assist local governments in making application for federal funds, and describes the rules and regulations governing the disbursement of such funds for the Land and Water Conservation Fund Program and is adopted by reference.

                 (c) Copies of the Recreation Grants Manual and the federal procedural guide are available at the Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744 and on the department’s website.

        §61.133. General Provisions.

                 (a) It is the policy of the Texas Parks and Wildlife Commission that the department award and administer projects under this subchapter in accord with the provisions of this subchapter, with the intent to provide the greatest number of high-quality outdoor and indoor recreational opportunities for Texas, consistent with Parks and Wildlife Code, Chapter 24, and the priorities and policies articulated in the department’s  Land and Water Resources Conservation and Recreation Plan and the Texas Outdoor Recreation Plan (required for federal funding), as applicable.

                 (b) The department will not accept or evaluate a project proposal that is not submitted to the department via the department’s on-line application process.

                 (c) The department will not score an application that is not administratively complete. An administratively complete application is an application that is in substantive compliance with the requirements of this subchapter, as determined by the department.

                 (d) If an applicant is in compliance with the conditions of existing or previous grant agreements with the department, the application will be scored and considered for funding.  If the applicant is not in compliance with existing or previous grant agreements, the department may request the applicant to submit an action plan for addressing deficiencies or problematic issues. If the applicant is unable to provide, to the department’s satisfaction, evidence that the deficiencies or problematic issues in question can or will be resolved, the department may choose not to score the application or consider it further.

                 (e) The department will evaluate prospective projects on a qualitative basis, awarding points within the specified range (from 0 (no points) to the maximum allowable for each criterion) according to the department’s determination of how the applicant’s treatment of any given component places along a continuum from poor to excellent. The department will not automatically award points for cursory, mechanical attempts to address as many criteria as possible in order to accrue points.

                 (f) Applications for grants under this subchapter shall be scored according to the provisions of this subchapter and shall be ranked in relation to the scores of other applications under consideration.

                 (g) Projects funded under this subchapter shall be pursued by the sponsor in accordance with the timelines established by the department for each project, unless the department determines that circumstances beyond the sponsor’s control warrant timeline extension. Failure to meet timelines or timeline extensions shall be grounds for the department to initiate cancellation of the affected project.

                 (h) Grant awards are dependent on the availability of grant funds.

        §61.134.  Local Park and Recreation Grant Program.

                 (a) The purpose of this section is to provide a mechanism for determining the suitability of project proposals for funding the acquisition of land and the development of public indoor and outdoor recreation facilities.

                 (b) Scoring Criteria.

                         (1) Complete Application (Total Range: 0-10 points). The applicant furnishes all required information and documentation by the application deadline.

                         (2) Community Need (Total Range: 0-10 points).

                                  (A) Applicant has a current Park, Recreation, and Open Space Comprehensive Plan or other comparable plan on file with the department at the time of application. (5 points)

                                  (B) Applicant:

                                          (i) describes the needs-assessment process used for this project;

                                          (ii) explains the influence of community needs on the site design;

                                          (iii) provides a detailed description of the public input process (including the timing of public comment opportunity, methods for obtaining and analyzing public comment, and the results/impacts of public comment); or

                                          (iv) identifies other methods of needs assessment such as staff recommendations or threat of a lost opportunity. (0-5 points)

                         (3) Goals and Objectives (Total Range: 0-5 points). The project proposal identifies specific, well-defined goals and objectives that both clearly explain the local priorities to be addressed by the proposed project and illustrate how the proposed project, if funded, will support the department’s Land and Water Resources Conservation and Recreation Plan, Texas Outdoor Recreation Plan, and Local Park Grant program objectives, as applicable. Proposed projects that provide direct recreational opportunities will receive priority.

                         (4) Timeline and Cost (Total Range: 0-10 points). The project proposal includes a detailed timeline and budget that identify, on a step-by-step basis, the waypoints along the continuum of the project’s progress from start to finish and all expected project costs associated with the proposed project, correlated chronologically to the timeline. The department will evaluate proposed projects with respect to this criterion based on the feasibility of the project in the context of the department’s empirical understanding of similar projects and the consistency of the submitted budget with that understanding, particularly with respect to acquisition and/or construction costs.

                         (5) Site Design (Total Range: 0-10 points). An application must include a site plan/boundary map that is clear, easy-to-read, and contains all information required by and identified in the funding application.  Acquisition-only projects must describe plans to protect natural and cultural resources and include plans depicting anticipated future development                                                  (A) Site design takes into consideration the character and special features (including features of natural, cultural, or historical importance) of the site and clearly identifies street names, total acreage, true north arrow, utilities, easements, special features, boundaries of existing parkland, and boundaries of acquisition tracts. Site maps correlate with the project components described in the application and outlined in the itemized budget.  (0-5 points)

                                  (B) Project maximizes the use of funds for acquisition, recreation and conservation opportunities, determined by dividing the direct acquisition, recreational, and conservation costs by the total construction costs and multiplying the result by 5. (0-5 points)

                         (6) Organizational capacity (Total Range: 0-5 points).

                                  (A) The applicant demonstrates to the department’s satisfaction that qualified staff and resources are in place to manage the grant from inception to completion, or, alternatively, evidence that the applicant is partnered with an entity to provide staff and/or resources necessary to manage the grant from inception to completion.

                                  (B) The applicant demonstrates to the department’s satisfaction that resources are in place to properly operate and maintain facilities supported by the grant following completion, or, alternatively, a feasible plan and timeline for obtaining resources to properly operate and maintain the facilities supported by the grant following completion.

                         (7) Past Performance (Total Range: 0-5 points).

                                  (A) Applicant is a first-time applicant. (5 points); or

                                  (B) Applicant is in full compliance with the conditions of previously-funded and active recreation grants awarded by the department under this subchapter. (5 points); or

                                  (C) Applicant is not in compliance with the conditions of previously-funded and active recreation grants awarded by the department under this subchapter but provides a credible and feasible action plan and timeline for achieving compliance. (0-5 points); or

                                  (D) Applicant has a history of unresolved compliance violations and/or problematic responses to compliance violations.  (Deduction of 0-5 points).

                         (8) Geographic Distribution (Total Range: 0-5 points). The project will improve the geographic distribution of park and recreation lands and facilities in the project’s service area or within the applicant’s jurisdiction.

                                  (A) Project provides the first public park in the applicant’s jurisdiction or intended service area (5 points); or

                                  (B) Project fills a critical parks and recreation gap as identified through research, public input, or other means. (0-3 points).

                                  (C) Project is safely accessible to the public via multiple modes of transportation (e.g., walking, biking, public transportation system). (0-2 points).

                         (9) Under-served Populations (Total Range: 0-5 points). The proposed project increases opportunity and improves access to parks and recreation facilities for under-served populations.

                                  (A) Project improves opportunities for low-income citizens, defined as the percent of households making less than $35,000 per year, based on economic and demographic data for the service area from the most recent federal census data; and/or

                                  (B) Project improves opportunities for ethnic minority citizens, defined as the percent of a population that does not select "white alone" on the US Census, based on economic and demographic data for the service area from the most recent census data; determined by multiplying the sum of percentage of population qualifying as low-income and percentage of population qualifying as minority by 2.5.

                         (10) Accessibility (Total Range: 0-5 points). The proposed project provides park and recreation opportunities for physically/mentally challenged citizens that exceed federal and state required accessibility standards.

                         (11) Conservation (Total Range: 0-10 points). The proposed project actively protects or restores sensitive ecosystems and incorporates elements that cultivate support for and awareness of natural and/or cultural resources.

                         (12) Sustainable Park Design (Total Range: 0-10 points). The applicant demonstrates that the proposed project uses or incorporates sustainable design features and practices.

                         (13) Coordination with Subject Matter Experts. (Total Range: 0-5 points).

                                  (A) The applicant demonstrates meaningful input to the proposed project by subject matter experts in acquisition, planning, design, natural resource protection, and construction.

                                  (B) The proposed project reflects consideration and inclusion of best management practices in all phases of project development.

                         (14) Outside Partnerships (Total Range: 0-5 points). The extent to which the proposed project involves the contribution of resources from sources other than the applicant to serve as all or part of the applicant’s matching share of funds.

                                  (A) Current, signed letters of commitment providing detailed descriptions of the nature and value of contributions, including methodologies employed to determine those values.  Points shall be awarded on a percentage basis, determined by dividing the total outside contribution value by the total match and multiplying the result by 3. (0-3 points); and/or

                                  (B) Applicant demonstrates and documents external support greater than the required match, including overmatch and/or community mobilization. (0-2 points)

        §65.135. Grants for Community Outreach Outdoor Programs (CO-OP).

                 (a) Program purpose. The purpose of this section is to provide a mechanism for determining the suitability of project proposals to award funding to tax-exempt organizations for programming that engages under-served populations in outdoor recreation, conservation, and environmental education activities that support the department’s mission.

                 (b) Scoring Criteria:

                         (1) CO-OP Priorities (Total Range: 0-15 points).

                                  (A) The quality and efficacy of proposed project outcomes relative to CO-OP priorities. (0-8 point range)

                                  (B) The quality of the proposed project’s involvement of participants in sustained direct connections to the department, including department sites, programs, and personnel. (0-7 point range)

                         (2) Under-served Populations (Total Range: 0-30 points).

                                  (A) The extent to which the proposed project includes target populations, including female, ethnic minority, low-income, and physically or mentally challenged populations. (0-6 point range per target population for a maximum of 24 points.)

                                  (B) A clearly articulated plan demonstrating a reasonable probability that the proposed project will reach the target demographic. (0-3 point range)

                                  (C) A feasible plan to track and report demographic information. (0-3 point range)

                         (3) Expected Impact (Total Range: 0-30 points). The expected project results in terms of participant and environmental impact, including:

                                  (A) A project narrative illustrating goals that are feasible, fully developed, specific, measurable, attainable, relevant, and present a high potential for success. (0-5 point range)

                                  (B) The extent to which the project will develop life-long behaviors consistent with the program mission, with preference for projects that engage participants in multiple experiences over an extended period of time. (0-5 point range)

                                  (C) The extent to which the proposed project will contribute to the development of successive generations of natural resource and outdoor recreation leaders or professionals. (0-5 point range)

                                  (D) Activities utilize a hands-on, active engagement approach to skill development. (0-5 point range)

                                  (E) The quality of the tangible environmental benefits resulting from the activities conducted by participants. (0-10 point range)

                         (4) Timeline and Budget (Total Range: 0-20 points).

                                  (A) The project has an acceptable timeline including a detailed timeline that accounts for all project phases, is achievable, and correlates with the project narrative. (0-10 point range)

                                  (B) The identified budget items are allowable under the administrative guidelines of §61.132 of this title (relating to Grants Manual and Federal Procedural Guide), are reasonable, and clearly support the proposed activities. (0-7 point range)

                                  (C) The budget reflects consciousness of cost effectiveness and provides a reasonable return on investment with respect to participant impact. (0-3 point range)

                         (5) Organizational Capacity (Total Range: 0-5 points). The applicant demonstrates the capacity to manage and implement the grant project:

                                  (A) The proposed project is within the scope of the applicant’s mission. (0-2 point range)

                                  (B) The applicant demonstrates to the department’s satisfaction that qualified staff and resources are in place to manage the grant from inception to completion, or, alternatively, evidence that the applicant is partnered with an entity to provide staff and/or resources necessary to manage the grant from inception to completion. (0-2 point range)

                                  (C) The organization plans to continue similar activities and will maintain grant supported supplies and equipment after the grant period ends. (0-1 point range)

                         (6) Past Performance (Total Range: Deduction of 0-20 points). A scoring deduction will be imposed if the applicant is not in compliance with the conditions of previously-funded grants awarded by the department under this subchapter that were closed within two years from the current application deadline.  Non-compliance includes failure to spend CO-OP grant funds, unfulfilled project elements or grant agreement requirements, unresponsiveness to department requests for information, and consistently missing, late or incomplete reports required by agreement with the department.

        §61.136.  Small Community Grant Program.

                 (a) Program purpose. The purpose of this section is to provide a mechanism for determining the suitability of project proposals for funding the acquisition of land and the development of public outdoor recreation facilities by small communities.

                 (b) Scoring Criteria.

                         (1) Complete Application (Total Range: 0-10 points). The applicant furnishes all required information and documentation by the application deadline.

                         (2) Goals and Objectives (Total Range: 0-5 points). The project proposal identifies specific, well-defined goals and objectives that both clearly explain the local priorities to be addressed by the proposed project and illustrate how the proposed project, if funded, will support the department’s Land and Water Resources Conservation and Recreation Plan, Texas Outdoor Recreation Plan, and Local Park Grant program objectives, as applicable.

                         (3) Community Need (Total Range: 0-10 points). Applicant:

                                 (A) describes the needs-assessment process used for this project;

                                  (B) explains the influence of community needs on the site design;

                                  (C) provides a detailed description of the public input process (including the timing of public comment opportunity, methods for obtaining and analyzing public comment, and the results/impacts of public comment) (0-5 points); and/or

                                  (D) identifies other methods of needs assessment such as staff recommendations or threat of a lost opportunity. (0-5 points)

                         (4) Timeline and Cost (Total Range: 0-10 points). The project proposal includes a detailed timeline and budget that identify, on a step-by-step basis, the waypoints along the continuum of the project’s progress from start to finish and all expected project costs associated with the proposed project, correlated chronologically to the timeline and site plan. The department will evaluate proposed projects with respect to this criterion based on the feasibility of the project in the context of the department’s empirical understanding of similar projects and the consistency of the submitted budget with that understanding, particularly with respect to acquisition and/or construction costs.

                         (5) Site Design (Total Range: 0-10 points). An application must include a site plan/boundary map that is clear, easy-to-read, and contains all information required by and identified in the funding application.  Acquisition-only projects must include plans depicting anticipated future development.

                                  (A) Site design takes into consideration the character and special features (including features of natural, cultural, or historical importance) of the site and clearly identifies street names, total acreage, true north arrow, utilities, easements, special features, boundaries of existing parkland, and boundaries of acquisition tracts. (0-5 points)

                                  (B) Project maximizes the use of funds for acquisition, recreation and conservation opportunities, determined by dividing the direct acquisition, recreational, and conservation costs by the total construction costs and multiplying the result by 5. (0-5 points)

                         (6) Organizational capacity (Total Range: 0-5 points).

                                  (A) The applicant demonstrates to the department’s satisfaction that qualified staff and resources are in place to manage the grant from inception to completion, or, alternatively, evidence that the applicant is partnered with an entity to provide staff and/or resources necessary to manage the grant from inception to completion.

                                  (B) The applicant demonstrates to the department’s satisfaction that resources are in place to properly operate and maintain facilities supported by the grant following completion, or, alternatively, a feasible plan and timeline for obtaining resources to properly operate and maintain the facilities supported by the grant following completion.

                         (7) Geographic Distribution (Total Range: 0-5 points). The project will improve the geographic distribution of park and recreation lands and facilities in the project’s service area or within the applicant’s jurisdiction.

                                  (A) Project provides the first public park in the applicant’s jurisdiction or intended service area (5 points); or

                                  (B) Project fills a critical parks and recreation gap as identified through research, public input, or other means. (0-3 points).

                                  (C) Project is safely accessible to the public via multiple modes of transportation (e.g., walking, biking, public transportation system). (0-2 points).

                         (8) Under-served Populations (Total Range: 0-5 points). The proposed project increases opportunity and improves access to parks and recreation facilities for under-served populations.

                                  (A) Project improves opportunities for low-income citizens, defined as the percent of households making less than $35,000 per year, based on economic and demographic data for the service area from the most recent federal census data; or

                                  (B) Project improves opportunities for ethnic minority citizens, defined as the percent of a population that does not select "white alone" on the US Census, based on economic and demographic data for the service area from the most recent census data; determined by multiplying the sum of percentage of population qualifying as low-income and percentage of population qualifying as minority by 2.5.

                         (9) Accessibility (Total Range: 0-5 points). The proposed project provides park and recreation opportunities for physically/mentally challenged citizens that exceed federal and state required accessibility standards.

                         (10) Conservation (Total Range: 0-10 points). The proposed project actively protects or restores sensitive ecosystems and incorporates elements that cultivate support for and awareness of natural and cultural resources.

                         (11) Sustainable Park Design (Total Range: 0-10 points). The applicant demonstrates that the proposed project incorporates sustainable design features and practices.

                         (12) Coordination with Subject Matter Experts. (Total Range: 0-5 points).

                                  (A) The applicant demonstrates meaningful input to the proposed project by subject matter experts in natural and cultural resource protection, acquisition, planning, design, and construction.

                                  (B) The proposed project reflects consideration and inclusion of best practices in all phases of project development.

                         (13) Outside Partnerships (Total Range: 0-5 points). The extent to which the proposed project involves the contribution of resources from sources other than the applicant to serve as all or part of the applicant’s matching share of funds.

                                  (A) Current, signed letters of commitment providing detailed descriptions of the nature and value of contributions, including methodologies employed to determine those values.  Points shall be awarded on a percentage basis, determined by dividing the total outside contribution value by the total match and multiplying the result by 3. (0-3 points); and/or

                                  (B) Applicant demonstrates and documents external support greater than the required match, including overmatch and/or community mobilization. (0-2 points).                                                (14) Past Performance (Total Range: 0-5 points).

                                  (A) Applicant is a first-time applicant. (5 points); or

                                  (B) Applicant is in full compliance with the conditions of previously-funded and active recreation grants awarded by the department under this subchapter. (5 points); or

                                  (C) Applicant is not in compliance with the conditions of previously-funded and active recreation grants awarded by the department under this subchapter but provides credible and feasible action plan and timeline for achieving compliance. (Deduction of 0-5 points).

        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. 18
Presenter: Bob Sweeney

Work Session
Litigation Update
May 21, 2019

I.      Executive Summary:  Attorneys for the Texas Parks and Wildlife Department (TPWD) will update and advise the Texas Parks and Wildlife Commission regarding pending or anticipated litigation, including but not limited to the following pending lawsuits:

  • Potential or pending litigation related to oysters, including but not limited to State of Texas v. Chambers-Liberty Counties Navigation District, Each in his Official Capacity: Terry Haltom as CLCND Commissioner, Allen Herrington as CLCND Commissioner, Kenn Coleman as CLCND Commissioner, Ken Mitchell as CLCND Commissioner, and Dave Wilcox as CLCND Commissioner, and Sustainable Texas Oyster Resources Management, LLC., Cause No. D-1-GN-15-003093, in Travis County District Court.
  • Potential or pending litigation regarding disease in white-tailed deer, including but not limited to 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 Travis County District Court; and Labelleco Whitetail Ranch, Inc., and Ryan Merendino v. Carter Smith, Executive Director, Mitch Lockwood, Big Game Program Director and Texas Parks and Wildlife Department, Cause No. D-1-GN-18-001480, in Travis County District Court.

Work Session Item No. 19
Presenters: Bob Sweeney
Todd George

Work Session
Public Utility Commission Litigation
Transmission Line in Brazoria County
May 21, 2019

I.      Executive Summary:  CenterPoint Energy Houston Electric, LLC may request the Texas Parks and Wildlife Commission (Commission) grant an easement for an electric transmission line across a portion of the Justin Hurst Wildlife Management Area (WMA).

II.     Discussion: CenterPoint Energy Houston Electric, LLC (CenterPoint) has filed an application with the Public Utility Commission (PUC) to amend CenterPoint’s Certificate of Convenience and Necessity (CCN) to construct a new 345 kV transmission line connecting the existing Bailey substation located in Wharton County to the existing Jones Creek substation located in Brazoria County. The proposed transmission line will or may run through Brazoria, Matagorda, and Wharton Counties. CenterPoint’s CCN application has been referred to the State Office of Administrative Hearings for a contested case hearing. The Texas Parks and Wildlife Department (TPWD) has intervened and participated in this CCN matter.

Attachments – 3

  1. Exhibit A – Location Map
  2. Exhibit B – Vicinity Map
  3. Exhibit C – Site Map

Work Session Item No. 19
Exhibit A

Location Map for Justin Hurst Wildlife Management Area in Brazoria County

Location Map for Justin Hurst Wildlife Management Area in Brazoria County


Work Session Item No. 19
Exhibit B

Vicinity Map for Justin Hurst Wildlife Management Area (WMA), 60 Miles South of Houston

Vicinity Map for Justin Hurst Wildlife Management Area


Work Session Item No. 19
Exhibit C

Site Map for Justin Hurst Wildlife Management Area Showing Potential Route for 345 kV
Transmission Line in White
Wildlife Management Area Outlined in Orange

Site Map for Justin Hurst Wildlife Management Area