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
August 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. 4
Presenter: Meredith Longoria

Work Session
Amendment to the Threatened and Endangered Species List Rules
Request Permission to Publish Proposed Changes in the Texas Register
August 21, 2019

I.      Executive Summary: With this item, the staff seeks permission to publish proposed amendments to the Texas Parks and Wildlife Department’s (TPWD) lists of federally endangered and state threatened non-game wildlife in the Texas Register.  The proposed amendments would:

• Remove the Black-capped vireo, Humpback whale, and West Indian manatee from the list of endangered species as a result of federal listing actions;
• Add Texas hornshell, Mexican blindcat, two species of minnows, five whales, and one species of plant to the state list of endangered species as a result of federal listing actions;
• Remove Bald eagle, Reticulate collared lizard, Reticulated gecko, Southern yellow bat, Chihuahuan Desert lyre snake, Smooth green snake, Texas indigo snake, Timber (Canebrake) rattlesnake, Triangle pigtoe, Golden orb, Smooth pimpleback, Opossum pipefish, from the state list of threatened species; and
• Add four amphibians, twelve species of aquatic invertebrates, three birds, thirteen freshwater fish, two mammals, two reptiles, three sharks, and eight plants to the state list of threatened species. 

II.     Discussion: Under Texas Parks and Wildlife Code chapter 68, a species of fish or wildlife indigenous to Texas is endangered if it appears on the United States List of Endangered Native Fish and Wildlife or is on a list of species threatened with statewide extinction as filed by the TPWD executive director with the Texas Secretary of State.  As a matter of policy, the federal list is maintained by rule as a convenience to the public. Under Texas Parks and Wildlife Code chapter 67, the Texas Parks and Wildlife Commission (Commission) is authorized to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that TPWD considers necessary to manage the species. TPWD has designated certain species of nongame wildlife as threatened, which prevents take. Under Texas Parks and Wildlife Code chapter 88, a species of plant is endangered, threatened, or protected if it is indigenous to Texas and (1) listed by the federal government as endangered, or (2) designated by the TPWD executive director as endangered, threatened, or protected.  At the current time, TPWD maintains a single list of endangered plants that contains only those plants indigenous to Texas listed by the federal government as endangered, as well as a list of plant species designated as threatened.

The species being removed from the list of endangered species have been declared recovered by the U.S. Fish and Wildlife Service. The species being added to the endangered species list have been listed as endangered by the U.S. Fish and Wildlife Service.

Until recently, there has been no standardized method for listing, down-listing, or de-listing native animal and plant species on TPWD’s lists of threatened species. The Conservation Status Assessment Protocol developed by NatureServe (Faber-Langendoen et al., 2012) is widely used across North America by the network of state Natural Heritage Programs, many state and federal agencies, and non-governmental organizations (Master, 1991).  These status ranks are used to define conservation priorities, influence development activities, and shape land management efforts by governmental agencies, conservation groups, industry, and private landowners. The staff of the Wildlife, Coastal Fisheries, and Inland Fisheries Divisions use these ranks to denote Species of Greatest Conservation Need for TPWD’s Texas Conservation Action Plan. The NatureServe protocol assesses species according to a set of 10 biological and external factors that may affect their persistence, including: population size, range extent, area of occupancy, number of occurrences, number of occurrences or percent of area occupied with good viability/ecological integrity, environmental specificity, assigned overall threat impact, intrinsic vulnerability, and long-term and short-term trends in population size or area. On the basis of this protocol, the staff has determined that the species being proposed for listing as state threatened species are species likely to become endangered in the future.

Work Session Item No. 4
Exhibit A

THREATENED AND ENDANGERED SPECIES RULES
PROPOSAL PREAMBLE

1.  Introduction.  The Texas Parks and Wildlife Department (the department) proposes amendments to §65.175 and §65.176, concerning Threatened and Endangered Nongame Species.

        The proposed amendment to §65.175, concerning Threatened Species, would remove the Bald Eagle, Reticulate collared lizard, Reticulated gecko, Southern yellow bat, Chihuahuan Desert lyre snake, Smooth green snake, Texas indigo snake, Timber (Canebrake) rattlesnake,  Opossum pipefish, and four species of mussels (Golden orb, Smooth pimpleback, Texas hornshell, Triangle pigtoe) from the list of threatened species, and add four species of salamander (the Georgetown salamander, Jollyville Plateau salamander, Salado Springs salamander,  Texas salamander), eight species of freshwater gastropods (an unnamed cave snail (Phreatodrobia coronae), Carolinae tryonia, Caroline’s Springs pyrg, Clear Creek amphipod, Limpia Creek Spring snail, Metcalf’s tryonia, Presidio County Spring snail, Texas troglobitic water slater), four species of mussels (Trinity pigtoe, Guadalupe orb, Guadalupe fatmucket, Brazos heelsplitter), three species of birds (Black rail, Red-crowned parrot, Rufa red knot), 13 species of freshwater fishes (Tamaulipas Shiner, Rio Grande Shiner, Headwater Catfish, Speckled Chub, Prairie Chub, Arkansas River Speckled Chub, Chub Shiner, Red River Pupfish, Plateau Shiner, Roundnose Minnow, Medina Roundnose Minnow, Nueces Roundnose Minnow, Guadalupe Darter), three species of saltwater fishes (Oceanic whitetip, Great hammerhead, Shortfin mako), two species of mammals (Tawny-bellied cotton rat, West Indian manatee), and two species of reptiles (Concho water snake, Dune sagebrush lizard). The proposed amendment would also rename one category of organisms, replacing “molluscs” with “aquatic invertebrates,” which is taxonomically more accurate.

        Under Parks and Wildlife Code, Chapter 67, the commission is authorized to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species. Until recently, there has been no standardized method for listing, down-listing, or de-listing native animal and plant species on the department’s lists of threatened species. The Conservation Status Assessment protocol developed by NatureServe (Faber-Langendoen et al., 2012) is widely used across North America by the network of state Natural Heritage Programs, many state and federal agencies, and non-governmental organizations (Master, 1991). These status ranks are used to define conservation priorities, influence development activities, and shape land management efforts by governmental agencies, conservation groups, industry, and private landowners. The department has begun using protocol to denote Species of Greatest Conservation Need (SGCN) for the department’s Texas Conservation Action Plan. The NatureServe protocol assesses species according to a set of 10 biological and external factors that may affect their persistence, including Population Size, Range Extent, Area of Occupancy, Number of Occurrences, Number of Occurrences or Percent of Area Occupied with Good Viability/Ecological Integrity, Environmental Specificity, Assigned Overall Threat Impact, Intrinsic Vulnerability, and Long-term and Short-term Trends in population size or area. On the basis of this protocol, staff have determined that the species being proposed for listing as threatened species are species likely to become endangered in the future. With respect to the four species of mussels being removed, one species (the Texas hornshell) is being removed from the list of threatened species because it has been listed by the federal government as endangered. The other three are being removed because from time to time the scientific community reclassifies an organism in light of consensus and/or emerging science. The Golden orb, Smooth pimpleback, and Texas pigtoe mussel have been reclassified as members of other protected taxa.

        The proposed amendment to §65.176, concerning Endangered Species, would remove the Black-capped vireo, Humpback whale and West Indian manatee from the list of endangered species while adding three species of fish, five species of whales, and one species of mussel. The proposed amendment also would add language to clarify that a species automatically receives state protection as an endangered species under state law in Texas if it is indigenous to Texas and listed by the federal government as endangered and would place three categories of organisms (molluscs, crustacea, aquatic animals) under a single heading (“aquatic invertebrates),” which is taxonomically more accurate.

        Under Parks and Wildlife Code, Chapter 68, a species is endangered under state law if it is (1) indigenous to Texas and listed by the federal government as endangered; or (2) designated by the executive director of the Texas Parks and Wildlife Department as “threatened with statewide extinction.” At the current time, the department maintains a single list of endangered species that consists only of those species indigenous to Texas listed by the federal government as endangered. The only species considered as “threatened with statewide extinction” under state law are those species listed as endangered by the federal government.

        Under Chapter 68, the department is not required to list federally endangered species by rule; however, whenever the federal government modifies the list of endangered species, the executive director is required to file an order with the secretary of state regarding the modification. Similarly, the executive director may amend the list of species threatened with statewide extinction by filing an order with the secretary of state, but must provide notice of intent to file such an order at least 60 days prior to filing the order. This rulemaking constitutes the department’s notice of intent to modify the endangered species list.

        The Black-capped vireo was removed from the federal list of endangered species effective May 16, 2018 (83 FR 16228). Nearly extinct by 1990, it has experienced significant population rebound as a result of an intensive multi-state restoration and recovery effort.

        The West Indian manatee was removed from the federal list of endangered species effective May 5, 2017 (82 FR 16668) and simultaneously placed on the federal list of threatened species. Texas does not have permanent populations of this species, but individuals have been documented in Texas with increasing frequency during summer migrations; therefore, staff recommends that in addition to removing this species from the state endangered list that it be added to the state threatened list in order to afford protection to individuals that may appear in Texas as well as to prevent possible conflict and confusion with respect to its federal status as threatened.

        The Gulf of Mexico population of Humpback whale was removed from the federal list of endangered species, effective October 11, 2016 (81 FR 93639 96341).

        The Mexican blindcat was listed as endangered by the U.S. Fish and Wildlife Service effective June 2, 1970 (35 FR 8491 8498) but has recently been documented to occur in Texas (within a deep cave at Amistad National Recreational Area).

        The Sharpnose and Smalleye shiners were listed as endangered by the U.S. Fish and Wildlife Service effective September 3, 2014 (79 FR 45274). They are minnows native to streams in the upper reaches of the Brazos River basin in northwestern Texas whose historical ranges have been reduced by more than 50 percent.

        The Blue whale was listed as endangered by the U.S. Fish and Wildlife Service effective December 2, 1970 (35 FR 18319) and has been documented as occurring in the Gulf of Mexico.

        The Gulf of Mexico population of Bryde’s whale was listed as endangered by the U.S. Fish and Wildlife Service effective May 15, 2019 (84 FR 15446).

        The North Atlantic right whale was listed as endangered by the U.S. Fish and Wildlife Service effective April 7, 2008 (73 FR 12024) and has been documented as occurring in the Gulf of Mexico.

        The Sei whale was listed as endangered by the U.S. Fish and Wildlife Service effective December 2, 1970 (35 FR 12222) and has been documented as occurring in the Gulf of Mexico.

        The Sperm whale was listed as endangered by the U.S. Fish and Wildlife Service effective December 2, 1970 (35 FR 18319) and has been documented as occurring in the Gulf of Mexico.

        The Texas hornshell mussel was listed as endangered by the U.S. Fish and Wildlife Service effective March 12, 2018 (83 FR 5720). This mussel is known to exist in the Devils River, the Pecos River, and the Rio Grande.

2. Fiscal Note.

        Meredith Longoria, Nongame and Rare Species Program Leader, has determined that for each of the first five years the amendments as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the protection of vulnerable species of indigenous fish and wildlife, as well as regulations that are accurate and informative.

        (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 prohibit the intentional take of other species that are of no known commercial value and therefore 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.

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

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

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

        (F) The department has determined that because the rules as proposed do 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 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) not create a new regulation, but alter the number of organisms subject to regulation;

                 (6) expand an existing regulation (by adding species to the state lists of threatened and endangered species list), and relax an existing regulation (by removing species from the state endangered species list);

                 (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.

Work Session Item No. 4
Exhibit B

ENDANGERED, THREATENED, AND PROTECTED NATIVE PLANTS RULES
PROPOSAL PREAMBLE

1.  Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §69.8, concerning Endangered and Threatened Plants. The proposed amendment would add one species to the list of endangered species of plants and eight species to the list of threatened plants.

        Under Parks and Wildlife Code, Chapter 88, a species of plant is endangered, threatened, or protected if it is indigenous to Texas and (1) listed by the federal government as endangered, or (2) designated by the executive director of the Texas Parks and Wildlife Department as endangered, threatened or protected.  At the current time, the department maintains a single list of endangered plants that contains only those plants indigenous to Texas listed by the federal government as endangered.

        Under Chapter 88, the department is not required to list federally endangered plants by rule; however, whenever the federal government modifies the list of endangered plants, the executive director is required to file an order with the secretary of state regarding the modification. Similarly, the executive director may amend the list of endangered, threatened, and protected species by filing an order with the secretary of state, but must provide notice of intent to file such an order at least 60 days prior to filing the order. This rulemaking constitutes the department’s notice of intent to modify the list of endangered, threatened, and protected native plants.

        Until recently, there has been no standardized method for listing, down-listing, or de-listing native animal and plant species on the department’s lists of threatened species. The Conservation Status Assessment protocol developed by NatureServe (Faber-Langendoen et al., 2012) is widely used across North America by the network of state Natural Heritage Programs, many state and federal agencies, and non-governmental organizations (Master, 1991). These status ranks are used to define conservation priorities, influence development activities, and shape land management efforts by governmental agencies, conservation groups, industry, and private landowners. The department has begun using protocol to denote Species of Greatest Conservation Need (SGCN) for the department’s Texas Conservation Action Plan. The NatureServe protocol assesses species according to a set of 10 biological and external factors that may affect their persistence, including Population Size, Range Extent, Area of Occupancy, Number of Occurrences, Number of Occurrences or Percent of Area Occupied with Good Viability/Ecological Integrity, Environmental Specificity, Assigned Overall Threat Impact, Intrinsic Vulnerability, and Long-term and Short-term Trends in population size or area. On the basis of this protocol, staff have determined that the species being proposed for listing as threatened species are species likely to become endangered in the future.

        The Guadalupe Fescue (Festuca ligulata) was listed as endangered by the U.S. Fish and Wildlife Service effective October 10, 2017  (82 FR 422245).

2. Fiscal Note.

        Meredith Longoria, Nongame and Rare Species Program Leader, has determined that for each of the first five years the amendment as proposed is in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

        Ms. Longoria also has determined that for each of the first five years the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the protection of vulnerable species of indigenous plants, as well as regulations that are accurate and informative.

        (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 rule prohibits the intentional take of a species of no known commercial value and therefore does 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.

        (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 rule.

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

        (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 alter the number of organisms subject to regulation;

                 (6) expand, limit, or repeal an existing regulation (by adding a species to the state endangered species list);

                 (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.

Work Session Item No. 5
Presenter: Jarret Barker

Work Session
Passive Gear Tagging Rules
Request Permission to Publish Proposed Changes in the Texas Register
August 21, 2019

I.      Executive Summary: With this item, the staff seeks permission to publish proposed amendments to regulations governing passive fishing gear (gear that is typically left unattended, such as jug lines, throwlines, trotlines, etc.) in the Texas Register for public comment. The proposed amendments would:

• alter definitions to facilitate the seizure of abandoned passive gear as contraband;
• stipulate the dimensions and colors of floats required for various passive gears; and
• reduce the period of validity of gear tags from ten days to four days. 

II.     Discussion: Under Texas Parks and Wildlife Code chapters 61, 66, and 67, the Texas Parks and Wildlife Commission (Commission) has the authority to regulate: the periods of time when it is lawful to take or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take or possess aquatic animal life in this state; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.

At the May 21, 2019 Commission Work Session, staff briefed the Commission on issues related to fishing gear abandoned in public waters, including the results of field trials of long-term trotline sets. The Commission subsequently directed staff to develop proposed rules to address passive gears, such as additional identification requirements for gear tags, reduction of the period of validity for certain gear tags, and measures to increase the visibility of passive gears to boaters, swimmers, and enforcement personnel.

Work Session Item No. 5
Exhibit A

STATEWIDE RECREATIONAL AND COMMERCIAL FISHING PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §57.971, concerning Definitions and §57.973, concerning Devices, Means, and Methods. The proposed changes would alter definitions and gear tag requirements for jug lines, minnow traps, perch traps, throwlines, and trotlines to facilitate the removal of abandoned fishing gear from public waters.

        The proposed amendment to §57.971 would alter the definitions for juglines, minnow traps, perch traps, throwlines, and trotlines by stipulating that each type of gear must have the required floats and tags attached in order to be valid as lawful gear. The changes are necessary in order to distinguish bona fide fishing gear from abandoned fishing gear and litter.

        The proposed amendment to §57.973, concerning Devices, Means, and Methods, would reduce the period of validity for a gear tag from 10 days to four days. Under current rules, gear tags are required to affixed to most fishing devices that are typically left unattended, such as trotlines. The department has determined that because such devices continue to fish and represent a danger to birds and aquatic organisms when they are abandoned, it is necessary to require a gear tag and the accompanying gear be checked more frequently than 10 days. Under Parks and Wildlife Code, §12.1105, the department is authorized to seize a device that is in or on water in violation of a regulation of the commission. By defining juglines, minnow traps, perch traps, throwlines, and trotlines as devices that must be affixed with a valid gear tag and float in order to be lawfully used, the department will be able to seize and remove unmarked devices, thereby preventing abandoned devices from continuing to negatively impact fish and wildlife populations. Removal of such devices will also assist the department in determining actual levels of fishing effort for various devices and will have the additional benefit of reducing threats to human health and safety.

        By establishing a period of validity for gear tags of four days, the department intends to encourage a proactive approach to the use of passive fishing gears. Scientific investigations conducted by the department conclusively show that the majority of mortalities as a result of “ghost fishing” (the continuing of effect of unattended passive gears) occur after four days.

2. Fiscal Note.

        Ken Kurzawski, Program Director, Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be minimal fiscal implications to the department and county governments as a result of administering or enforcing the rules. Under Parks and Wildlife Code, §12.1105, when unlawful fishing gear is seized by the department and the owner of the gear cannot be determined, the department is required to give notice of the seizure to a county court with jurisdiction and the county, and following a hearing in the court of jurisdiction, may destroy the gear.

        The proposed amendments will not result of fiscal implications to any other units of state or local government.

3. Public Benefit/Cost Note.

        Mr. Kurzawski 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 the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state by reducing the negative impacts of abandoned fishing gear, the increased ability of the department to determine the impacts of various gears on fish populations, the removal of what effectively is litter, and the reduction of threats to human health and safety resulting from abandoned fishing gear.

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

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impacts to small businesses, micro-businesses, or rural communities. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed amendments regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest fisheries resources in this state and therefore 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.

The department also has determined that the proposed amendment to §57.992 will not directly affect small businesses, micro-businesses, or rural communities. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the 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) 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) not create a new regulation;

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

                 (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.

Work Session Item No. 7
Presenters: Tim Spice
Cody Jones

Work Session
Boater Education Fee Rules
Request Permission to Publish Proposed Changes in the Texas Register
August 21, 2019

I.      Executive Summary: With this item, the staff seeks permission to publish proposed amendments to rules governing boater education in the Texas Register for public comment. The proposed amendments would:

• eliminate provisions regarding classroom elements of boater education;
• eliminate the current provision requiring a service fee schedule to be established by the executive director;
• eliminate the exemption from collecting and forwarding a $10 fee to the Texas Parks and Wildlife Department (TPWD) for online providers of boater education;
• eliminate a provision establishing that the fees required by the section do not affect enhanced content offered by a boating education provider; and
• make nonsubstantive housekeeping changes.

II.     Discussion: Under Texas Parks and Wildlife Code section 31.109, no person born on or after September 1, 1993 may operate a personal watercraft, motorboat powered by a motor of greater than 15 horsepower, or a windblown vessel over 14 feet in length on public waters unless that person possesses evidence of successful completion of a boater education course approved by TPWD.

The staff has determined that, due to the popularity of online education, certain more traditional elements of course delivery can be eliminated. Additionally, the staff seeks to eliminate problematic internal administrative processes related to the assessment and collection of fees by third party providers of boater education courses.

Work Session Item No. 7
Exhibit A

BOATER EDUCATION RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §51.81, concerning Mandatory Boater Education. The proposed amendment would eliminate provisions regarding classroom elements of boater education and effect nonsubstantive housekeeping changes.

        The Texas Water Safety Act (Parks and Wildlife Code, Chapter 31) requires persons born after September 1, 1993 to complete an approved boater education course before legally being able to operate a vessel of more than 15 horsepower, a windblown vessel of more than 14 feet in length, or a personal watercraft alone in public water. Almost all boater education is now provided via online and distance education modalities, making classroom components obsolete. Therefore, the proposed amendment would eliminate the requirement that a student attend at least six hours of training and be evaluated by an instructor. The proposed amendment also would eliminate the home study program, which the department has determined is not utilized enough to justify continuance and reword a provision governing the waiting period between examinations to make it clear that the provision applies to the equivalency examination and not a course examination. Additionally, the proposed amendment would require a background check to be conducted for persons seeking to become certified boating education instructors, which the department deems prudent in order to ensure that persons delivering boater education instruction under the aegis of the department are of sufficient character. Finally, the proposal would eliminate subsection (g), which is unnecessary because the provision applies only to persons who are exempt from mandatory boater education requirements by age.

2. Fiscal Note.

        Tim Spice, Boating Safety Education Manager, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

        Mr. Spice also has determined that for each of the first five years the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the continued availability of convenient boater education certification and the continued public safety benefits associated with reduced accident rates, insurance costs, and enforcement costs that are proven to result from boater education courses.

        (B) There will be no adverse economic effect on persons required to comply with the rule 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 affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that there will be no direct economic impacts on small businesses, microbusinesses, or rural communities. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

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

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

        (F) 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) will not create a new regulation;

                 (6) limit an existing regulation (by eliminating classroom components of boater education) but will not expand or repeal an existing regulation;

                 (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 rule may be submitted to Tim Spice, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8141 (email: tim.spice@tpwd.texas.gov).

5. Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, §31.108, which requires the commission to adopt rules to administer a boating education program.

        The proposed amendment affects Parks and Wildlife Code, Chapter 31.

        §51.81. Mandatory Boater Education.

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

                 (c) The course is successfully completed when the student[:]

                         [(1) attends at least six hours of training;]

                         [(2) is evaluated by the instructor as acceptable in attitude, knowledge and skill; and]

                         [(3)] scores a minimum of 70% on a course exam prescribed by the department.

                 (d) In lieu of a course, a person may complete an equivalency exam process consisting of a multiple-choice exam proctored by an agent appointed by the department or accessed through a department-sponsored web site.

                         (1) Equivalency[Home study and equivalency] exam passage shall be set at a minimum 80 percent passing score.

                         (2) A person who fails the equivalency exam must wait at least 24 hours to[may] retake it [one time at least 24 hours after the time of first completion].

                 (e) (No change.)

                 (f) The department shall:

                         (1) train and certify boater education instructors upon completion of an application, background check, game warden interview and proof of student and instructor course completion;

                         (2) – (3) (No change.)

                 [(g) In addition to those exemptions established in Parks and Wildlife Code, §31.110, and authorized in §31.108(b), persons who have successfully completed a "voluntary boater education course" previously administered or approved by the department are exempt from the requirements established in this subchapter.]

                 (g)[(h)] A person 18 years of age or older may obtain a one-time deferral from the boater-education requirements of Parks and Wildlife Code, §31.109, after paying the fee established in §53.50 of this title (relating to Training and Certification Fees) to the department.

                         (1) A deferral under this subsection does not authorize any person to supervise the operation of a vessel by any other person.

                         (2) A boater education deferral is valid for 15 consecutive days beginning on the date of purchase and ending at midnight of the 15th day following purchase.

                 (h)[(i)] A person engaged in showing, testing, or demonstrating boats under Parks and Wildlife Code, §31.041(d), is exempt from the boater education course requirement while showing, testing, or demonstrating a boat.

        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. 7
Exhibit B

BOATER EDUCATION FEES RULES
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §53.50, concerning Training and Certification Fees. The proposed amendment would eliminate the current provision requiring a service fee schedule to be established by the executive director, a provision exempting an online provider of boater education from collecting and forwarding a $10 fee to the department, and a provision establishing that the fees required by the section do not affect enhanced content offered by a boating education provider.

        The Texas Water Safety Act (Parks and Wildlife Code, Chapter 31), requires persons born after September 1, 1993 to complete an approved boater education course before legally being able to operate a vessel of more than 15 horsepower, a windblown vessel of more than 14 feet in length, or a personal watercraft alone in public water.

        Parks and Wildlife Code, §31.108 allows the department to appoint agents to administer a boater education course or course equivalency examination. Section 31.108 requires agents to collect and forward to the department a $10 course or examination fee and allows agents to collect and retain a service fee.  The department has determined that the statutory provision of Parks and Wildlife Code, §31.108(b) do not apply to the provision in current rule exempting agents from the requirement to collect and forward to the department a $10 course or examination fee. The department has also determined that because there are a number of easy, and in some case free, options for persons to obtain boater education, it is unnecessary to cap the amount of a service fee that a provider may charge a customer for a boater education course; therefore, the proposed amendment would eliminate the service fee cap and the provision requiring the executive director to establish a fee schedule for that purpose. The proposed rule would have the effect of defaulting to the requirements imposed by statute.

2. Fiscal Note.

        Mr. Tim Spice, Boating Safety Education Manager, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to the department as a result of enforcing or administering the rule. The department estimates that there will be a revenue increase of approximately $225,000 in Fiscal Year 2020, increasing by approximately 10 percent per year thereafter, as a result of internet providers collecting and forwarding to the department a fee of $10 per boater education participant.

        There will be no fiscal implications for other units of state or local government.

3. Public Benefit/Cost Note.

        Mr. Spice also has determined that for each of the first five years the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the continued availability of convenient boater education certification and the continued public safety benefits associated with reduced accident rates, insurance costs, and enforcement costs that are proven to result from boater education courses.

                 (B) There will be no adverse economic effect on persons required to comply with the rule as proposed.

        (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that there will be no direct economic impacts on small businesses, microbusinesses, or rural communities. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

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

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

        (F) 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) will not create a new regulation;

                 (6) expand an existing regulation (by eliminating the exemption for the requirement to collect and forward a fee to the department for online boater education classroom components of boater education) but will not limit or repeal an existing regulation;

                 (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 rule may be submitted to Tim Spice, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8141 (e-mail: tim.spice@tpwd.texas.gov).

5. Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, §31.108, which requires the commission to adopt rules to administer a boating education program.

        The proposed amendment affects Parks and Wildlife Code, Chapter 31.

        §53.50. Training and Certification Fees.

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

                 (c) Boater education fees.

                         (1) (No change.)

                         (2) An[Except as provided in paragraph (4) of this subsection, an] agent shall collect a $10 per person examination or course fee and forward that fee to the department within 30 days after the examination or course is administered.

                         (3) In addition to the examination or course fee described in paragraph (2) of this subsection, an agent may charge and keep a service fee [in an amount established in a fee schedule approved by the director, which shall not exceed $25].

                         [(4) An agent providing an Internet-based boater education course and examination is exempt from the requirement to collect and forward to the department the $10 examination or course fee.]

                         [(5) The fees established in this subsection apply only to course content necessary to satisfy the minimum requirements for boater education certification in Texas. Nothing in this subsection shall be construed to prohibit an agent from providing and charging a fee for enhanced content.]

                         (4)[(6)] The fee for obtaining a boater education deferral is $10.

        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. 15
Presenter: Ted Hollingsworth

Work Session
Grant of Easement – Brazoria County
Approximately 66 Acres at the Justin Hurst Wildlife Management Area
Request Permission to Begin the Public Notice and Input Process
August 21, 2019

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

II.     Discussion: On September 12, 2018, CenterPoint filed an application with the Public Utility Commission 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.

The Justin Hurst WMA is located near the Jones Creek Substation.  CenterPoint has proposed a route that would run approximately 5.4 miles through the WMA paralleling existing transmission lines.   CenterPoint requests that the Commission authorize an easement for this route through the WMA.

The staff requests permission to begin the public notice and input process.

Work Session Item No. 15
Exhibit A

Location Map for Justin Hurst Wildlife Management Area in Brazoria County

Work Session Item No. 15
Exhibit B

Vicinity Map for Justin Hurst Wildlife Management Area (WMA)

Work Session Item No. 15
Exhibit C

Site Map for Justin Hurst Wildlife Management Area (WMA)
Showing Potential Route for 345-kV Transmission Line
Easement Route in Red

Work Session Item No. 16
Presenter: Bob Sweeney

Work Session
Litigation Update
August 21, 2019

I.      Executive Summary:  Attorneys for the Texas Parks and Wildlife Department (TPWD) and the Office of the Attorney General 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.

Work Session Item No. 17
Presenter: Chairman S. Reed Morian

Work Session
Personnel Matters
Performance Evaluation of the Texas Parks and Wildlife Department Executive Director
August 21, 2019

I.      Executive Summary:

• Annual Performance Evaluation of the Texas Parks and Wildlife Department Executive Director