Commission Agenda Item No. 2
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 (Crowned Cavesnail, Carolinae Tryonia, Caroline’s Springs Pyrg, Clear Creek Amphipod, Limpia Creek Springsnail, Metcalf’s Tryonia, Presidio County Springsnail, 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), and two species of mammals (Tawny-bellied Cotton Rat, West Indian Manatee). 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 this 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 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 Triangle Pigtoe mussel have been recently reclassified as members of other taxa that are not considered to be in immediate danger.

        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 (Mollusca, 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 USFWS 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 USFWS 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 USFWS 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 USFWS effective May 15, 2019 (84 FR 15446).

        The North Atlantic Right Whale was listed as endangered by the USFWS 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 USFWS 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 USFWS 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 USFWS 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 direct 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) 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.

Commission Agenda Item No. 2
Exhibit B

ENDANGERED, THREATENED, AND PROTECTED NATIVE PLANTS
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 this 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).

        The proposed amendment also eliminates the subcategories of endangered and threatened plants and replaces them with a single list of endangered plants and a single list of threatened plants

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) 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.

Commission Agenda Item No. 2
Exhibit C

COMMERCIAL NONGAME PERMIT RULES
PROPOSAL PREAMBLE

1. Introduction.

            The Texas Parks and Wildlife Department proposes an amendment to §65.331, concerning Commercial Activity. The proposed amendment would prohibit commercial activity involving six species of reptiles.

            Under Parks and Wildlife Code, Chapter 67, “nongame wildlife” is defined as those species of vertebrate and invertebrate wildlife indigenous to Texas that are not classified as game animals, game birds, game fish, fur-bearing animals, endangered species, alligators, marine penaeid shrimp, or oysters. Chapter 67 requires the commission to “establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.” In another rulemaking published elsewhere in this issue of this issue of the Texas Register, the department proposes to remove six species of reptiles from the list of state-threatened species. The department has determined, based on biological parameters, that although the species being removed from the threatened list are no longer believed to be in danger of statewide extinction, their population status remains such that protection from commercial exploitation is warranted.

Nongame species comprise over 90 percent of the wildlife species that occur in Texas. Although the department is unable to monitor, survey, or conduct research on every nongame species in Texas, ongoing research is both conducted and monitored by the department.

Nongame wildlife populations are problematic by their very nature, due to their numbers, diversity, and relative obscurity compared to game species. Historically, the most intensive management and research activities in the United States and Texas have been focused on game species popular with sport hunters, such as deer, turkey, pronghorn antelope, and others. However, game species represent a small fraction of the overall number of species in any ecosystem; in Texas, eight species of wildlife are designated by statute as game animals, whereas there are approximately 1,100 species of nongame vertebrate wildlife. Because the number of nongame species dwarfs the number of game species, nongame species are a much more problematic management target within the traditional contexts. Management of game species typically involves intensive population, habitat, and harvest investigations. However, because of staffing and budgetary realities, this type of management regime is unrealistic for the many nongame species that occur in the state. One salient point firmly established by empirical evidence is that unfettered commercial exploitation of wildlife almost always results in disaster for the targeted species. In fact, the genesis of modern game species management came about as a result of unregulated commercial exploitation of wildlife resources. By the middle of the 20th century, many species of wildlife were in serious decline or in danger of extirpation in many parts of the United States and Texas as a result of unregulated, large-scale, commercial harvest. However, as a result of regulatory and management efforts, most game species are now thriving. The department’s rules governing commercial take of nongame species are intended to prevent depletion of nongame species and to allow those species to successfully perpetuate themselves.

2. Fiscal Note.

        Meredith Longoria, Nongame and Rare Species Program Leader, 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 administering or enforcing the rules.

3. Public Benefit/Cost Note.

        Mrs. Longoria also has determined that for each of the first five years that the 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 and conservation of publicly-owned nongame wildlife resources and the protection of native ecosystems from harmful alterations caused by overharvest of nongame species, which will be beneficial to all other organisms in the complex ecological systems associated with nongame wildlife.

            (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impacts to small businesses, micro-businesses, or rural communities. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. There will be no adverse economic effects on small businesses, microbusinesses, and persons required to comply with the amendment as proposed, and no adverse economic impacts on rural communities.

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

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

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

        (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) not create a new regulation;

                 (6) not limit or repeal an existing regulation but will expand a current regulation (by adding six species of reptiles to the list of species for which commercial activity is prohibited);

                 (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.