TPWD: Wednesday, 9:30 a.m., May 20, 2020 Commission Meeting Agenda

May 20-21, 2020, Commission Meeting Agenda

Work Session

Commission Agenda Items

January 22-23, 2020, Transcripts

Work Session

Wednesday, May 20, 2020
9:30 a.m.

Texas Parks and Wildlife Department
Live audio and by teleconferencing

S. Reed Morian, Commission Chair
Carter Smith, Executive Director

Approval of the Previous Minutes from the Commission Work Session held January 22, 2020

Land and Water Plan

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
- Coronavirus Disease (COVID-19): Texas Parks and Wildlife Department Response and Preparations
- Sunset Update
- Rule Review – Beginning Rule Review
  - Chapter 51 – Executive
  - Chapter 52 – Stocking Policy
  - Chapter 55 – Law Enforcement
  - Chapter 60 – Maintenance Reviews
  - Chapter 61 – Design and Construction

Financial

Financial Overview – Mike Jensen
- Strategic Plan Update – Michael Goldsmith
Internal Audit Update – Brandy Meeks
Designation of Nonprofit Organization for the Help Feed Hungry Texans Program – Justin Halvorsen (Action Item No. 2)

Natural Resources

2020-2021 Statewide Recreational and Commercial Fishing Proclamations – Recommended Adoption of Proposed Changes – Ken Kurzawski, Dakus Geeslin (Action Item No. 3)
2020-2021 Statewide Hunting and Migratory Game Bird Proclamations – Recommended Adoption of Proposed Changes – Shawn Gray, Shaun Oldenburger (Action Item No. 4)
Public Hunting Program – Establishment of an Open Season on Public Hunting Lands and Approval of Public Hunting Activities on State Parks – Justin Dreibelbis (Action Item No. 5)
Chronic Wasting Disease Detection and Response Rules – Containment and Surveillance Zone Boundaries – Recommended Adoption of Proposed Changes – Mitch Lockwood (Action Item No. 6)
Alligator Rules - Proposed Amendments to the Alligator Proclamation and the Statewide Hunting Proclamation - Recommended Adoption of Proposed Changes – Jonathan Warner (Action Item No. 7)
Oyster Mariculture Rules – Recommended Adoption of Proposed Rules – Lance Robinson (Action Item No. 8)
Wildlife Rehabilitation Permits Rules – Request Permission to Publish Proposed Changes in the Texas Register – Meredith Longoria

Law Enforcement

Possession of Resident Licenses Rules – Request Permission to Publish Proposed Changes in the Texas Register – Stormy King
Civil Restitution Rules – Request Permission to Publish Proposed Changes in the Texas Register – Kevin Davis

Executive Office

Accessibility Advisory Committee and Urban Outreach Advisory Committee Formation Rules – Recommended Adoption of Proposed Rules – David Buggs (Action Item No. 9)
Temporary Commission Meeting Policy Regarding Meeting Procedures – Robert Sweeney (Action Item No. 1)

Land Conservation

Disposition of Land – Blanco County – Approximately 3.5 Acres at Blanco State Park – Trey Vick (Action Item No. 10)
Grant of Pipeline Easements – Brazoria County – Approximately 30 Acres at the Justin Hurst Wildlife Management Area – Request Permission to Begin the Public Notice and Input Process – Ted Hollingsworth (Work Session and Executive Session)
Grant of Pipeline Easement – Brazoria County – Approximately 6 Acres at the Justin Hurst Wildlife Management Area – Request Permission to Begin the Public Notice and Input Process – Ted Hollingsworth (Work Session and Executive Session)
Cameron County Conservation Strategy – Ted Hollingsworth (Executive Session Only)
Boundary Issues – Marion County – Caddo Lake Wildlife Management Area – Ted Hollingsworth (Executive Session Only)

Executive Session

Litigation Update – Robert Sweeney (Executive Session Only)
- Oysters
- Chronic Wasting Disease
- Bastrop Fires

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 20, 2020

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:

Practice, Encourage, and Enable Science-Based Stewardship of Natural and Cultural Resources

Increase Access to and Participation in the Outdoors

Educate, Inform, and Engage Texas Citizens in Support of Conservation and Recreation

Employ Efficient, Sustainable, and Sound Business Practices

Work Session Item No. 2
Presenter: Mike Jensen

Work Session
Financial Overview
Strategic Plan Update
May 20, 2020

I. Executive Summary: The staff will present a financial overview of the Texas Parks and Wildlife Department (TPWD) and summarize the development of TPWD Legislative Strategic Plan for the Fiscal Years (FY) 2021-2025.

II. Discussion: Staff will update the Texas Parks and Wildlife Commission on state park, boat registration/titling, and license fee revenues collected by TPWD for FY 2020 and will summarize recent budget adjustments for FY 2020. Additionally, staff will summarize the status of updates to the TPWD Legislative Strategic Plan, internally titled the TPWD Natural Agenda for state FY 2021 to 2025 as prescribed by the Legislative Budget Board and the Governor’s Office.

Work Session Item No. 3
Presenter: Brandy Meeks

Work Session
Internal Audit Update
May 20, 2020

I. Executive Summary: The staff will present an update on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 2019 and FY 2020 Internal Audit Plans and ongoing or completed external audits.

II. Discussion: The staff will provide an update on the TPWD FY 2019 and FY 2020 Internal Audit Plans, as well as a briefing of any external audits that have been recently completed or are ongoing.

Work Session Item No. 11
Presenter: Meredith Longoria

Work Session
Wildlife Rehabilitation Permit Rules
Request Permission to Publish Proposed Changes in the Texas Register
May 20, 2020

I. Executive Summary: With this item, the staff seeks permission to publish proposed amendments to rules governing wildlife rehabilitation in the Texas Register. The proposed amendments would function collectively to address issues and concerns relating generally to wildlife disease control and response and specifically to the detection and management of Chronic Wasting Disease (CWD), including:

Registration of rehabilitation facilities;
Elimination of the use of unpermitted volunteers;
Electronic reporting requirements;
Daily log requirement;
Veterinary certification for retention of non-releasable wildlife;
Deer identification, tagging, reporting, facility, and release requirements;
Landfill disposal of wildlife mortalities; and
Housekeeping and modernization changes.

II. Discussion: Under Texas Parks and Wildlife Code chapter 43, subchapter C, the Texas Parks and Wildlife Commission (Commission) is required 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. In response to the emergence of CWD in both free-ranging and captive populations of indigenous species of deer over the last five years, the Texas Parks and Wildlife Department (TPWD) has acted to implement CWD management and control strategies by rule with respect to the movement of deer held under various TPWD permits. A major component of that strategy has been to implement regulatory identification, reporting, and record-keeping requirements to make epidemiological investigations easier, more efficient, and more productive. As part of this continuing effort, TPWD has identified wildlife rehabilitation activities involving deer as an area of concern. The proposed amendments therefore contain specific provisions regarding facility and testing requirements for deer. Because it is obvious that the possibility that disease outbreaks in indigenous wildlife could pose a threat to other indigenous wildlife, livestock, and human health and safety, TPWD has determined that it is both prudent and necessary to amend the rules governing wildlife rehabilitation to put a number of proactive measures in place to address that possibility and facilitate management and control activities should such a situation arise in the future.

Attachment – 1

Exhibit A – Proposed Rules

Work Session Item No. 11
Exhibit A

WILDLIFE REHABILITATION PERMIT RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department (the department) proposes amendments to §§69.43 – 69.52, concerning Wildlife Rehabilitation Permits. The proposed amendments would function, collectively, to address issues and concerns relating generally to wildlife disease control and response, and specifically to the detection and management of chronic wasting disease (CWD), a fatal neurodegenerative disease that is fatal to white-tailed and mule deer, which has been confirmed in multiple locations in this state in both captive and free-ranging herds. Additionally, the proposed amendments would effect housekeeping-type changes to standardize and modernize the rules, the majority of which were last amended in 1997.

In response to the emergence of CWD in both free-ranging and captive populations of indigenous species of deer over the last five years, the department has acted to implement CWD management and control strategies by rule with respect to the movement of deer held under various department permits. A major component of that strategy has been to implement regulatory identification, reporting, and recordkeeping requirements to make epidemiological investigations easier, more efficient, and more productive. As part of this continuing effort, the department has identified wildlife rehabilitation activities involving deer as an area of concern. The proposed amendments therefore contain specific provisions regarding facility and testing requirements for deer. Further informing this rulemaking is the impact and causality of the SARS-CoV-2 (COVID-19) pandemic, which has introduced additional dimensions of concern, since it originated as a wildlife disease before jumping to human populations. Because it is obvious that the possibility that disease outbreaks in indigenous wildlife could pose a threat to other indigenous wildlife, livestock, and human health and safety, the department has determined that it is both prudent and necessary to amend the rules governing wildlife rehabilitation to put a number of proactive measures in place to address that possibility and facilitate management and control activities should such a situation arise in the future, including provisions to reduce the number of unpermitted individuals that are allowed to engage in permitted activities, to identify the specific facilities and places where permitted activities take place, the initiation of electronic reporting requirements (including a daily log), requirements regarding the release, retention, and disposition of rehabilitated wildlife, the use of regulated medications and biologicals, improvements to training and certification standards, and transfer of wildlife to other rehabilitators. The proposed amendments make several repetitive, nonsubstantive changes throughout the rulemaking, such as replacing “permit holder” with “permittee,” “rehabilitation” with “activities authorized under a permit issued under this subchapter,” and so forth.

The proposed amendment to §69.43, concerning Definitions, would alter the definition for “subpermittee” and eliminate the definitions of “release to the wild, ““supervisory responsibility,” “transportation,” and “volunteer.” The definition of “release to the wild” is superfluous, since the common and ordinary meaning of “release” is sufficient for the purpose of the rules and the various provisions of the subchapter prescribe the conditions and requirements for the release of rehabilitated protected wildlife. The definitions of “supervisory responsibility” and “volunteer” are being eliminated because the department has determined that because it is no longer appropriate to allow unpermitted persons other than subpermittees (volunteers) named on a permit to conduct activities under a permit, those definitions are therefore superfluous. The definition of “transportation” is being eliminated because the department has determined that the plain and ordinary meaning of the word is sufficient for the purposes of the rules. The definition of “subpermittee” is being altered to eliminate references to supervisory responsibility, which is necessary because the proposed amendments would eliminate volunteers as a category of persons lawfully allowed to conduct permitted activities. Finally, the term “wildlife” would be defined as “protected wildlife” for purposes of consistency. Parks and Wildlife Code, Chapter 43, Subchapter C defines and employs the term “protected wildlife,” while the rules use the terms “wildlife” and “protected wildlife” interchangeably. The change is intended to eliminate confusion.

Under Parks and Wildlife Code, Chapter 43, Subchapter C, no person may collect, hold, possess, display, transport, release, or propagate protected wildlife for the purposes of rehabilitation without a permit issued by the department.

The amendment to §69.44, concerning General Provisions, would consist of several actions. The proposed amendment would alter subsection (a) to require facilities where rehabilitation activities take place to be registered with the department via an electronic application provided by the department for that purpose. One of the critical components of effective disease outbreak response is to be able to quickly perform contact tracing, or the identification of the specific places that specific animals may have come into contact with other animals or people. In concert with other provisions of this rulemaking that eliminate the use of unnamed volunteers, restrict rehabilitation activities to permittees and subpermittees at registered facilities, and require the maintenance of a daily log, the registration of the facilities, permittees, and subpermittees would allow the department to maintain a real-time inventory of persons, places, and animals, which would eliminate both the impediment of incomplete data (because there is no daily reporting requirement under the current rules) and the burden of a time-consuming manual review of paper documentation in the event of the need for contact tracing. This approach has been proven to be quite effective in the efforts to manage the spread of CWD from and between deer breeding facilities.

Under current rules a permittee may designate subpermittees and allow subpermittees to supervise rehabilitation activities by unnamed volunteers at multiple locations unknown to the department. The provisions are almost 30 years old and exist because wildlife rehabilitation cannot be done for profit and the department sought to allow rehabilitators latitude in obtaining and utilizing human resources for the benefit of wildlife. What has developed over time is a proliferation of unnamed volunteers scattered across the state in unknown locations. In light of current events, this is extremely problematic from a disease management perspective, for a variety of reasons. When a disease outbreak occurs, it is important to quickly identify the origin of the outbreak, or “index case.” From that point the movement of animals and people into and away from the index case (traceback and trace forward) must be identified. When there is no chain of documentation to follow, disease response and management is hampered if not stymied. The proposed amendment to §69.44(b) would eliminate the use of volunteers and require all subpermittees to conduct activities at a registered facility. In concert with proposed reporting and recordkeeping requirements, this would allow the department in a disease emergency to quickly identify the people, places, and animals that have come into contact with each other.

The proposed amendment to §69.44(c) would make nonsubstantive changes to references.

The proposed amendment to §69.44(d) would prohibit the commingling of domestic pets, livestock, exotic livestock, exotic fowl, or non-indigenous wildlife with animals being rehabilitated, which is necessary ensure that wildlife is not able to transmit disease to or acquire disease from external sources.

The proposed amendments to §69.44(e) – (g) would make nonsubstantive changes to improve accuracy and clarity.

The proposed amendment to §69.44(h) makes nonsubstantive changes and prohibits the conduct of rehabilitation activities on the same property as a deer breeding facility, which is already a provision of the rules under current subsection (d) but is being stated explicitly for purposes of clarity to emphasize the necessity of preventing the accidental spread of disease to confined populations.

The proposed amendment to §69.44(i) would make nonsubstantive changes and create a new requirement that requests to retain non-releasable wildlife (wildlife that cannot survive on their own) be accompanied by a statement from veterinarian that the animal cannot be released and the reasons why. The proposed new provisions also would stipulate that the department will not authorize the retention of an animal that because of a disease or condition poses a danger to humans, other animals, or itself. The department is increasingly confronted with requests to retain wildlife, many of which should be euthanized for various reasons, and does not have the staff resources to investigate each claim that an animal is in fact not releasable; requiring a statement from a veterinarian will assist the department in evaluating each case on the actual merits of the request. The proposed amendment also would eliminate current subsection (i)(2), a grandfather clause that is no longer applicable.

The proposed amendment to §69.44 also would alter current subsection (i) to specify that all medical treatment, including vaccinations, be performed in accordance with applicable laws governing the extra-label use of medications and biologicals. Veterinarians may prescribe medications and biologicals for animal uses not addressed in the product labelling of the medication or biological; however, such usage is regulated by federal law. The proposed amendment would clarify that such regulation also applies to wildlife rehabilitation and rehabilitators.

The proposed amendment to §69.44 would alter current subsection (j) to require wildlife mortalities to be either transferred to an authorized person or disposed of in a Type 1 landfill. Current rules do not specify the destination for final disposition of mortalities that are not donated or transferred to other types of permittees for other purposes. Because diseases can be spread by incomplete or inadequate disposal techniques such as shallow interment, interment in contact with groundwater resources, partial incineration, and so forth, the department believes it is prudent to require all expired wildlife that cannot be transferred to another person permitted to receive the specimens to ensure that the animals are disposed of in a manner that prevents or mitigates disease transmission, such as transfer to a Type I landfill. The proposed amendment would also require deer mortalities older than six months of age to be tested for CWD, for reasons discussed in other parts of this preamble regarding consistency with the department’s CWD management strategy.

The proposed amendment to §69.44 would add new subsection (k), which would require all permittees who rehabilitate deer to attach permanent identification to each deer, notify the department of each deer mortality within 24 hours of discovery, and effect the release of rehabilitated deer via the same mechanism used by deer breeders for releases. As noted previously in this preamble, CWD has been detected in multiple deer breeding facilities and the department sees no reason not to include rehabilitated deer in the implementation of current CWD management protocols. Permanent identification, immediate reporting and testing of mortalities, and the reporting and tracking of deer transfers are all critical components of epidemiological efficacy of department actions to manage CWD.

Finally, the proposed amendment would add new subsection (p) to provide that the department may designate a manual process in lieu of any electronic application requirement of the subchapter if for whatever reason the electronic application is unavailable. The department recognizes that there may be circumstances under which technological systems may be unavailable and believes it is prudent to provide for an alternative method of compliance by permittees.

The proposed amendment to §69.45, concerning Permit Required, would prohibit the rehabilitation of any wildlife by persons other than permitted wildlife rehabilitators. The current rules reflect an outdated view of wildlife that privileges certain species as being inherently more valuable than other species; however, all wildlife resources are critical components of functioning ecosystems, as well as being the property of the people of the state, and the department has determined that as such, medical treatment of that wildlife should not be attempted by or entrusted to persons who do not possess adequate training, guidance, or regulatory oversight to do so. The department notes that this provision does not affect any person’s legal ability, in accordance with existing rules, to possess nongame species that are not injured or sick. The proposed amendment also would eliminate a reference to a permittee’s choice of consulting veterinarian and includes various nonsubstantive alterations and conforming changes necessitated by amendments to other sections.

The proposed amendment to §69.46, concerning Application for Permit, would incorporate provisions from current §69.47 concerning Qualifications, with modifications. Under current rules, the qualifications for applicants are enumerated in two sections (§69.46 and §69.47) and state that wildlife rehabilitation permits may be issued only to qualified individuals who are at least 18 years of age, provide letters of recommendation from two persons who are conservation scientists or game wardens currently employed by the department, licensed veterinarians, or permitted wildlife rehabilitators who have known the applicant for at least two years, and one of the following: completion of a training course offered by the International Wildlife Rehabilitation Coalition or the National Wildlife Rehabilitator’s Association within the preceding three years; attendance at a national wildlife rehabilitation conference within the preceding three years; membership in a state or national wildlife rehabilitation organization; or a test score of 80 or above on a department-administered wildlife rehabilitation examination. The proposed amendment would place all provisions governing permit application and qualifications in a single section, with modifications. The proposed amendment would retain the minimum age requirement and require applicants to have completed a training course offered by the International Wildlife Rehabilitation Coalition or the National Wildlife Rehabilitator’s Association, but would eliminate the provisions allowing attendance at a national wildlife rehabilitation conference within the preceding three years or membership in a state or national wildlife rehabilitation organization to be options for initial permit issuance in lieu of the required training (they would, however, be acceptable for permit renewal). The department has concluded, in light of recent developments concerning wildlife diseases, that it is appropriate to professionalize the requirements for issuance of wildlife rehabilitation permits; therefore, the proposed amendment would require certification for initial permit issuance and allow continuing education activities to be considered for permit renewals. The proposed amendment also would replace the current standard of an 80 percent grade on a department test with a 100% standard. The department believes that permittees should know the rules governing wildlife rehabilitation and the rudiments of the activity, and further notes that applicants make take the test as many times as necessary to achieve a passing score.

The amendment to §69.47, concerning Qualifications, would retitle the section as Refusal of Permit Issuance or Renewal; Review, which is necessary to make the title germane to the contents of the section. As noted previously in this preamble, the proposed amendment would remove the contents of current subsection (a) and relocate them, with modifications, to §69.46, concerning Application for Permit. The proposed amendment also would correct an erroneous reference to Parks and Wildlife Code, Chapter 88, replacing it with a reference to Chapter 43. Chapter 88 governs endangered, threatened, and protected native plants.

The amendment to §69.49, concerning General Facilities Standards, would establish specific facility requirements for the rehabilitation of deer. As noted earlier in this preamble, CWD is a fatal neurological disease that affects and is transmissible by white-tailed and mule deer, among other species. Other department regulations governing the holding of deer in captivity and the human-caused movement of deer under department permits stipulate that deer held in captivity must be kept in enclosures that prevent both escape and contact with other susceptible species. The department believes it is prudent to impose this standard on deer being rehabilitated as well.

The amendment to §69.50, concerning Transfers, would make nonsubstantive changes and prohibit the transfer of deer to rehabilitators in other states. The interstate movement of CWD susceptible species is highly regulated at the federal and state levels, and the department sees no value in allowing deer to be transferred to other states.

The amendment to §69.51, concerning Release of Rehabilitated Wildlife, would make nonsubstantive changes, clarify that causing or allowing the release of wildlife is considered by the department to be the same thing as personally acting to release wildlife, impose requirements for sites where deer are released after rehabilitation, and clarify that the rules governing release of rehabilitated wildlife do not supersede applicable provisions of local, state, or federal law. The current rule prohibits a permittee from releasing wildlife likely to become a nuisance, a disease threat, or a depredation threat. Although a permittee is ultimately responsible for the disposition of all wildlife in possession, the department would like to clarify that release provisions are not limited to the personal actions of a permittee, but to any actions by any person under or at the direction of the permittee. As discussed elsewhere in this preamble, the department is concerned and has acted to impose a disease management strategy to prevent the spread of CWD in deer populations. The proposed amendment would apply the strategy to rehabilitated deer, specifying release site fencing requirements necessary to prevent escape of deer, the registration of the release site with the department, and the written agreement of the owner of the release site to maintain the fencing, all which are necessary to provide the minimum assurance that released deer do not contract or spread CWD through contact with free-ranging deer. Finally, the proposed amendment would clarify that no provision of the section absolves any person from the requirements of applicable local, state, or federal law. Other governmental entities have various legal authorities to regulate the possession and movement of different animals, such as the Department of State Health Services with respect to rabies control, the Animal Health Commission for various communicable livestock diseases, and so forth. The department wishes to be abundantly clear that a rehabilitation permit does not waive any person’s legal obligation to comply with such laws, when applicable.

The amendment to §69.52, concerning Reports, would retitle the section as “Reports and Recordkeeping” to make the title of the section more accurate and add new subsection (a) to create a daily log requirement. In concert with other provisions of this rulemaking that eliminate the use of unnamed volunteers and restrict rehabilitation activities to permittees and subpermittees at registered facilities, the daily log would allow the department to maintain a real-time inventory of persons, places, and animals that have come into contact, which eliminates both the impediment of incomplete data (because there is no daily reporting requirement under the current rules) and the burden of a time-consuming manual review of paper documentation in the event of the need for contact tracing. This approach has been proven to be quite effective in the efforts to manage the spread of CWD from and between deer breeding facilities, and the department sees no reason not to require wildlife rehabilitators to follow the same sort of regimen.

2. Fiscal Note.

Meredith Longoria, Endangered and Rare Species Program Leader for the Wildlife Division, has determined that for each of the first five years that the rules are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules, because the rules will be administered and enforced by existing personnel using existing systems, equipment, and budget.

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 rule as proposed will be the implementation of rules that will increase the biosecurity of wildlife rehabilitation activities in the state, thereby protecting native wildlife populations and natural systems, as well as having the benefit of protecting human and livestock health and safety.

There will be adverse economic effects on persons required to comply with the rules as proposed. The proposed amendments would require permittees to obtain a statement from a veterinarian attesting the fact and conditions supporting a determination that a rehabilitated animal is non-releasable. The department believes that most veterinarians who have an existing relationship with a rehabilitator will probably perform this function as part of the existing relationship; however, it is also possible that a veterinarian would charge a fee similar to that for an office visit, which the department estimates at $30 — $70. Additionally, the proposed amendments would require deer accepted for rehabilitation to be identified by attaching an RFID tag and a bangle tag, which the department estimates to be less than $10 per animal. Finally, the proposed amendment would require expired wildlife under certain circumstances to be disposed of in Class I landfill. The department has determined that fees for acceptance of dead animals vary widely across the state, but estimates the probable cost per animal $20 — $100, depending on the size of the animal.

(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, and 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 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 no small businesses, microbusiness, or rural communities will be affected by the proposed rules, because it is unlawful to conduct wildlife rehabilitation on a for-profit or commercial basis in this state. 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) not create 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 (requirement for electronic reporting, daily log, deer identification, landfill disposal of expired wildlife, veterinary certification of non-releasability of rehabilitated wildlife);

(6) expand existing regulations but will not otherwise repeal or limit 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 proposal may be submitted to Meredith Longoria (512) 389-4410, e-mail: meredith.longoria@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §43.022, 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 and authorizes the department to issue a permit to a qualified person to collect, hold, possess, display, transport, release, or propagate protected wildlife for scientific research, educational display, zoological collection, or rehabilitation.

The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapter C.

6. Rule Text.

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

(1) Education — Activities that encourage management and conservation of wildlife resources or which are intended to increase the public’s awareness and understanding of aspects of wildlife biology.

(2) Fostering — Using a captive animal to rear young animals of the same species.

(3) Holding — Retaining in captivity.

(4) Human imprinting or human bonding — A dependency or fixation upon humans as parent substitutes or companions.

(5) Non-releasable animal — An animal which, after rehabilitation, is determined by the department to be unlikely to survive in the wild if released.

(6) Propagate — To allow animals to produce offspring.

(7) Rehabilitation — The temporary caring for injured, orphaned, or sick wildlife until such animals can be released to the wild.

[(8) Release to the wild — Release of wildlife to an area where it is capable of leaving at will.]

(8)[(9)] Socialize — Using a captive animal to teach wild behaviors to juvenile animals of the same species.

(9)[(10)] Subpermittee — A person authorized by a permittee[permit] to conduct activities governed by this subchapter[only while under the supervisory responsibility of a permit holder].

(10) Wildlife—Protected wildlife, as defined by Parks and Wildlife Code, Chapter 43, Subchapter C.

[(11) Supervisory responsibility — The responsibility that a permit holder has to direct the actions of an individual under his or her control, and for which that supervisor accepted legal responsibility.]

[(12) Transportation — The transfer of captive protected wildlife from one permit holder to another, from an out-of-state source to an in-state permit holder, from an in-state permit holder to an out-of-state destination, from site of legal capture to holding, or to site of final disposition.]

[(13) Volunteer — An individual who works with permitted wildlife in the presence of the permit holder or subpermittee.]

§69.44. General Provisions.

(a) Activities authorized by a permit issued under this section shall be conducted[made] only by the permittee and/or subpermittees[permittee(s) or subpermittee(s)] named on the permit and only at a rehabilitation facility registered with the department via an electronic application designated by the department for that purpose, except for those activities necessary to retrieve, stabilize, and transport wildlife to a registered rehabilitation facility for further evaluation and treatment.

(b) A subpermittee shall conduct activities governed under a permit issued under this subchapter only at a rehabilitation facility registered with the department unless under the direct supervision of the permittee.[Volunteers may assist in these activities, but only when in the presence of a permittee or subpermittee. A permittee utilizing volunteers shall keep on file at the permitted facility a signed and dated affidavit authorizing the status of each volunteer.]

(c)[(b)] Wildlife[Protected wildlife] held under the authority of a [rehabilitation] permit issued under this subchaptermay not be sold, bartered, or exchanged for any consideration. A permit issued under this subchapter[section] shall not authorize a person, firm, or corporation to engage in the propagation or commercial sale of [protected] wildlife.

(d) Wildlife held under the authority of a permit issued under this subchapter shall not be commingled with domestic pets, livestock, exotic livestock, exotic fowl, or non-indigenous wildlife.

(e)[(c)] A permittee[permit holder] shall conduct rehabilitation in an environment which minimizes human contact and prevents human and domestic animal imprinting or bonding.

(f)[(d)] Except for permitted educational purposes, wildlife possessed under a rehabilitation[the] permit shall not come in contact with anyone other than the permittee and/or subpermittees[permit holder, subpermittees, volunteers,] licensed veterinarians or the staff of licensed veterinarians.

(g)[(e)] A permittee[permit holder] shall not allow the viewing, exhibit, or display to the public of animals possessedunder a rehabilitation permit unless specifically authorized by permit provision.

(h)[(f)] A permittee[permit holder] shall not conduct activities governed under this subchapter[rehabilitation] on the same property as a fur-bearing animal propagation facility or deer breeding facility unless specifically authorized in writing by the department. [This restriction may be waived by the department on a case-by-case basis.]

(i)[(g)] Non-releasable [protected] wildlife shall be euthanized except as provided by this subsection[unless the permittee meets the criteria established in paragraph (1) or (2) of this subsection for the retention of nonreleasable wildlife].

(1) Permission to retain non-releasable wildlife may be granted only to permittees[rehabilitators] who have at least three years’ experience as a permitted wildlife rehabilitator.

(2)[(1)] The department may permit the retention of non-releasable [nonreleasable] wildlife for approved educational, fostering, or socialization purposes, or for transfer to zoological, scientific, or educational permittees[permit holders]. Requests must be made in writing to the department and no transfer shall take place until the department has approved the request. A request to retain non-releasable wildlife under this subsection shall include a statement from a licensed veterinarian that the animal is non-releasable and the reasons why the animal is non-releasable. The department will not authorize the retention of an animal that because of a disease or condition poses a danger to humans, other animals, or itself.

[(2) Prior to December 31, 1997, the department may grant on a case-by-case basis, via letter of authorization, permission for permitted rehabilitators to retain nonreleasable wildlife.]

(j)[(h)] Permittees[Permit holders] possessing non-releasable raptors shall band the raptors with markers supplied by the department.

(k) All white-tailed or mule deer received by a permittee shall immediately be identified by the attachment to the pinna of either ear of:

(1) a Radio Frequency Identification Device (RFID) button tag approved by the department.; and

(2) a “dangle” type tag bearing the unique identifier assigned to the deer by the department.

(3) The RFID tag required by this subsection must have an associated 15-digit animal identification number conforming to the 840 standards of the United States Department of Agriculture, which number shall be reported to the department via an electronic application designated by the department for that purpose within 24 hours of the tag being applied to the deer.

(4) The removal of a tag required by this subsection from a living white-tailed or mule deer is prohibited.

(5) A permittee shall report the mortality of any white-tailed or mule deer to the department within 24 hours of discovery via the electronic application specified by the department for that purpose.

(6) A transfer permit must be activated as prescribed by the department prior to the transfer of any white-tailed or mule deer from a wildlife rehabilitation facility. Not later than 48 hours following the completion of all activities authorized under a transfer permit, the permit shall be completed as prescribed by the department.

(l)[(i)] All medical treatment, including vaccinations, shall be performed in consultation with a licensed veterinarian and in accordance with all applicable laws regarding extra-label use of medications and biologicals.

(m)[(j)] Euthanized wildlife and wildlife that has died while under the care of a permittee shall be transferred within 72 hours to a person authorized by law to receive such wildlife or disposed of in a Type 1 landfill[may be retained by the permittee or transferred to another permitted wildlife rehabilitator]. White-tailed and mule deer mortalities in individuals older than six months of age shall be tested for chronic wasting disease in accordance with the applicable provisions of §65.92 of this title (relating to CWD Testing).

(n)[(k)] This subchapter does not apply to department personnel, or transport by animal control officers[,] or peace officers in the performance of official duties.

(o)[(l)] The department may temporarily waive any provision of this subchapter during a wildlife health crisis.

(p) The department may designate a manual process in lieu of any electronic application requirement of this subchapter if for whatever reason the electronic application is unavailable.

§69.45. Permit Required.

(a) No person may possess wildlife for purposes of rehabilitation unless the person possesses a valid permit issued under the provisions of this subchapter.[No permit is required to rehabilitate nongame species for which there is no open season or possession limit, or for which there are no provisions by rule or statute that would otherwise restrict possession.]

(b) Except as otherwise provided under Chapter 65, Subchapter B, of this title (relating to Disease Detection and Response), licensed[Licensed] veterinarians may hold, possess, and transport [protected] wildlife to provide emergency medical care or stabilization care for periods of up to 48 hours, after which time the wildlife must be transferred to a permitted rehabilitator.

[(c) Subpermittees may possess protected wildlife for rehabilitation purposes provided they have in their possession a copy of the valid permit naming them as a subpermittee.]

(c)[(d)]No permittee shall change facility location or[, consulting veterinarian, or subpermittees], receive unauthorized species, or conduct unauthorized activities unless the permittee possesses an amended permit authorizing such activity.

(d)[(e)] Permits issued under this section may be issued for any period of time not exceeding three years from the date of issuance.

§69.46. Application for Permit.

(a) An applicant for a permit under this subchapter must be at least 18 years of age.

(b)[(a)]Applications shall be made on forms supplied or approved by the department[, and shall be submitted with the letters of recommendation required by §69.47 of this title (relating to Qualifications)]. Incomplete applications will not be processed.

(c)[(b)] Applications must be accompanied by [evidence of one the following]:

(1) a copy of the certificate of completion of a training course offered by the International Wildlife Rehabilitation Coalition or the National Wildlife Rehabilitator’s Association within the preceding three years;

(2) a letter of recommendation from a licensed veterinarian and/or permitted wildlife rehabilitator with at least three years’ experience as a permitted wildlife rehabilitator who has known the applicant for at least two years; and[attendance at a national wildlife rehabilitation conference within the preceding three years;]

[(3) membership in a state or national wildlife rehabilitation organization; or]

(3)[(4)] a test score of 100[80 or above] on a department-administered wildlife rehabilitation examination.

(d)[(c)] Permits for the taking or holding of federally protected species shall not be valid unless the permittee[permit holder] also possesses a valid federal permit authorizing possession of those species.

(e)[(d)] Except for persons authorized to do so under the terms of[holders of] zoological permits, no person holding a permit authorizing the propagation for sale of [protected] wildlife shall be authorized to rehabilitate those species.

§69.47. Refusal of Permit Issuance or Renewal; Review[Qualifications].

[(a) Wildlife rehabilitation permits may be issued only to qualified individuals who:]

[(1) are 18 years of age or older; and]

[(2) have letters of recommendation from two persons who have known the applicant for at least two years. The letters of recommendation must be from:]

[(A) conservation scientists or game wardens currently employed by the department;]

[(B) licensed veterinarians; or]

[(C) permitted wildlife rehabilitators.]

[(b) Evidence of certification by the International Wildlife Rehabilitation Coalition or the National Wildlife Rehabilitator’s Association can be substituted for one of the required letters of recommendation.]

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

(1) Parks and Wildlife Code, Chapter 43[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).

(b)[(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 (a)[(c)] of this section.

(c)[(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.

(d)[(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.

(e)[(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).

(f)[(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.

§69.48. Permit Renewals.

(a) Renewal applications shall be made on a form provided by the department and shall be submitted with the annual report required by §69.52 of this title (relating to Reports) by no later than January 15 of each year.

(b) Renewal applications shall not be processed until the department has received all reports required by §69.52 of this title [(relating to Reports)] accompanied by evidence of at least one of the following:

(1) completion of a training course offered by the International Wildlife Rehabilitation Coalition or the National Wildlife Rehabilitator’s Association within the preceding three years;

(2) a current Wildlife Rehabilitator Certification provided by International Wildlife Rehabilitation Coalition; or

(3) attendance at a national wildlife rehabilitators conference within the preceding three years.

(c) The department may deny a renewal as provided in §69.47 of this title (relating to Refusal of Permit Issuance or Renewal; Review [if the permittee has violated any of the provisions of the permit, regulations of the department, or federal or state wildlife laws].

§69.49. General Facilities Standards.

(a) All facilities shall be subject to inspections by the department. A first-time applicant’s facilities shall be inspected by the department and no permit shall be issued until the facilities are determined to satisfy all of the applicable facilities standards of this subchapter.

(1) The department may specify individual caging requirements on a case-by-case basis.

(2) Clean water shall be available at all times except where medical circumstances require the temporary denial of water.

(3) Feces and waste materials shall be removed on a daily basis except for species which normally re-ingest fecal material.

(4) Cages shall be cleaned and disinfected using non-irritating methods.

(5) A person authorized by permit shall observe and provide care for wildlife at least once daily unless otherwise specified by the permit.

(b) White-tailed deer and mule deer held under a permit issued under this subchapter shall be confined at all times within a department-approved enclosure (indoor, outdoor, or both) that is constructed in such a fashion as to prevent both escape and contact with other deer or susceptible species as defined in Chapter 65, Subchapter B, of this title (relating to Disease Detection and Response). The department will not authorize the rehabilitation of deer by a permittee if the permittee’s facility is not in compliance with this subsection.

§69.50. Transfers.

(a) Except as provided by federal law, Chapter 65, Subchapter B, of this title, or a provision of state law, a[A wildlife rehabilitation] permit issued under this subchapter authorizes the permittee[permit holder] to transfer wildlife to:

(1) other wildlife rehabilitators legally permitted to hold that species in Texas[.]; or

(2) [Wildlife rehabilitators may transfer lawfully held live] wildlife [to] rehabilitators permitted in other states, provided a letter of authorization from the department has been obtained prior to the transfer.

(b) The transfer to or receipt of deer from another state is prohibited.

§69.51. Release of Rehabilitated Wildlife.

(a) A permittee shall release all wildlife capable of surviving in the wild in accordance with the provisions of this section, unless specifically authorized in writing by the department to do otherwise.

(b) A permittee[permit holder] shall not release, or cause or allow the release of wildlife in such a manner or at such a location so that the released animals are likely to become a nuisance, a disease threat or a depredation threat.

(c) Except as provided by subsection (e) of this section,[Wildlife] releases shall not be made in or to fenced or enclosed areas that prevent the animal from leaving at will.

(d) Wildlife[Protected wildlife] shall be released only to habitat appropriate for the species.

(e) No person may release or allow the release of white-tailed deer or mule deer held under the provisions of this subchapter unless:

(1) the deer are released within a site that is completely surrounded by a fence of at least seven feet in height and capable of retaining deer at all times under reasonable and ordinary circumstances;

(2) the owner of the release site has agreed in writing to be responsible for ensuring that the fence surrounding the release site is in compliance at all times with the provisions of paragraph (1) of this subsection; and

(3) the release site has been, prior to receiving deer under this subsection, registered with the department via an electronic application designated by the department for that purpose.

(f)[(e)] Permittees may not release wildlife on department property without the permission of the department.

(g)[(f)] A permittee commits an offense if the permittee releases or effects the release of wildlife held under the provisions of this subchapter[is] on private property without having[and fails to have] on their person the written permission of the landowner, lessee, or operator to be on that property.

(h) Nothing in this section shall be construed to exempt any person from any applicable provision of local, state, or federal law.

§69.52. Reports and Recordkeeping.

(a) Each permittee shall maintain, on a form provided or approved by the department, a daily log of all animals acquired or received for rehabilitation. The daily log shall, at a minimum, consist of the following:

(1) the species and sex of each animal acquired or received;

(2) the date and time that each animal was acquired or received;

(2) the name, address, phone number, and, if possible, an email address for each person from whom an animal is acquired or received;

(3) the approximate geographical location where each animal was found before being acquired or obtained; and

(4) the date and time of final disposition of each animal, to include method and location of disposal, for animals that are euthanized.

(b) A permittee[Permit holders] shall complete and submit an annual report on a form provided by the department. The report shall include the activities of all individuals listed on the permit.

(c)[(b)] Reports must be received by the department by January 15 of each year.

(d)[(c)] Copies of all reports shall be retained at the permitted facility and kept available for inspection by the department for a period of two years.

(e) The daily log required by this subchapter shall be retained at the permitted facility and kept available for inspection by the department for a period of two years from the last date of entry.

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. 12
Presenter: Stormy King

Work Session
Possession of Resident Licenses Rules
Request Permission to Publish Proposed Changes in the Texas Register
May 20, 2020

I. Executive Summary: With this item, the staff seeks permission to publish a proposed amendment to regulations governing the determination of residency status for purposes of obtaining hunting and fishing licenses in the Texas Register. The proposed amendment would make it an offense for a nonresident to possess a resident hunting or fishing license. The proposed amendment also would provide that a person who provides electronic proof of licensure is considered to be in possession of the license purported to be held.

II. Discussion: Under Texas Parks and Wildlife Code section 42.005, no nonresident in this state may hunt any bird or animal in this state without having acquired the appropriate license, while section 42.006 authorizes the Texas Parks and Wildlife Commission (Commission) to prescribe by rule the requirements relating to possession of a license issued under chapter 42. Similarly, Texas Parks and Wildlife Code section 46.001 provides that no person may fish in the public water of this state unless that person has obtained the appropriate fishing license, and it provides the Commission authority to prescribe by rule the requirements relating to the possession of licenses issued under the authority of chapter 46.

Although current rules at 31 Texas Administrative Code chapter 55, subchapter A, provide for the various methods by which residency in Texas may be demonstrated for purposes of purchasing a resident hunting or fishing license and provide generally for the criminal prosecution of persons who obtain a resident license unlawfully, there is no provision that makes it a specific criminal offense for a nonresident to possess a resident license (i.e., to possess a license for which the person is not eligible). The proposed amendment is intended to provide a mechanism for ensuring that only bona fide Texas residents are able to possess a resident hunting or fishing license. The proposed amendment also provides that a person who provides electronic proof of licensure is considered to be in possession of the license purported to be held.

Attachment – 1

Exhibit A – Proposed Rule

Work Session Item No. 12
Exhibit A

PROOF OF RESIDENCY RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department (the department) proposes an amendment to §55.1, concerning Proof of Residency. The proposed amendment would make it a criminal offense for a person who is not a resident of Texas to possess a license in the person’s name the purchase of which is limited to Texas residents.

Under Parks and Wildlife Code, §42.005, no nonresident in this state may hunt any bird or animal in this state without having acquired the appropriate license, while §42.006 of the code authorizes the commission to prescribe by rule the requirements relating to possession of a license issued under Chapter 42. Similarly, Parks and Wildlife Code, §46.001, provides that no person may fish in the public water of this state unless that person has obtained the appropriate fishing license and provides authority to the commission to prescribe by rule the requirements relating to the possession of licenses issued under the authority of Chapter 46.

Although current rules at 31 TAC Chapter 55, Subchapter A, provide for the various methods by which residency in Texas may be demonstrated for purposes of purchasing a resident hunting or fishing license and provide generally for the criminal prosecution of persons who obtain a resident license unlawfully, there is no provision that makes it a specific criminal offense for a nonresident to possess a resident license (i.e., to possess a license for which the person is not eligible). Texas is a member of the Interstate Wildlife Violator Compact, an interstate agreement that allows state fish and wildlife agencies to share information regarding fishing, hunting, and trapping violations for purposes of suspending or revoking license privileges of violators in member states. The department has encountered situations in which the absence of a specific violation has frustrated the department’s ability to identify unscrupulous persons who claim residency in more than one state for purposes of obtaining hunting and/or fishing licenses, which reciprocally hampers investigations in other states when the residency status of a violator claiming Texas residency cannot be definitively established for purposes of enforcement actions in the state where the violation occurred. Additionally, department law enforcement personnel have encountered situations in the field in which persons hunting or fishing under a resident license that is subsequently proven to have been obtained under false pretenses cannot be prosecuted. The proposed amendment is intended to provide a mechanism for ensuring that only bona fide Texas residents are able to possess a resident hunting or fishing license. The proposed amendment also provides that a person who provides electronic proof of licensure is considered to be in possession of the license purported to be held.

2. Fiscal Note.

Kevin Davis, Chief of Staff for the Law Enforcement Division, 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 rule.

3. Public Benefit/Cost Note.

Mr. Davis 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 ability of the department to discourage the purchase of resident hunting and fishing licenses by persons who are not Texas residents.

There will be no adverse economic effects on persons required to comply with the rule 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, and 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 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 no small businesses, microbusiness, or rural communities will be affected by the proposed rule. 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 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) not create 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 clarify an existing statutory prohibition regarding who is eligible to purchase a resident hunting or fishing license;

(6) not repeal, expand, or limit 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 proposal may be submitted to Chief Kevin Davis (512) 389-4846, e-mail: kevin.davis@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, §42.006, which authorizes the commission to prescribe by rule the requirements relating to possession of a license issued under Chapter 42, and §46.001 which authorizes the commission to prescribe by rule the requirements relating to the possession of licenses issued under the authority of Chapter 46.

The proposed repeal affects Parks and Wildlife Code, Chapters 42 and 46.

6. Rule Text.

55.1. Proof of Residency.

(a) The requirements of this section are in addition to any requirements of Parks and Wildlife Code, Chapters 42 and 46.

(1) – (8) (No change.)

(b) It is an offense for any person who does not meet the residency requirements of this section to possess a license in that person’s name that is required by law for conduct governed by Parks and Wildlife Code, Chapter 42 or Chapter 46 if the acquisition and use of the license is restricted by law to Texas residents.

(c) For purposes of this section, a person who utilizes the provisions of 53.2(g) of this title (relating to License Issuance Procedures, Fees, Possession, and Exemption Rules) to satisfy proof of licensure requirements is considered to be in possession of the license the person purports to have obtained.

This agency hereby certifies 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. 13
Presenter: Kevin Davis

Work Session
Civil Restitution Rules
Request Permission to Publish Proposed Changes in the Texas Register
May 20, 2020

I. Executive Summary: With this item, the staff seeks permission to publish proposed amendments to regulations governing the assessment of civil restitution values in the Texas Register. The proposed changes would eliminate the assessment of civil restitution for trophy specimens of certain wildlife species.

II. Discussion: Under Texas Parks and Wildlife Code section 12.301, a person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of the Texas Parks and Wildlife Code or a proclamation or regulation adopted under the Texas Parks and Wildlife Code is liable to the state for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured (commonly referred to as civil restitution).

In 1996, the Texas Parks and Wildlife Commission adopted rules providing for enhanced civil restitution values of trophy specimens of white-tailed deer, mule deer, pronghorn antelope, and desert bighorn sheep taken in violation of applicable laws, which reflected the relative rarity of such animals at that time. The Texas Parks and Wildlife Department (TPWD) has determined that the during the intervening years, techniques of wildlife management have become more effective and much more widely practiced, which, in concert with successful TPWD programs such as the Managed Lands Deer Program and other technical guidance efforts, have led not only to increased numbers of so-called “trophy” animals, but to antler and horn characteristics of individual trophy animals that are far more impressive than what has occurred in the past. Therefore, TPWD has determined that the original justification for trophy restitution no longer exists and the provisions of 31 Texas Administrative Code section 69.30 imposing civil restitution for trophy animals are no longer necessary.

Attachment – 1

Exhibit A – Proposed Rules

Work Session Item No. 13
Exhibit A

CIVIL RESTITUTION RULES – TROPHY WILDLIFE SPECIES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department (the department) proposes the repeal of §69.30, concerning Trophy Wildlife Species and an amendment to §69.20, concerning Application. The proposed repeal and amendment would function to eliminate provisions governing the imposition of enhanced civil restitution penalties for trophy specimens of white-tailed deer, mule deer, pronghorn antelope, and desert bighorn sheep taken in violation of the Texas Parks and Wildlife Code or rules of the commission.

Under Parks and Wildlife Code, §12.301, a person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of the Parks and Wildlife Code or a proclamation or regulation adopted under the Parks and Wildlife Code is liable to the state for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured. Under Parks and Wildlife Code, §12.302, the Parks and Wildlife Commission is required to adopt rules to establish guidelines for determining the value of injured or destroyed fish, shellfish, reptiles, amphibians, birds, and animals, which are located at 31 TAC Chapter 69, Subchapter B. Those values are commonly referred to as “civil restitution values.”

In 1996 the commission adopted rules providing for enhanced civil restitution values of trophy specimens of white-tailed deer, mule deer, pronghorn antelope, and desert bighorn sheep taken in violation of applicable laws, which reflected the relative rarity of such animals at that time. The department has determined that the during the intervening years, techniques of wildlife management have become more effective and much more widely practiced, which, in concert with successful department programs such as the Managed Lands Deer Program and other technical guidance efforts, have led not only to increased numbers of so-called “trophy” animals, but to antler and horn characteristics of individual trophy animals that are far more impressive than what has occurred in the past. Therefore, the department has determined that the original justification for trophy restitution no longer exists and the provisions imposing civil restitution for trophy animals are no longer necessary.

2. Fiscal Note.

Kevin Davis, Chief of Staff for the Law Enforcement Division, has determined that for each of the first five years that the rules are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules. The original purpose of the rule being repealed is to recover the replacement cost of trophy wildlife taken in violation of the law. Because the department has determined that the original reason for the rule no longer exists, the current base replacement value for each species of animal is now sufficient to satisfy the requirements.

3. Public Benefit/Cost Note.

Chief Davis 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 rule as proposed will be the elimination of unnecessary regulations.

There will be no adverse economic effects 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, and 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 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 no small businesses, microbusiness, or rural communities will be affected by the proposed rules. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

(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) not create 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) repeal an existing regulation but not expand or limit 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.

5. Statutory Authority.

The repeal is proposed under Parks and Wildlife Code, §12.302, which requires the commission to adopt rules to establish guidelines for determining the value of fish, shellfish, reptiles, amphibians, birds, and animals injured or destroyed in violation of the Parks and Wildlife Code or rules of the commission.

The proposed repeal affects Parks and Wildlife Code, Chapter 12.

§69.30. Trophy Wildlife Species.

This agency hereby certifies that the repeal 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 Parks and Wildlife Code, §12.302, which requires the commission to adopt rules to establish guidelines for determining the value of fish, shellfish, reptiles, amphibians, birds, and animals injured or destroyed in violation of the Parks and Wildlife Code or rules of the commission.

The proposed amendment affects Parks and Wildlife Code, Chapter 12.

6. Rule Text.

§69.20. Application.

(a) Rules under this subchapter establish guidelines for measuring the monetary value of each individual of any species of aquatic life or wildlife:

(1) – (2) (No change.)

(b) The values assigned to wildlife species or aquatic species, including any value added for endangered or threatened species [or trophy game animals], and values of other species not listed but derived by application of these guidelines are prima facie evidence of damages recoverable for the unlawful catching, killing, possession, injury or taking of such species.

This agency hereby certifies 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. 17
Presenter: Ted Hollingsworth

Work Session
Grant of Pipeline Easements – Brazoria County
Approximately 30 Acres at the Justin Hurst Wildlife Management Area
Request Permission to Begin the Public Notice and Input Process
May 20, 2020

I. Executive Summary: Sentinel Midstream (Sentinel) and Texas GulfLink, LLC (GulfLink) request easements across the Justin Hurst Wildlife Management Area (WMA) for the installation and maintenance of one 36-inch and one 42-inch pipeline.

II. Discussion: The Justin Hurst WMA consists of 14,734 acres of coastal prairies, bottomland hardwoods, and marshes and serves as significant habitat for a number of resident and migratory species, including waterfowl and wading birds. It is bordered on the north by the Village of Jones Creek, on the east by Port of Freeport lands, and on the south by the Gulf Intracoastal Waterway. Because of its proximity to port-related industrial development, including a unit of the Strategic Petroleum Reserve, oil and gas and chemical distribution, and general port commerce, the WMA has received a number of requests for infrastructure easements in recent years, primarily for pipelines and powerlines.

Sentinel is in the process of designing and seeking permits for crude oil storage and transport facilities including a tank battery north of the WMA and associated transmission pipelines. The facilities would handle crude oil coming from the Strategic Petroleum Reserve facility at the Port of Freeport and would transport that oil to an offshore loading terminal, which is also currently in the permitting process. Sentinel subsidiary GulfLink proposes to construct one 36-inch and one 42-inch pipeline across the WMA to transport oil to and from the tank battery, the Strategic Petroleum Reserve, and the offshore loading terminal.

Texas Parks and Wildlife Department staff has met with GulfLink representatives to review route analyses. The staff requests permission to begin the public notice and input process.

Attachments – 3

Exhibit A – Location Map
Exhibit B – Vicinity Map
Exhibit C – Map of Requested Easement Route

Work Session Item No. 17
Exhibit A

Location Map for the Justin Hurst Wildlife Management Area in Brazoria County

Work Session Item No. 17
Exhibit B

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

Work Session Item No. 17
Exhibit C

Map of GulfLink’s Requested Easement Route Shown in Yellow
Justin Hurst Wildlife Management Area Outlined in White

Work Session Item No. 18
Presenter: Ted Hollingsworth

Work Session
Grant of Pipeline Easement – Brazoria County
Approximately 6 Acres at the Justin Hurst Wildlife Management Area
Request Permission to Begin the Public Notice and Input Process
May 20, 2020

I. Executive Summary: The Enbridge Houston Oil Terminal project (EHOT) includes pipeline connections between existing and proposed tank farms located adjacent to the Justin Hurst Wildlife Management Area (WMA). Enbridge Inc. (Enbridge) requests an easement to cross the WMA with three 36-inch pipelines connecting the two tank farms.

II. Discussion: The WMA consists of 14,734 acres of coastal prairies, bottomland hardwoods, and marshes and it serves as significant habitat for a number of resident and migratory species, including waterfowl and wading birds. It is bordered on the north by the Village of Jones Creek, on the east by Port of Freeport lands, and on the south by the Intracoastal Waterway. Because of its proximity to port-related industrial development, including a unit of the Strategic Petroleum Reserve, oil and gas and chemical distribution, and general port commerce, the WMA has received numerous requests for infrastructure easements, primarily pipelines and powerlines, in recent years.

The distance to be spanned by the three pipelines is approximately 1,000 feet. The area to be traversed is already occupied by a high-voltage transmission line (with another one authorized) and a major pipeline corridor. Enbridge has submitted several route options to TPWD staff, and the parties have agreed on a preferred route. An area of less than one acre of secondary growth trees will be lost with this route.

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

Attachments – 3

Exhibit A – Location Map
Exhibit B – Vicinity Map
Exhibit C – Site Map Showing Proposed Easement Location

Work Session Item No. 18
Exhibit A

Location Map for the Justin Hurst Wildlife Management Area in Brazoria County

Work Session Item No. 18
Exhibit B

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

Work Session Item No. 18
Exhibit C

Site Map Showing Proposed Easement Location
Justin Hurst Wildlife Management Area Outlined in White
Proposed Enbridge Easement Shown in Red

Work Session Item No. 19
Presenter: Ted Hollingsworth

Work Session
Cameron County Conservation Strategy
May 20, 2020

I. Executive Summary: The staff will brief the Texas Parks and Wildlife Commission on conservation goals for Cameron County and potential opportunities to further those goals.

II. Discussion: The Texas Parks and Wildlife Department (TPWD) owns several sites in southern Cameron County which help protect the unique habitats of the Lower Rio Grande Valley. Staff will discuss conservation strategies for protecting and potentially expanding TPWD lands in Cameron County.

Attachment – 1

Exhibit A – Location Map

Work Session Item No. 19
Exhibit A

Location Map for Cameron County

Work Session Item No. 20
Presenter: Ted Hollingsworth

Work Session
Boundary Issues – Marion County
Caddo Lake Wildlife Management Area
May 20, 2020

I. Executive Summary: The staff will update the Texas Parks and Wildlife Commission (Commission) on issues relating to an ongoing survey and establishment of the northwest boundary of the Caddo Lake Wildlife Management Area (WMA).

II. Discussion: Caddo Lake State Park was established in the 1930s on the south shore of Caddo Lake in Harrison County. Over time, Texas Parks and Wildlife Department (TPWD) expanded the park north across the lake, covering several thousand more acres. In 1997, the TPWD land holdings on the north side of the lake in Marion County were re-designated as a WMA and their management was assigned to the TPWD Wildlife Division. Today the WMA consists of roughly 8,100 acres that protect much of the lake itself and the adjacent swamps, floodplains, slopes, and upland forests that exemplify the habitats of northeast Texas.

Idiosyncrasies in the chain of title for certain tracts making up the WMA and neighboring properties have complicated delineating exact boundaries on the ground. The Commission was last briefed in May 2019 regarding efforts to delineate WMA boundaries. Staff will update the Commission and seek guidance regarding the potential resolution of boundary issues.

Attachments – 3

Exhibit A – Location Map
Exhibit B – Vicinity Map
Exhibit C – Site Map Showing Subject Area

Work Session Item No. 20
Exhibit A

Location Map for Caddo Lake Wildlife Management Area in Marion County

Work Session Item No. 20
Exhibit B

Vicinity Map for Caddo Lake Wildlife Management Area (WMA),
20 Miles Northeast of Marshall

Work Session Item No. 20
Exhibit C

Caddo Lake Wildlife Management Area Outlined in Orange
Area of Boundary Investigation Outlined in White

Work Session Item No. 21
Presenter: Robert Sweeney

Work Session
Litigation Update
May 20, 2020

I. Executive Summary: Attorneys for the Texas Parks and Wildlife Department 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.
Pending litigation regarding the 2011 Bastrop fires, including but not limited to Texas Parks and Wildlife Department v. Asplundh Tree Expert Co., Cause No. 423-5475, in Bastrop County District Court.