Work Session
Wednesday, March 24, 2021
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 20, 2021
- 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
- Outdoor Annual of Hunting, Fishing, and Boating Regulations
- “Fly with the Monarchs” this April
- 2021 Winter Storm Report and Fisheries Report
- Legislative Update
- Financial Overview – Reggie Pegues
- Internal Audit Update – Brandy Meeks
- Rule Review - Recommended Adoption of Proposed Changes and Completed Rule Review – James Murphy (Action Item No. 1)
- Chapter 57 – Fisheries
- Chapter 58 – Oysters, Shrimp, and Finfish
- Chapter 65 – Wildlife
- 2021–2022 Statewide Recreational and Commercial Fishing Proclamation – Recommended Adoption of Proposed Changes – Ken Kurzawski, Dakus Geeslin (Action Item No. 2)
- 2021–2022 Statewide Hunting and Migratory Game Bird Proclamations – Recommended Adoption of Proposed Changes – Shawn Gray, Shaun Oldenburger, Alan Cain (Action Item No. 3)
- Commercially Protected Finfish Rules - Request Permission to Publish Proposed Changes in the Texas Register – Jarret Barker
- Public Lands Proclamation - Request Permission to Publish Proposed Changes in the Texas Register – Justin Dreibelbis
- Aerial Wildlife Management Rules - Request Permission to Publish Proposed Changes in the Texas Register – Claudia Solis, Stormy King
- Acceptance of Donation of Land – Fort Bend County – Approximately 300 Acres at Brazos Bend State Park – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 4)
- Grant of Drainage Easement – Hidalgo County – Approximately 1 Acre at the Estero Llano Grande State Park – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 5)
- Disposition of Land – Harrison County – Approximately 7 Acres at the Caddo Lake Wildlife Management Area – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 6)
- Land Acquisition Strategy – Bastrop County – Approximately 150 Acres at Bastrop State Park – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 7)
- Acquisition of Land – Anderson County – Approximately 430 Acres at the Big Lake Bottom Wildlife Management Area – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 8)
- Pipeline Easement – Orange County - Approximately 5 Acres at the Lower Neches Wildlife Management Area - Request Permission to Begin Public Notice and Input Process – Ted Hollingsworth (Work Session and Executive Session)
- Litigation Update – James Murphy (Executive Session Only)
- Oysters
- Chronic Wasting Disease
- Red Snapper
Land and Water Plan
Financial
Natural Resources
Land Conservation
Executive Session
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
March 24, 2021
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: Reggie Pegues
Work Session
Financial Overview
March 24, 2021
I. Executive Summary: The staff will present a financial overview of the Texas Parks and Wildlife Department (TPWD).
II. Discussion: The staff will update the Texas Parks and Wildlife Commission on state park, boat registration/titling, and license fee revenues collected by TPWD for Fiscal Year (FY) 2021 and will summarize recent budget adjustments for FY 2021.
Work Session Item No. 3
Presenter: Brandy Meeks
Work Session
Internal Audit Update
March 24, 2021
I. Executive Summary: The staff will present an update on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 2020 and 2021 Internal Audit Plans and ongoing or completed external audits.
II. Discussion: The staff will provide an update on the TPWD FY 2020 and 2021 Internal Audit Plans, as well as a briefing of any external audits that have been recently completed or are ongoing.
Work Session Item No. 7
Presenter: Jarret Barker
Work Session
Commercially Protected Finfish Rules
Request Permission to Publish Proposed Changes in the Texas Register
March 24, 2021
I. Executive Summary: The Texas Parks and Wildlife Department (TPWD) staff is seeking permission to publish proposed amendments to Texas Administrative Code (TAC) section 57.971 and to repeal sections 57.972 through 57.974 in the Texas Register. The proposed changes would:
- Remove invoicing, packaging, and labeling requirements specific to fish listed as commercially protected;
- Remove redundant regulations that are already required by statute; and
- Provide clarification to the regulated community that Texas Parks and Wildlife Code (PWC) section 47.0181, section 47.0182, and section 47.0183 establish the requirements for invoicing, packaging, and labeling for all aquatic products.
II. Discussion: The proposed rules will remove limitations for packaging and the cumbersome invoicing process for commercially protected finfish purchased by wholesale fish dealers in Texas. The packaging, labeling, and invoicing requirements are intended to aid Law Enforcement in distinguishing lawfully raised finfish from illegal wild-caught fish protected by state statute. Invoicing requirements under PWC section 47.0181 sufficiently allow for source tracing of all aquatic products. The additional invoicing requirements required by TAC sections 57.972 and 57.973 only apply to imported or farm raised products. The additional requirements for the 19 commercially protected finfish are not needed by Law Enforcement to ensure proper traceability to a lawful source. Repealing sections 57.972 and 57.973 will (by default) align shipping requirements with those required by PWC section 47.0181. Aligning the invoicing requirements will expand fish farmers’ ability to market their products without any increase in risk to wild resources. Repealing TAC section 57.974, specific to reporting requirements, is recommended as reporting will no longer be required. Amending TAC section 57.971 will provide clear guidance to the regulated community on how to handle commercially protected finfish. With the proposed changes, Law Enforcement will be able to sufficiently protect the state’s wild stocks, and fish farmers will be able to market their products as all other aquatic products.
Attachment – 1
Work Session Item No. 7
Exhibit A
COMMERCIALLY PROTECTED FINFISH RULES
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §57.371 and the repeal of 31 TAC §§57.372-57.374, concerning Commercially Protected Finfish. The proposed amendment and repeals would eliminate regulatory language that is explicitly and implicitly duplicative of the statutory provisions of Parks and Wildlife Code, Chapter 47, and replaces that language with succinct references to specific statutory provisions. The proposed amendment also would add a reference to the statutory provisions regarding punishments for a violation of the rules.
2. Fiscal Note.
Jarret Barker, Assistant Commander, Law Enforcement Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.
3. Public Benefit/Cost Note.
Mr. Barker also has determined that for each of the first five years that the rules as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be clearer regulations and the elimination of duplication.
(B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. 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 because the rules do not impose any requirement that is not already imposed by statute, there will be no adverse economic effect on small businesses or microbusinesses as a result of the rules. 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;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Jarret Barker, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650; email: jarret.barker@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §66.020, which authorizes the commission to require by proclamation that fish imported under a finfish import license be tagged, packaged, and labeled and accompanied by an invoice as prescribed by rule of the commission.
The proposed amendment affects Parks and Wildlife Code, Chapter 66.
6. Rule Text.
§57.371. Applicability: Commercially Protected Finfish.
(a) A commercially protected finfish is any fish listed in Parks and Wildlife Code, §66.020(a). [The finfish in this subsection may be imported only by the holder of a finfish import license. To be lawfully imported, sold or purchased in Texas bass of the genus Micropterus, crappie, flathead catfish, red drum, striped bass, white bass or a hybrid of any of these fish must be farm raised and fed a prepared feed containing 20% or more of plant protein or grain by-products as a primary food source.]
(b) The provisions of Parks and Wildlife Code, §§47.0181-47.0183, apply to the possession and transportation of commercial finfish under a valid finfish import license issued by the department.[Except as provided in Parks and Wildlife Code, §66.020, it is unlawful for any person to buy, offer to buy, sell or offer to sell, possess for the purpose of sale, transport or ship for the purpose of sale, barter, or exchange the species listed in this subsection:]
[(1) Bass of the genus Micropterus;]
[(2) Bass, striped;]
[(3) Bass, white;]
[(4) Bass, yellow;]
[(5) Catfish, flathead;]
[(6) Crappie, black;]
[(7) Crappie, white;]
[(8) Drum, red;]
[(9) Grouper, goliath (formerly called jewfish);]
[(10) Marlin, blue;]
[(11) Marlin, white;]
[(12) Muskellunge;]
[(13) Pike, northern;]
[(14) Sailfish;]
[(15) Sauger;]
[(16) Seatrout, spotted;]
[(17) Snook;]
[(18) Spearfish, longbill;]
[(19) Tarpon;]
[(20) Walleye; and]
[(21) Hybrids of any of these fish.]
(c) A person who violates a provision of this subchapter is subject to the penalties prescribed by Parks and Wildlife Code, §66.012.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Issued in Austin, Texas, on
The repeals are proposed under Parks and Wildlife Code, §66.020, which authorizes the commission to require by proclamation that fish imported under a finfish import license to be tagged, packaged, and labeled and to be accompanied by an invoice as prescribed by rule of the commission.
The proposed repeals affect Parks and Wildlife Code, Chapter 66.
§57.372. Packaging Requirements.
§57.373. Package Labels.
§57.374. Delegation of Authority.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on
Work Session Item No. 8
Presenter: Justin Dreibelbis
Work Session
Public Lands Proclamation
Request Permission to Publish Proposed Changes in the Texas Register
March 24, 2021
I. Executive Summary: With this item, the staff seeks permission to publish proposed amendments to the Public Lands Proclamation in the Texas Register for public comment. The proposed amendments would:
- Make changes to the definition of “loaded firearm;”
- Standardize the minimum age limit for participation in youth hunts on public lands during the federal youth waterfowl season; and
- Rename the Public Lands Proclamation subchapter to “Public Hunting Proclamation.”
II. Discussion: Under Texas Parks and Wildlife Code (PWC) chapter 81, subchapter E, the Texas Parks and Wildlife Commission (Commission) is authorized to promulgate rules governing access to and use of public hunting lands and specific hunting, fishing, recreational, or other use of wildlife management areas (WMAs). PWC chapter 12, subchapter A provides that a tract of land purchased primarily for a purpose authorized by the code may be used for any authorized function of the Texas Parks and Wildlife Department (TPWD) “if the Commission determines that multiple use is the best utilization of the land’s resources.” Additionally, PWC chapter 81, subchapter E provides the Commission with the authority to establish open seasons, and authorizes the Executive Director to determine bag limits, means and methods, and conditions for the taking of wildlife resources on WMAs and public hunting lands, which include units of the Texas State Park System designated as public hunting lands.
The staff proposes a change to clarify the definition of loaded firearm to include modern muzzleloading weapons that utilize a propellant cartridge. Additionally, recent federal action regarding the minimum age for participation in the federal youth-only waterfowl season makes it possible to provide for a uniform minimum age requirement for youth hunting opportunity on public hunting lands. The proposed change allows TPWD to have a uniform minimum age standard for youth public hunting opportunities. Finally, the staff has determined that the Public Lands Proclamation subchapter should be retitled to Public Hunting Proclamation to reflect the fact that public hunting opportunity is not restricted to public lands. The proposed amendments located at Exhibit A would effect the necessary changes.
Attachment – 1
Work Session Item No. 8
Exhibit A
PUBLIC HUNTING PROCLAMATION
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes amendments to 31 TAC §65.191 and §65.202, concerning the Public Lands Proclamation. The proposed amendment would alter the title of the subchapter, changing it to “Public Hunting Proclamation” to more accurately reflect the subject material addressed by the subchapter. The proposed amendment to §65.191, concerning Definitions, would alter the definition of “loaded firearm” to accommodate the use of modern muzzleloading weapons that utilize a propellant cartridge rather than traditional systems employing priming charges. The proposed amendment to §65.202, concerning Youth Hunting on Public Hunting Lands, would eliminate a provision regarding the minimum age for participation in youth-only waterfowl hunting during the federal youth waterfowl season. Current rules define a youth as any person less than 17 years of age; however, federal youth-only waterfowl season rules limited participation in the federal youth-only season to persons 15 years of age and younger. Recent federal action allows individual states to establish any minimum age for participation, provided it is less than 18. Removing the current provision will allow the department to have a uniform standard for participation in public hunting opportunities for youth.
2. Fiscal Note.
Justin Dreibelbis, Director of the Private Lands and Public Hunting Program, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed amendments.
3. Public Benefit/Cost Note.
Mr. Dreibelbis also has determined that for each of the first five years that the rules as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be clear regulations governing public hunting activities.
(B) There will be no adverse economic effect on persons required to comply with the rules as proposed.
(C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, 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 such entities. 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. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the rules will not directly affect small businesses, micro-businesses, or rural communities. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.
(D) The department has not drafted a local employment impact statement under the Administrative Procedure Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
(E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will:
(1) neither create nor eliminate a government program;
(2) not result in an increase or decrease in the number of full-time equivalent employee needs;
(3) not result in a need for additional General Revenue funding;
(4) not affect the amount of any fee;
(5) will not create a new regulation;
(6) will not expand, limit, or repeal an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Justin Dreibelbis, e-mail: justin.dreibelbis@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 the authority of Parks and Wildlife Code, §81.006, which prohibits the take, attempted take, or possession of any wildlife or fish from a wildlife management area except in the manner and during the times permitted by the department under Chapter 81, Subchapter E, and under Chapter 81, Subchapter E, which provides the Parks and Wildlife Commission with authority to establish an open season on wildlife management areas and public hunting lands, authorizes the executive director to regulate numbers, means, methods, and conditions for taking wildlife resources on wildlife management areas and public hunting lands, and authorizes the commission to adopt rules governing recreational activities in wildlife management areas.
The proposed amendments affect Parks and Wildlife Code, Chapter 81.
6. Text.
§65.191 Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned in §65.3 of this title (relating to Statewide Hunting and Fishing Proclamation).
(1) – (24) (No change.)
(25) Loaded firearm — A firearm containing a live round of ammunition within the chamber and/or the magazine, or if muzzleloading, one which has a cap on the nipple, [or] a priming charge in the pan, or a propellant charge or propellant cartridge in the breech.
(26) – (49) (No change.)
§65.202. Youth Hunting on Public Hunting Lands.
(a) – (b) (No change.)
[(c) Youth participating in a youth waterfowl hunt during the federal youth waterfowl hunting season must be 15 years of age or younger.]
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on
Work Session Item No. 9
Presenters: Claudia Solis
Stormy King
Work Session
Aerial Wildlife Management Rules
Request Permission to Publish Proposed Changes in the Texas Register
March 24, 2021
I. Executive Summary: With this item, the staff seeks permission to publish a proposed amendment to rules governing the management of wildlife and exotic species from aircraft in the Texas Register for public comment. The proposed amendment would add violations of state and federal laws governing management of wildlife from aircraft to the list of predicate offenses for which the Texas Parks and Wildlife Department (TPWD) could refuse to issue or renew a permit to manage wildlife and exotic species.
II. Discussion: Under federal law (16 U.S. Code [USC.] §742j-1, commonly referred as the Airborne Hunting Act, or AHA), it is unlawful to shoot or attempt to shoot or intentionally harass any bird, fish, or other animal from an aircraft except for certain specified reasons, including protection of wildlife, livestock, and human health as may be authorized by state law pursuant to federal authority. Texas Parks and Wildlife Code (PWC) chapter 43, subchapter G is the statutory authority for regulating airborne wildlife management in Texas; under PWC §43.109, the Texas Parks and Wildlife Commission (Commission) is authorized to promulgate regulations governing the management of wildlife by the use of aircraft.
In 2016, the Commission promulgated regulations to set forth the circumstances under which TPWD could choose to refuse aerial wildlife management permit (AMP) issuance or renewal on the basis of criminal history. The TPWD staff reasoned that it is appropriate to deny the privilege of taking or allowing the take of wildlife resources, and especially for personal benefit, to persons who exhibit a demonstrable disregard for specific laws and regulations governing wildlife. In promulgating the rules, TPWD inadvertently overlooked the inclusion of violations of state and federal airborne hunting laws in the list of predicate offenses for which TPWD could refuse to issue or renew an AMP. TPWD believes it is intuitively obvious that rules regarding the refusal of issuance or renewal of AMPs should include provisions regarding violations of either or both the state and federal law governing the management of wildlife from aircraft. The proposed amendment would remedy that oversight.
Attachment – 1
Work Session Item No. 9
Exhibit A
PERMITS FOR AERIAL MANAGEMENT OF WILDLIFE AND EXOTIC SPECIES
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §65.154, concerning Issuance of Permit; Amendment and Renewal. The proposed amendment would add violations of state and federal laws governing wildlife management from aircraft to the list of predicate offenses for which the department could refuse to issue or renew a permit for the management of wildlife and exotic species (referred to hereafter as the Aerial Management Permit or AMP).
Under federal law (16 U.S.C. §742j-1, commonly referred as the Airborne Hunting Act, or AHA) it is unlawful to shoot or attempt to shoot or intentionally harass any bird, fish, or other animal from aircraft except for certain specified reasons, including protection of wildlife, livestock, and human health except as may be provided by state law pursuant to federal authority. Parks and Wildlife Code, Chapter 43, Subchapter G, is the statutory authority for regulating airborne wildlife management in Texas; under §43.109, the Parks and Wildlife Commission is authorized to promulgate regulations governing the management of wildlife by the use of aircraft.
In 2016, the commission promulgated regulations to set forth the circumstances under which the department could choose to refuse AMP issuance or renewal on the basis of criminal history (41 TexReg 4037). That rulemaking provided for department refusal to issue or renew an AMP for any applicant who has a final conviction or has been assessed an administrative penalty for a list of enumerated violations, including violations of Chapter 43, Subchapter C, E, L, R, or R-1 (various deer management permits); violations of the Parks and Wildlife Code other than Chapter 43, Subchapter C, E, L, R, or R-1 that are punishable as a Parks and Wildlife Code Class A or B misdemeanor, state jail felony, or felony; Parks and Wildlife Code, §63.002 (unlawful possession of live game animals or game birds); or the Lacey Act (16 U.S.C. §§3371-3378), a federal law governing international trade involving endangered species. The department reasoned that it is appropriate to deny the privilege of taking or allowing the take of wildlife resources, and especially for personal benefit, to persons who exhibit a demonstrable disregard for laws and regulations governing wildlife. Similarly, it is appropriate to deny such privileges to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.
In promulgating the rules, the department inadvertently overlooked the inclusion of violations of state and federal airborne hunting laws in the list of predicate offenses for which the department could refuse to issue or renew an AMP. The department believes it is intuitively obvious that rules regarding the refusal of issuance or renewal of AMPs should include provisions regarding violations of either or both the state and federal law governing the management of wildlife from aircraft. The proposed amendment would remedy that oversight.
The department notes that in all cases the denial of AMP issuance or renewal as a result of an adjudicative status listed in the rule is not automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to issue or renew an AMP based on adjudicative status include, but are not limited to: the number of final convictions or administrative violations; the seriousness of the conduct on which the final conviction or administrative violation is based; the existence, number and seriousness of offenses or administrative violations other than offenses or violations that resulted in a final conviction; the length of time between the most recent final conviction or administrative violation and the application for enrollment or renewal; whether the final conviction, administrative violation, or other offenses or violations was the result of negligence or intentional conduct; whether the final conviction or administrative violations resulted from the conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of information provided by the applicant; for renewal, whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigating factors.
2. Fiscal Note.
Stormy King, Assistant Commander, 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. King 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 proposed rule will be more effective oversight of persons authorized to manage a public resource and the benefits to public resources occurring as a result of sound management activities.
(B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the proposed rule regulates a permit that privileges individual persons to manage wildlife resources in this state and therefore does not directly affect small businesses, micro-businesses, or rural communities. The department additionally notes that the rule does not impose a requirement, but rather makes a potential action available to the department predicated on the adjudicated criminal behavior of persons seeking issuance or renewal of a permit., there will be no adverse economic effect on small businesses or microbusinesses as a result of the rules. On this basis, the department has a determined that 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 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 expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Stormy King, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-XXXX; email: stormy.king@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendments are proposed under Parks and Wildlife Code, §43.109, which provides the commission with authority to make regulations governing the management of wildlife or exotic animals by the use of aircraft under this subchapter, including forms and procedures for permit applications; procedures for the management of wildlife or exotic animals by the use of aircraft; limitations on the time and the place for which a permit is valid; establishment of prohibited acts; rules to require, limit, or prohibit any activity as necessary to implement Parks and Wildlife Code, Chapter 43, Subchapter G.
The amendments affect Parks and Wildlife Code, Chapter 43, Subchapter G.
6. Rule Text.
§65.154. Issuance of Permit; Amendment and Renewal.
(a) – (c) (No change.)
(d) The department may refuse to issue to or renew an AMP for any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:
(1) Parks and Wildlife Code, Chapter 43, Subchapter C, E, G, L, R, or R-1;
(2) (No change.)
(3) Parks and Wildlife Code, §63.002; [or]
(4) the Lacey Act (16 U.S.C. §§3371-3378); or
(5) 16 U.S.C. §742j-1 (commonly referred as the Airborne Hunting Act, or AHA).
(e) – (h) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on
Work Session Item No. 15
Presenter: Ted Hollingsworth
Work Session
Pipeline Easement – Orange County
Approximately 5 Acres at the Lower Neches Wildlife Management Area
Request Permission to Begin Public Notice and Input Process
March 24, 2021
I. Executive Summary: Blue Marlin Offshore Port, LLC (Blue Marlin) is proposing to develop a crude oil export terminal in the Gulf of Mexico that would include an onshore pipeline to be bored under a corner of the Lower Neches Wildlife Management Area (WMA).
II. Discussion: Energy Transfer Partners subsidiary Blue Marlin has filed an application with the federal Maritime Administration to construct a crude oil export terminal in federal waters off the southwest coast of Louisiana. The terminal would be connected to a crude oil transfer hub in Nederland, Texas via a new 42-inch diameter pipeline.
The pipeline route analysis evaluated five routes, two of which would have avoided Texas Parks and Wildlife Department (TPWD) land altogether. Those two routes were deemed not feasible because of constraints imposed by the cities of Nederland and Port Arthur and impacts to a National Wildlife Refuge. The community of Bridge City imposed construction constraints on the remaining three routes. Blue Marlin staff worked with the TPWD staff to identify a route which minimizes the distance across the WMA and reduces the route to two reaches where the pipeline would be installed by horizontal directional drilling.
The project’s permitting process is expected to take approximately one year. Blue Marlin requests an easement on TPWD land as a valid easement route is a necessary requirement of the permitting process. TPWD staff recommends a substantial non-refundable earnest money payment from Blue Marlin before beginning work on any authorized easement or surface use agreement, should the project proceed.
The staff requests permission to begin the public notice and input process.
Work Session Item No. 15
Exhibit A
Location Map for the Lower Neches Wildlife Management Area in Orange County
Work Session Item No. 15
Exhibit B
Vicinity Map for the Lower Neches Wildlife Management Area (WMA),
Between Nederland and Orange
Work Session Item No. 15
Exhibit C
Site Map for Proposed Route of 42-Inch Pipeline
Outline of Lower Neches Wildlife Management Area in Yellow
Proposed Route of Pipeline Easement in Blue
Work Session Item No. 16
Presenter: James Murphy
Work Session
Litigation Update
March 24, 2021
I. Executive Summary: Attorneys for the Texas Parks and Wildlife Department (TPWD) will update and advise the Texas Parks and Wildlife Commission regarding pending or anticipated litigation, including but not limited to the following pending lawsuits:
- Potential or pending litigation related to oysters, including but not limited to State of Texas v. Chambers-Liberty Counties Navigation District, Each in his Official Capacity: Terry Haltom as CLCND Commissioner, Allen Herrington as CLCND Commissioner, Kenn Coleman as CLCND Commissioner, Ken Mitchell as CLCND Commissioner, and Dave Wilcox as CLCND Commissioner, and Sustainable Texas Oyster Resources Management, LLC., Cause No. D-1-GN-15-003093, in Travis County District Court.
- Potential or pending litigation regarding disease in white-tailed deer, including but not limited to Ken Bailey and Bradly Peterson v. Carter Smith, Executive Director, Clayton Wolf, Wildlife Division Director, Mitch Lockwood, Big Game Program Director and Texas Parks and Wildlife Department, Cause No. D-1-GN-15-004391, in Travis County District Court.
- Potential or pending litigation related to red snapper, including but not limited to State of Texas v. U.S. Department of Commerce, Civil Action No. 3:20-cv-00297, in United States District Court, Southern District of Texas, Galveston Division.