TPWD: August 25, 2022 Commission Meeting Agenda

August 24-25, 2022, Commission Meeting Agenda

Work Session

Commission Agenda Items

May 25-26, 2022, Transcripts

Commission Meeting Agenda Item No. 9
Presenter: Shaun Oldenburger

Action
Cormorant Control Permit Repeal Rules
Recommended Adoption of Proposed Changes
August 25, 2022

I. Executive Summary: Staff seeks adoption of proposed rules to repeal regulations governing the issuance and use of cormorant control permits.

II. Discussion: Texas Parks and Wildlife Code, chapter 67, delegates authority to the Texas Parks and Wildlife Commission (Commission) to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that Texas Parks and Wildlife Department (TPWD) considers necessary to manage the species. The double-crested cormorant (Phalacrocorax auritus) is classified as a nongame species; however, it is also a federally protected species under the Migratory Bird Treaty Act of 1918, and federal approval is required to take, possess, or disturb it. The double-crested cormorant is a long-lived, colonial-nesting waterbird native to North America, and it is an opportunistic and generalist feeder, preying on many species of fish. In many areas of the country, the double-crested cormorant is perceived as a nuisance species. In 1998, the U.S. Fish and Wildlife Service (Service) allowed certain states, including Texas, to conduct lethal control activities. In 2004, the Commission promulgated rules to allow the take of cormorants by persons acting as agents of TPWD to protect public fisheries resources. In 2018, the Service vacated federal regulations relating to control of depredating double-crested cormorants in response to a court order, at which point TPWD ceased issuing the state’s cormorant control permit. Staff has determined that if the Service authorizes the resumption of control activities in the future, it will likely be in a form and manner that will be incompatible with current TPWD rules. Therefore, staff recommends that the current rule be repealed.

A summary of public comment on the proposed rules will be provided at the meeting.

III. Recommendation:

The staff recommends that the Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to 31 Texas Administrative Code §53.15, concerning License, Permit, and Boat and Motor Fees; §65.221, concerning Depredation Permits; and the repeal of §65.901, concerning Cormorant Control Permit, as listed in Exhibits A – C, with changes as necessary to the proposed text as published in the July 8, 2022, issue of the Texas Register (47 TexReg 3926, 3943, 3944).”

Attachments – 3

Exhibit A – Proposed Fee Rules
Exhibit B – Proposed Depredation Permit Rules
Exhibit C – Proposed Repeal of Cormorant Control Permit Rules

Commission Agenda Item No. 9
Exhibit A

FEE RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits. The amendment would remove the cormorant control permit from the fee catalogue. In another rule action published elsewhere in this issue of the Texas Register, the department proposes to eliminate the cormorant control permit, which the department no longer has the authority to issue. Therefore, references to that permit should be removed from various sections.

2. Fiscal Note.

Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years the proposed amendment is in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the amendment as proposed, as the department ceased issuing the permit in 2018 when the federal authorization to issue it was eliminated.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the amendment as proposed will be the elimination of a provision that is no longer functional.

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

(C) The department has determined that small or micro-businesses and rural communities will not be affected by the proposed amendment. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

(D) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the amendment as proposed will not impact local economies.

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

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

(G) In compliance with the requirements of Government Code, §2001.0241, the department has prepared the following Government Growth Impact Statement (GGIS). The amendment 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, limit, or repeal an existing regulation;

(7) neither increase nor decrease the number of individuals subject to regulation; and

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

4. Request for Public Comment.

Comments on the proposed rule may be submitted to Shaun Oldenburger at 512-389-8012; by email at shaun.oldenburger@tpwd.texas.gov; or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.

The proposed amendment affects Parks and Wildlife Code, Chapter 67.

6. Rule Text.

§53.15. Miscellaneous Fisheries Wildlife Licenses and Permits.

(a) Trap, transport and transplant permit application fees:

(1) nonrefundable application processing fee — $750 per release site; and

(2) nonrefundable application processing fee for amendment to existing permit — $30. If the amendment includes additional release sites, the fee prescribed by paragraph (1) of this subsection shall be imposed for each additional release site.

(b) Game bird and animal breeding licenses:

(1) game animal breeder’s — $79;

(2) class 1 commercial game bird breeder’s — $189; and

(3) class 2 commercial game bird breeder’s — $27.

(1) resident nongame permit — $19;

(2) nonresident nongame permit — $63;

(3) resident nongame dealer permit — $63;

(4) nonresident nongame dealer permit — $252;

(5) nongame species sales permit — $210; and

(6) nongame species sales permit renewal — $210.

(d) Zoological collection permit application — $158;

(e) Scientific research permit application — $53;

(f) Educational display permit application — $53;

(g) Controlled Exotic Species (fish, shellfish and aquatic plants):

(1) water spinach culture permit — $263;

(2) exotic fish or shellfish commercial aquaculture permit:

(A) Initial issuance — $263;

(B) One-year renewal — $74;

(D) Five-year renewal — $263.

(3) triploid grass carp permit fee — $16, plus $2 per triploid grass carp requested (the $2 per fish fee is refundable if the permit application is denied);

(4) exotic species interstate transit permit:

(A) single-use — $27;

(B) one-year authorization — $105.

(5) research, biological control production, zoological display, and limited special purpose permits (other than for triploid grass carp); initial, renewal, or amendment requiring facility inspection — $263; and

(6) research, biological control production, zoological display, and limited special purpose permits (other than for triploid grass carp); initial, renewal or amendment not requiring facility inspection — $27.

(h) Miscellaneous fees:

(1) commercial plant permit — $50;

(2) aerial management permit — $210;

(3) broodstock permit application — $25;

(4) permit to introduce fish, shellfish, or aquatic plants — no fee;

(5) offshore aquaculture permit or renewal — $1,575;

(6) oyster lease application — $200; and

(7) oyster lease renewal/transfer/sale — $200[; and]

[(8) double-crested cormorant control permit — $13].

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

Issued in Austin, Texas, on

Commission Agenda Item No. 9
Exhibit B

DEPREDATION PERMIT RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §65.221, concerning General Provisions. The amendment would remove a reference to the cormorant control permit. In another rule action published elsewhere in this issue of the Texas Register, the department proposes to eliminate the cormorant control permit, which the department no longer has the authority to issue. Therefore, references to that permit should be removed from various sections.

2. Fiscal Note.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the amendment as proposed will be the elimination of a reference that is no longer meaningful.

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

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

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

(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, limit, or repeal an existing regulation;

(7) neither increase nor decrease the number of individuals subject to regulation; and

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

4. Request for Public Comment.

Comments on the proposed rule may be submitted to Shaun Oldenburger at 512-389-8012; by email at shaun.oldenburger@tpwd.texas.gov; or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter H, which authorizes the commission to adopt rules to implement that subchapter, and Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.

The proposed amendment affects Parks and Wildlife Code, Chapters 43 and 67.

6. Rule Text.

§65.221. General Provisions.

(a) Activities authorized under a depredation permit shall be conducted only by persons named on the permit.

(b) A depredation permit authorizes the killing of protected wildlife identified on the permit at any time during the period of validity of the permit, irrespective of open seasons and lawful shooting hours.

(c) A depredation permit may be issued at any time upon a finding by the department that protected wildlife presents a threat to public safety.

(d) Lawful hunting activities may take place on a property for which a depredation permit has been issued.

(e) The department will not issue a permit under this subchapter to control [cormorants or] fur-bearing animals. Nuisance[Cormorant control permits are governed by the provisions of §65.901 of this title (relating to Cormorant Control Permit), and nuisance] fur-bearing animals are addressed by Subchapter Q of this chapter (relating to Statewide Fur-bearing Animal Proclamation).

(f) Nothing in this subchapter shall be construed to relieve any person of any other applicable requirements of federal, state, or local law, including laws prescribing hunting license and hunter education requirements.

(g) Notwithstanding other provisions of this subchapter, the department will not issue a permit under this subchapter for the killing of mule deer, pronghorn antelope, or desert bighorn sheep, except as provided in Parks and Wildlife Code, §43.152(b) and §43.154(a-1).

(h) The department may at any time require an applicant for a depredation permit or a person to whom a depredation permit has been issued to furnish evidence clearly showing serious damage as defined in §65.220(4)(B) and (C) of this title (relating to Definitions).

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

Issued in Austin, Texas, on

Commission Agenda Item No. 9
Exhibit C

CORMORANT CONTROL PERMIT RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of 31 TAC §65.901, concerning Cormorant Control Permit.

The double-crested cormorant (Phalacrocorax auritus) is a long-lived, colonial-nesting waterbird native to North America, and is the most abundant of six species of cormorants occurring in North America. They are opportunistic and generalist feeders, preying on many species of fish, but concentrating on those that are easiest to catch. In many areas, the double-crested cormorant is regarded as a nuisance species. The double-crested cormorant is a protected species under the Migratory Bird Treaty Act of 1918, and federal approval is required to take, possess, or disturb them. The U.S. Fish and Wildlife Service (Service) in 1998 allowed U.S. Department of Agriculture Wildlife Services to conduct winter roost control on double-crested cormorants and later established a public resource depredation order to allow state wildlife agencies (including Texas), Tribes, and U.S. Department of Agriculture’s Wildlife Services to conduct control activities for the protection of public resources. Under the order, the department was allowed to authorize agents to conduct lethal control activities. The current rule created a mechanism to protect public fisheries resources from depredation by allowing persons acting as agents of the department to control double-crested cormorants by permit on specific tracts of land. In 2018, the Service vacated federal regulations relating to control of depredating double-crested cormorants in response to a court order, at which point the Department ceased issuing the state’s cormorant control permit. Staff has determined that if the Service at some point authorizes the resumption of control activities, it will be in a form and manner that will be incompatible with current rule; therefore, the current rule can be repealed.

2. Fiscal Note.

Shaun Oldenburger, Small Game Program Director, has determined that for each of the first five years the proposed repeal is in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the repeal.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the repeal as proposed will be the elimination of a rule that is no longer functional.

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

(C) The department has determined that small or micro-businesses and rural communities will not be affected by the proposed repeal. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

(D) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the repeal as proposed will not impact local economies.

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

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

(G) In compliance with the requirements of Government Code, §2001.0241, the department has prepared the following Government Growth Impact Statement (GGIS). The repeal 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 or limit an existing regulation, but will repeal an existing regulation;

(7) neither increase nor decrease the number of individuals subject to regulation; and

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

4. Request for Public Comment.

Comments on the proposed rule may be submitted to Shaun Oldenburger at 512-389-8012; by email at shaun.oldenburger@tpwd.texas.gov; or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

The new rule is proposed under the authority of Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.

The proposed new rule affects Parks and Wildlife Code, Chapter 67.

6. Rule Text.

§65.901. Cormorant Control Permit.

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