TPWD: Wednesday, 9:00 a.m., May 24, 2023 Commission Meeting Agenda

May 24-25, 2023, Commission Meeting Agenda

Work Session

Commission Agenda Items

March 22-23, 2023, Transcripts

Work Session

Wednesday, May 24, 2023
9:00 a.m.

Texas Parks and Wildlife Department
Commission Hearing Room
4200 Smith School Road
Austin, TX 78744

Arch “Beaver” Aplin, III, Commission Chair
David Yoskowitz, Ph.D., Executive Director

Approval of the Previous Minutes from the Commission Work Session held March 22, 2023

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 – David Yoskowitz, Ph.D.
- Internal Affairs Update
- Staff Recognition
- 100 S’more Years of Texas State Parks
- Galveston Island State Park Grand Reopening
- Outreach and Education
- Mule Deer/Aoudad – Mycoplasma ovipneumoniae (MAM) Research Project
- Huntsville Bat Colony Partnership
Legislative Update – Request Permission to Publish Proposed Rules Needed to Implement Legislation Passed During the 88th Texas Legislature – David Yoskowitz, Ph.D., James Murphy

Financial

Financial Overview – Reggie Pegues
Internal Audit Update – Brandy Meeks

Natural Resources

Boating and Waterways Advisory Committee – Request Permission to Publish Proposed Rules in the Texas Register – Cody Jones
Fish Pass Proclamation – Request Permission to Publish Proposed Changes in the Texas Register – Les Casterline
Digital Licensing and Tagging Requirements – Recommended Adoption of Proposed Changes – Chris Cerny (Action Item No. 1)
Public Hunting Program – Establishment of an Open Season on Public Hunting Lands and Approval of Public Hunting Activities on State Parks – Kevin Mote (Action Item No. 2)
Chronic Wasting Disease Detection and Response Rules – Amendments to Surveillance Zone Delineations – Recommend Adoption of Proposed Changes – Dr. Hunter Reed (Action Item No. 3)
Chronic Wasting Disease Detection and Response Rules – Request Permission to Publish Proposed Changes in the Texas Register – Dr. Hunter Reed

Land Conservation

Request for Pipeline Easement – Jefferson County – Approximately 15.9 Acres at the J.D. Murphree Wildlife Management Area – Request Permission to Begin the Public Notice and Input Process – Jason Estrella (Work Session and Executive Session)
Request for Pipeline Easement – Jefferson County – Approximately 13.5 Acres at the J.D. Murphree Wildlife Management Area – Request Permission to Begin the Public Notice and Input Process – Jason Estrella (Work Session and Executive Session)
Request for Pipeline Easement – Jefferson County – Approximately 27.6 Acres at the J.D. Murphree Wildlife Management Area – Request Permission to Begin the Public Notice and Input Process – Jason Estrella (Work Session and Executive Session)
Grant of Utility Easement – Bastrop County – Approximately 1 Acre at Bastrop State Park – Jason Estrella (Work Session and Executive Session) (Action Item No. 5)
Acquisition of Land – Freestone County – Approximately 5,000 Acres at Fairfield Lake State Park – Jason Estrella (Work Session and Executive Session) (Action Item No. 6)

Executive Session

Litigation Update – James Murphy (Executive Session Only)

Work Session Item No. 1
Presenter: David Yoskowitz, Ph.D.

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 24, 2023

I. Executive Summary: Executive Director David Yoskowitz, Ph.D. 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. Every five years, TPWD is statutorily required to evaluate its progress toward achieving the plan’s goal and objectives. Dr. Yoskowitz 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
Presenters: David Yoskowitz, Ph.D.
James Murphy

Work Session
Legislative Update – Request Permission to Publish Proposed Rules
Needed to Implement Legislation Passed During the 88th Texas Legislature
May 24, 2023

I. Executive Summary: Executive Director David Yoskowitz, Ph.D. and General Counsel James Murphy will present an update regarding the 88th Texas Legislature.

II. Discussion: Dr. Yoskowitz will update the Texas Parks and Wildlife Commission on the deliberations of the Conference Committee on Appropriations and other major legislative issues and initiatives impacting the Texas Parks and Wildlife Department. In addition, permission will be requested to publish proposed rules in the Texas Register that may be required to implement legislation enacted by the 88th Texas Legislature.

Work Session Item No. 3
Presenter: Reggie Pegues

Work Session
Financial Overview
May 24, 2023

I. Executive Summary: Staff will present a financial overview of the Texas Parks and Wildlife Department (TPWD).

II. Discussion: Staff will update the Texas Parks and Wildlife Commission on state park, boat registration and titling, and license fee revenues collected by TPWD for year-to-date Fiscal Year (FY) 2023. Staff will also summarize recent budget adjustments for FY 2023.

Work Session Item No. 4
Presenter: Brandy Meeks

Work Session
Internal Audit Update
May 24, 2023

I. Executive Summary: Staff will provide an update on Internal Audit activities and projects that have taken place since January 25, 2023, meeting of the Texas Parks and Wildlife Commission Work Session.

II. Discussion: Staff will present an update on the Texas Parks and Wildlife Department Fiscal Year (FY) 2022 and FY 2023 Internal Audit Plans. Staff will also provide an update on external audits and assessments.

Work Session Item No. 5
Presenter: Cody Jones

Work Session
Boating and Waterways Advisory Committee – Request Permission to Publish Proposed Rules in the Texas Register
May 24, 2023

I. Executive Summary: Staff seeks permission to publish a proposed new rule to create the Boating and Waterways Advisory Committee (BWAC) in the Texas Register for public comment.

II. Discussion: Under Texas Parks and Wildlife Code, Chapter 31, the Texas Legislature has designated Texas Parks and Wildlife Department (TPWD) as the primary regulatory agency for boating and boating safety. Texas Parks and Wildlife Code section 11.0162 authorizes the Chairman (Chairman) of the Texas Parks and Wildlife Commission (Commission) to appoint committees to advise the Commission on issues under its jurisdiction. Under this authority, the Commission has established several advisory committees to provide TPWD with informed opinion regarding various aspects and dimensions of the TPWD’s mission. These advisory committees perform a valuable service for TPWD and the people of Texas.

Texas Government Code, Chapter 2110 requires state agencies to adopt rules regarding each advisory committee. Unless otherwise provided by specific statute, the rules must (1) state the purpose of the committee; (2) describe the way the committee will report to the agency; and (3) establish the date on which the committee will automatically be abolished, unless the advisory committee has a specific duration established by statute.

The Chairman has determined that it would be beneficial to form an advisory group composed of various members of the public interested in boating and boating-related matters to assist TPWD in ensuring that regulation of boating in Texas continues to reflect TPWD’s strong commitment to outdoor recreation and boating safety. The proposed new rule would create the BWAC and provide the statutorily required elements for its existence.

Attachment – 1

Exhibit A – Advisory Committee Rules

Work Session Item No. 5
Exhibit A

ADVISORY COMMITTEE RULES

BOATING AND WATERWAYS ADVISORY COMMITTEE

PROPOSAL PREAMBLE

1. Introduction

The Texas Parks and Wildlife Department proposes new 31 TAC §51.615, concerning the Boating and Waterways Advisory Committee (BWAC).

Parks and Wildlife Code, §11.0162, authorizes the Chairman of the Texas Parks and Wildlife Commission (the Commission) to "appoint committees to advise the commission on issues under its jurisdiction." Under Parks and Wildlife Code, Chapter 31, the legislature has designated TPWD as the primary regulatory agency for boating and boating safety. Government Code, Chapter 2110, requires that rules be adopted regarding each state agency advisory committee. Unless otherwise provided by specific statute, the rules must (1) state the purpose of the committee; (2) describe the manner in which the committee will report to the agency; and (3) establish the date on which the committee will automatically be abolished, unless the advisory committee has a specific duration established by statute. Under this authority, the Commission has established a number of advisory committees to provide the department with informed opinion regarding various aspects and dimensions of the department’s mission. These advisory committees perform a valuable service for the department and the people of Texas.

The department is the primary state agency responsible for water safety and boating regulation. Staff have determined that the creation of an advisory board for matters concerning boating and waterways would be helpful in assisting the department and the commission in determining and executing appropriate strategies to maximize public safety and public enjoyment with respect to boating in this state.

2. Fiscal Note.

Assistant Commander Cody Jones, Boating Law Administrator, 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 government as a result of administering the rule.

There will be no impact on persons required to comply with the rule as proposed.

3. Public Benefit/Cost Note.

Mr. Jones 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 the enhancement of department and commission decision-making with respect to regulation of boating and water safety.

(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 will not result in any direct economic costs to any small businesses, micro-businesses, or rural communities; therefore, 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 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 a fee;

(5) 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 Assistant Commander Cody Jones, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-; email: cody.jones@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

The amendment is proposed under Government Code, Chapter 2110, which requires the adoption of rules regarding state agency advisory committee.

The proposed amendment affects Government Code, Chapter 2110.

6. Rule Text.

§51.615. Boating and Waterways Advisory Committee (BWAC).

(a) The BWAC is created to advise the department on all matters pertaining to waterway and boating programs in Texas.

(b) The BWAC shall be composed of up to 24 members of the public who have an interest in boating, waterways, and water safety in Texas.

(c) The BWAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).

(d) The BWAC shall expire on July 1, 2026.

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. 6
Presenter: Les Casterline

Work Session
Fish Pass Proclamation
Request Permission to Publish Proposed Changes in the Texas Register
May 24, 2023

I. Executive Summary: Staff seeks permission to publish a proposed amendment to rules governing activities in the Cedar Bayou Fish Pass in the Texas Register for public comment. The amendment would clarify the delineation of restricted areas within the fish pass.

II. Discussion: Under the provisions of Texas Parks and Wildlife Code section 66.204, the Texas Parks and Wildlife Commission is authorized to adopt rules regarding the placement of obstructions, traps, and mooring in fish passes and the marking of restricted areas in any natural or artificial pass that is opened, reopened, dredged, excavated, constructed, or maintained by Texas Parks and Wildlife Department (TPWD) as a fish pass between the Gulf of Mexico and an inland bay.

The Cedar Bayou Fish Pass is a natural channel that connects Mesquite Bay to the Gulf of Mexico and functions as a migratory path for various aquatic species to and from the estuary. TPWD has become aware of possible angler and boater confusion with respect to the demarcation of restricted areas within the pass. The proposed amendment would address that issue.

Attachment – 1

Exhibit A – Fish Pass Proclamation

Work Session Item No. 6
Exhibit A

FISH PASS PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §57.901, concerning Prohibited Acts.

The proposed amendment would retitle the section to more accurately reflect its content and clarify the delineation of restricted areas within the Cedar Bayou Fish Pass. Cedar Bayou is a natural channel that connects Mesquite Bay to the Gulf of Mexico and functions as a migratory path for various aquatic species to and from the estuary. In 1939, the Texas Legislature prohibited the operation, possession, or mooring of vessels and the placement of pilings, wires, ropes, cables, nets, traps or other obstructions within 2,800 feet of the point where a fish pass connects with the Gulf of Mexico or connects with an inland bay, and further required this restricted area to be permanently marked. Cedar Bayou has been periodically dredged and maintained since that time and the department has erected signs indicating that Cedar Bayou is a fish pass.

The 75^th Texas Legislature in 1997 amended Parks and Wildlife Code, §66.204, to specifically authorize the commission to “regulate the placement of obstructions, traps, and mooring in fish passes and the marking of restricted areas in any natural or artificial pass that is opened, reopened, dredged, excavated, constructed, or maintained by the department as a fish pass between the Gulf of Mexico and an inland bay.” Consequently, the commission promulgated the current rule in 1998. The department has determined that the current rule should be amended to make it clear that “fish pass” and “restricted area” are not synonymous terms; therefore, the proposed amendment would add new subsection (b) to make it clear that the restricted area within the fish pass where no vessels are allowed is distinct from the remainder of the fish pass where vessels may not be anchored or moored for a period exceeding two consecutive days.

2. Fiscal Note.

Robert Macdonald, Regulations Coordinator, 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 government as a result of enforcing or administering the rule as proposed.

3. Public Benefit/Cost Note.

Mr. Macdonald 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 clarity of department regulations.

The department has a determined that because the rule as proposed does not directly regulate any small business, microbusiness, or rural community, there will be no adverse economic impact on small businesses, microbusinesses, or rural communities as a result of the proposed rule.

(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 a fee;

(5) 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 Assistant Commander Les Casterline, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4853; email: le.fisheries@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, §66.204, which authorizes the commission to make ruled governing the placement of obstructions, traps, and mooring in fish passes and the marking of restricted areas in any natural or artificial pass that is opened, reopened, dredged, excavated, constructed, or maintained by the department as a fish pass between the Gulf of Mexico and an inland bay.

The proposed amendment affects Parks and Wildlife Code, Chapter 66.

6. Rule Text.

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

§57.901. Cedar Bayou Fish Pass[Prohibited Acts].

(a) Within the distance inside [area in] Cedar Bayou between [a Department sign erected] where Mesquite Bay flows into Cedar Bayou and a “No Vessels” marker or [the Department] sign erected by the department near the point where Cedar Bayou[the pass] empties into the Gulf of Mexico, it is an offense to[unlawful]:

(1) [to] place any type of trap; or

(2) anchor or moor a vessel, barge, or structure for a period exceeding two consecutive days.

(b) The distance inside Cedar Bayou from the mouth of the pass where it empties into the Gulf of Mexico to a “No Vessels” marker or sign erected by the department is designated as a restricted area subject to the provisions of Parks and Wildlife Code, §66.204(b).

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. 10
Presenter: Dr. Hunter Reed

Work Session
Chronic Wasting Disease Detection and Response Rules
Request Permission to Publish Proposed Changes in the Texas Register
May 24, 2023

I. Executive Summary: Staff seeks permission to publish proposed changes to rules establishing Chronic Wasting Disease (CWD) Containment Zones. In addition, staff seeks permission to publish proposed rules for CWD positive breeding facilities. Both will be published in the Texas Register for public comment. The proposed amendments and rules would:

Establish a Containment Zone for portions of Hunt and Kaufman counties to include all properties that are partially or entirely within five miles of the positive release sites;
Allow for live animal movement from Movement Qualified deer breeding facilities outside of a Containment Zone; and
Establish new rules for CWD positive breeding facilities that would require all animals confirmed to be positive for CWD through antemortem testing to be euthanized and postmortem tested within seven days of confirmation, require the facility to be inspected daily for mortalities, require that mortalities be reported immediately, and require that samples be submitted for CWD testing within one business day.

II. Discussion: Texas Parks and Wildlife Department (TPWD) began establishing CWD Containment Zones, Surveillance Zones, and Buffer Zones in 2012 following the detection of CWD in the Hueco Mountains. The purpose of those CWD Zones was to determine the geographic extent and prevalence of the disease while containing it by limiting the unnatural movement of live CWD-susceptible species as well as the movement of carcass parts. TPWD has continually reassessed, adapted, and enhanced its CWD surveillance strategy for deer breeding herds across Texas. Following detection of CWD in breeding facilities in 2015, TPWD increased its postmortem surveillance testing requirements from 20 percent to 80 percent of eligible mortalities for deer breeding facilities. Additionally, Texas became the first state to start implementing routine antemortem surveillance strategies. In 2021, after seven additional breeding facilities were found to be CWD positive, TPWD, with the input of the Texas Animal Health Commission (TAHC), again increased its surveillance requirements for postmortem testing from 80 percent to 100 percent of eligible mortalities. TPWD also enhanced antemortem testing to require a valid antemortem test on each animal being released. These changes improved regulatory consistency between TPWD, TAHC, and the United States Department of Agriculture and established a framework for responding to epidemiologically linked facilities. These rules have not only greatly enhanced TPWD’s ability to identify and respond to CWD positive breeding facilities, but they have also increased confidence in the quality of reported surveillance data. Consequently, TPWD proposes to establish a new Containment Zone encompassing parts of Hunt and Kaufman counties. However, considering the advancements in disease surveillance for deer breeding facilities, TPWD also seeks to relieve live animal restrictions for Movement Qualified deer breeding facilities located within Containment Zones.

While there have been notable improvements in the surveillance requirements for deer breeding facilities, staff have also identified deficiencies in the rules as they relate to CWD positive herds. Current rules address TPWD’s CWD response in relation to epidemiologically linked herds, but they do not specifically outline requirements for the CWD positive herds themselves. To expedite TPWD’s response to the infected herds and mitigate the risk of CWD transmission to other nearby deer populations, staff proposes new rules that would require all animals confirmed to be positive for CWD through antemortem testing to be euthanized and postmortem tested within seven days of confirmation, require the facility to be inspected daily for mortalities, require that mortalities be reported immediately, and require that samples be submitted for CWD testing within one business day.

Attachment – 1

Exhibit A – Disease Detection and Response Rules

Work Session Item No. 10
Exhibit A

DISEASE DETECTION AND RESPONSE RULES

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§65.81, 65.92, 65.95, and 65.99, concerning Disease Detection and Response.

The proposed amendments would function collectively to refine surveillance efforts as part of the agency’s effort to manage chronic wasting disease (CWD).

Chronic wasting disease (CWD) is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (referred to collectively as susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle and commonly known as “Mad Cow Disease”), and variant Creutzfeldt-Jakob Disease (vCJD) in humans.

Much remains unknown about CWD, although robust efforts to increase knowledge are underway in many states and countries. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. Currently, there is scientific evidence to suggest that CWD has zoonotic potential; however, no confirmed cases of CWD have been found in humans. Consequently, both the Centers for Disease Control and Prevention and the World Health Organization strongly recommend testing animals taken in areas where CWD exists, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to certain species of cervids and is transmitted both directly (through animal-to-animal contact) and indirectly (through environmental contamination). If CWD is not contained and controlled, the implications of the disease for Texas and its multi-billion-dollar ranching, hunting, wildlife management, and real estate economies could be significant.

The department has engaged in several rulemakings over the years to address the threat posed by CWD, including rules to designate a system of zones in areas where CWD has been confirmed. The purpose of those CWD zones is to determine the geographic extent and prevalence of the disease while containing it by limiting the unnatural movement of live CWD-susceptible species as well as the movement of carcass parts.

The department’s response to the emergence of CWD in captive and free-ranging populations is guided by the department’s CWD Management Plan (Plan) https://tpwd.texas.gov/huntwild/wild/diseases/cwd/plan.phtml. Developed in 2012 in consultation with the Texas Animal Health Commission (TAHC), other governmental entities and conservation organizations, and various advisory groups consisting of landowners, hunters, deer managers, veterinarians, and epidemiologists, the Plan sets forth the department’s CWD management strategies and informs regulatory responses to the detection of the disease in captive and free-ranging cervid populations in the state of Texas. The Plan is intended to be dynamic; in fact, it must be so in order to accommodate the growing understanding of the etiology, pathology, and epidemiology of the disease and the potential management pathways that emerge as it becomes better understood through time. The Plan proceeds from the premise that disease surveillance and active management of CWD once it is detected are absolutely critical to containing it on the landscape. Accordingly, the first step in the department’s response to CWD detections is the timely establishment of management zones around locations where detection occurs. One type of management zone is the containment zone (CZ), defined by rule as “a department-defined geographic area in this state within which CWD has been detected or the department has determined, using the best available science and data, CWD detection is probable.” Within a CZ, the movement of live deer is subject to restrictions and the presentation of harvested deer at a department check stations is required. In addition, deer carcass movement restrictions set forth in §65.88 of Subchapter B, Division 1 apply.

The Texas Parks and Wildlife Commission recently directed staff to develop guidelines or a standard operating procedure (SOP) with respect to the establishment and duration of the various management zones, including CZs. In cases where CWD is discovered in a deer breeding facility but not on associated release sites, the department is confident that the breeding facility itself can function as a de facto CZ, because the deer within the facility are behind a high fence and subjected to routine CWD surveillance testing under current rules. However, in situations where CWD is detected in a free-ranging deer the department has little choice but to formally impose a CZ in response. The SOP dictates that a CZ consist of all properties wholly or partially located within five miles of the property (or properties) where CWD was detected.

As noted previously in this preamble, the department has been engaged in a long-term effort to stem the spread of CWD; however, by 2021 it was apparent that more robust measures were warranted because CWD was still being detected in additional deer breeding facilities, as well as release sites associated with deer breeding facilities. The commission adopted those rules, which require higher rates of testing, ante-mortem (live-animal) testing of breeder deer prior to release, and enhanced recordkeeping and reporting measures, in December of 2021 (46 TexReg 8724). The department notes that other rulemakings have enhanced provisions regarding carcass movement restrictions. This year is the first full year of the applicability of those measures.

The proposed amendment to §65.81, concerning Containment Zones; Restrictions, would establish a new CZ in Hunt County (CZ 7) in response to recent detections of CWD in free-ranging deer on release sites associated with a deer breeding facility. That facility is already within Surveillance Zone 7, which was created in response to the initial detection of CWD on that premise. On February 17, 2023, the department received confirmation that CWD was present on a release site associated with the deer breeding facility for which SZ 7 was created. Two additional positives have been detected on an associated release site in Kaufman County (a 4.5-year-old male and a 5.5 year-old male).

The proposed amendment to §65.92, concerning CWD Testing, would create exceptions in subsections (j) and (k) in order to accommodate the provisions of the proposed amendment to §65.95, concerning Movement of Deer.

The proposed amendment to §65.95, concerning Movement of Breeder Deer, would add new subsection (d) to allow for the transfer of breeder deer from deer breeding facilities located within a CZ to breeding facilities and release sites outside the CZ, provided all involved facilities are authorized by the department to transfer deer (known as Movement Qualified (MQ) status, which is based on satisfaction of the testing requirements of the Division) and all deer to be transferred have been, at no earlier than six months of age, the subject of a “not detected” ante-mortem test result within eight months of the transfer. The department has determined that because the improved rules mentioned earlier in this preamble have resulted in substantial improvements in surveillance with respect to breeding facilities, there is increased confidence that CWD can be detected early if it exists in any given deer breeding facility (provided the facility is in compliance with testing requirements). On that basis, the department reasons that a deer breeding facility in compliance with all provisions of Chapter 65, Subchapter B (and designated MQ) may have a lower potential for disease transmission if deer are ante-mortem tested at a minimum age of six months and within eight months of transfer, even if the facility is located in a CZ. Therefore, the proposed rule would allow a deer breeding facility that is designated MQ to transfer deer to any other facility that is also designated MQ, including release sites.

The proposed amendment to §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, would add new subsection (j) to require the euthanization of breeder deer within seven days of notification of confirmation of a positive ante-mortem CWD test result, the submission of post-mortem tissue samples (accompanied by both ears and required ear tags) of such deer within one day of euthanization, and daily facility inspections (with any mortalities to be immediately reported to the department, and the collection and submission of post-mortem tissue samples from test-eligible mortalities within one business day of collection). The proposed amendment also would retitle the section to reflect its applicability to deer breeding facilities in which CWD has been detected. From an epidemiological perspective, it is important to definitively assess the progress of disease in an individual animal as quickly as possible in order to determine the temporal parameters of disease transmission in the population. Immediate euthanization and post-mortem testing of all animals that test positive via ante-mortem testing gives the department and the regulated community the best chance of ensuring that disease transmission is mitigated as soon as possible in a breeding facility. Similarly, the proposed requirement for daily inspections and immediate reporting and testing of mortalities is necessary to gain additional understanding of disease status within the facility. The proposed rule also would require the submission of both ears and the required identification tags in order for the department to definitively establish the unique identity of the deer in question for future epidemiological investigation. Under current rule, a facility that returns a positive test result is automatically designated “not movement qualified” (NMQ) and is prohibited from transferring deer in or out of the facility; therefore, the proposed amendment would repeat that requirement simply for clarity and emphasis.

2. Fiscal Note.

Robert Macdonald, Regulations Coordinator, 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 and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of disease management activities will administer and enforce the rules as part of their current job duties and resources.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be a reduction of the probability of CWD being spread from locations where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas.

(B) There could be adverse economic impact on persons required to comply with the rules as proposed. Such impacts would be identical to those described in the analysis of the rules’ potential effect on small businesses, microbusinesses, and rural communities elsewhere in this preamble.

(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, and rural communities. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

For the purposes of this analysis, the department considers all deer breeders to be small or microbusinesses, which ensures that the analysis captures all deer breeders possibly affected by the proposed rulemaking. The department has determined that there is one deer breeding facility (other than the breeding facilities where CWD has been detected, which are prohibited from transferring deer under other rules) within proposed CZ 7. That deer breeding facility is designated MQ. Under current rule, the facility would be prohibited from transferring breeder deer outside the CZ; however, the proposed amendment would allow such transfers to occur, provided the facility maintains MQ status and is otherwise in compliance with the provisions of the subchapter. On that basis, there would be no adverse impacts to the deer breeder in question. If the proposed amendment to allow transfers outside the CZ is not adopted, the economic impact to the breeder in question could be significant. Because the nature of the market for breeder deer is fluid and the department does not require sale prices of breeder to be reported, the department has does not have the ability to determine the exact value of lost sales to the deer breeder in question. Department records indicated the breeder in question has transferred an average of 53 deer per year, with an average of 17 of those deer being released to adjoining acreage (which would still be permitted even if the proposed amendment were not adopted). Therefore, the adverse economic impact to the breeder in question, based on the transfer history of the last five years, would be the value of 35 deer per year.

The department has determined that the proposed rules will not affect rural communities because the rules do not directly regulate any rural community.

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

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

(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 rules. Any impacts resulting from the discovery of CWD in or near private real property would be the result of the discovery of CWD and not the proposed rule.

(G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will:

(1) neither create nor eliminate a government program;

(2) not result in an increase or decrease in the number of full-time equivalent employee needs;

(3) not result in a need for additional General Revenue funding;

(4) not affect the amount of any fee;

(5) not create a new regulation;

(6) expand an existing regulation (by creating new areas subject to the rules governing CZs) and imposing new inspection and reporting requirements for deer breeding facilities where CWD is detected), but will otherwise not limit or repeal an existing regulation;

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

(8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Hunter Reed, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 890-1230 (e-mail: jhunter.reed@tpwd.texas.gov); or via the department’s website at www.tpwd.texas.gov.

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, 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; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter; Subchapters R and R-1, which authorize the commission to establish the conditions of a deer management permit for white-tailed and mule deer, respectively; and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.

6. Rule Text.

§65.81. Containment Zones; Restrictions.

(1) The areas described in paragraph (1) of this section are CZs. (1) Containment Zones.

(A) – (F) (No change.)

(G) Containment Zone 7 is that portion of the state lying within the area described by the following latitude-longitude coordinate pairs: -96.21356759520, 32.93034177510; -96.20861492790, 32.93062271340; -96.20769578840, 32.93067232720; -96.20732503750, 32.93068140220; -96.20710298860, 32.93068643390; -96.20688260170, 32.93070985230; -96.20442195490, 32.93094106890; -96.19879387970, 32.93124448120; -96.19315431390, 32.93123658430; -96.18752746450, 32.93091741310; -96.18193748280, 32.93028833640; -96.17640835920, 32.92935205410; -96.17096382300, 32.92811258320; -96.16562723700, 32.92657524440; -96.16042149880, 32.92474663220; -96.15536893750, 32.92263459410; -96.15049122610, 32.92024819270; -96.14580927730, 32.91759766400; -96.14134316220, 32.91469438080; -96.13711201920, 32.91155079520; -96.13622641360, 32.91083798810; -96.12494000920, 32.90162215750; -96.12184819660, 32.89896427870; -96.11814108320, 32.89538116920; -96.11471996870, 32.89160108390; -96.11159948660, 32.88764023130; -96.10879297770, 32.88351559240; -96.10631243170, 32.87924484870; -96.10416843710, 32.87484630590; -96.10237013300, 32.87033881570; -96.10092517700, 32.86574169180; -96.09983970690, 32.86107463220; -96.09911831850, 32.85635762960; -96.09876404670, 32.85161088910; -96.09877835310, 32.84685473910; -96.09916111900, 32.84210954720; -96.09991065180, 32.83739562930; -96.10102368600, 32.83273316520; -96.10249540400, 32.82814211180; -96.10431945490, 32.82364211740; -96.10648798380, 32.81925243920; -96.10899166580, 32.81499185700; -96.11181974410, 32.81087859810; -96.11496008310, 32.80693025770; -96.11746988050, 32.80418152580; -96.11755375850, 32.80313866560; -96.11830205020, 32.79842452110; -96.11941370220, 32.79376178180; -96.12088390310, 32.78917040460; -96.12270630810, 32.78467004060; -96.12487306900, 32.78027994610; -96.12737486880, 32.77601890420; -96.13020095860, 32.77190514530; -96.13333921120, 32.76795626360; -96.13677616560, 32.76418915010; -96.14049708990, 32.76061991450; -96.14361588300, 32.75795916770; -96.15030201320, 32.75254081800; -96.15117207400, 32.75184542080; -96.15541150690, 32.74871658500; -96.15988374280, 32.74582860110; -96.16456964780, 32.74319381590; -96.16944917580, 32.74082348990; -96.17450146100, 32.73872775390; -96.17970490330, 32.73691556600; -96.18503725980, 32.73539466850; -96.19047574170, 32.73417156270; -96.19599710870, 32.73325147350; -96.20157776980, 32.73263833370; -96.20719388130, 32.73233476210; -96.21282145100, 32.73234205650; -96.21843643660, 32.73266018450; -96.22401484850, 32.73328778900; -96.22953285300, 32.73422218640; -96.23496687420, 32.73545938460; -96.24029369090, 32.73699409660; -96.24549053580, 32.73881976530; -96.25053519730, 32.74092858740; -96.25540610540, 32.74331155160; -96.26008243080, 32.74595847130; -96.26454416980, 32.74885803400; -96.26877223170, 32.75199784510; -96.27208130510, 32.75476813650; -96.27799411370, 32.75999311670; -96.27866140080, 32.76058942750; -96.28236931730, 32.76416831370; -96.28579254530, 32.76794433860; -96.28891640880, 32.77190135380; -96.29172751230, 32.77602243590; -96.29421378790, 32.78028995730; -96.29636455620, 32.78468566000; -96.29817056660, 32.78919073740; -96.29875523030, 32.79103915710; -96.30070745700, 32.79319136250; -96.30383279710, 32.79714795770; -96.30664531710, 32.80126865130; -96.30913294620, 32.80553581930; -96.31128499780, 32.80993120460; -96.31309221600, 32.81443600310; -96.31454681730, 32.81903093620; -96.31564252520, 32.82369633930; -96.31637459490, 32.82841224380; -96.31673983750, 32.83315846000; -96.31673663320, 32.83791466760; -96.31636493980, 32.84266049980; -96.31562629240, 32.84737563000; -96.31452380180, 32.85203986300; -96.31306213460, 32.85663321610; -96.31124750240, 32.86113600910; -96.30908763030, 32.86552894730; -96.30659172920, 32.86979320330; -96.30377045070, 32.87391049840; -96.30063584940, 32.87786318330; -96.29720132590, 32.88163431140; -96.29348157340, 32.88520771270; -96.29102813830, 32.88732618450; -96.29072578630, 32.88757682010; -96.29043695640, 32.88783856420; -96.29021473660, 32.88803918230; -96.28898762250, 32.88912027080; -96.28892071110, 32.88917801630; -96.28887164860, 32.88924735580; -96.28802188640, 32.89042285420; -96.28488606370, 32.89437511830; -96.28145029560, 32.89814579130; -96.27772928230, 32.90171870520; -96.27373894810, 32.90507853810; -96.27180336870, 32.90655908120; -96.27029016770, 32.90768169600; -96.26798312600, 32.90933346730; -96.26474342810, 32.91146467440; -96.26351249540, 32.91223529260; -96.26129110250, 32.91365865860; -96.25928416460, 32.91490633490; -96.25509793200, 32.91727764030; -96.25374718090, 32.91799526420; -96.25163781920, 32.91914104360; -96.25040063630, 32.91980056680; -96.24551380660, 32.92217362860; -96.24045318480, 32.92427184950; -96.23524047500, 32.92608622810; -96.22989803890, 32.92760897730; -96.22444879930, 32.92883356430; -96.21891613860, 32.92975473360; and -96.21356759520, 32.93034177510.

(H) [(G)] Existing CZs may be modified and additional CZs may be designated as necessary by the executive director as provided in §65.84 of this title (relating to Powers and Duties of the Executive Director).

(2) (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

The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C, 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; Subchapter E, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds, urban white-tailed deer removal, and trapping and transporting surplus white-tailed deer; Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter; Subchapters R and R-1, which authorize the commission to establish the conditions of a deer management permit for white-tailed and mule deer, respectively; and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.

§65.92. CWD Testing.

(a) – (i) (No change.)

(j) Except as provided by §65.99(j) of this title, (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities), deer [Deer] breeders shall report all deer mortalities that occur within a breeding facility within seven days of detection.

(k) Except as provided by §65.99(j) of this title or a herd plan, all[All] CWD test samples shall be submitted to an accredited testing laboratory within seven days of collection.

§65.95. Movement of Breeder Deer.

(a) – (c) (No change.)

(d) A breeding facility that is located in a Containment Zone established under the provisions of §65.81 of this title (relating to Containment Zones; Restrictions) may transfer breeder deer to another deer breeding facility or release facility located outside the CZ, provided:

(1) each facility involved in the transfer is designated MQ or is otherwise eligible under this subchapter to receive breeder deer at the time of the transfer;

(2) an ante-mortem test on rectal or tonsil tissue collected within the eight months immediately preceding the release has been returned with test results of "not detected"; and

(3) all deer transferred under the provisions of this subsection are at least six months of age at the time the test sample required by this subsection is collected.

(4) An ante-mortem test result of "not detected" submitted to satisfy the requirements of §65.92(d) of this title may be utilized a second time to satisfy the requirements of this paragraph, provided the test sample was collected as provided in paragraph (2) of this subsection.

§65.99. Breeding Facilities Epidemiologically Connected to Deer Infected with CWD; Positive Deer Breeding Facilities.

(a) — (i) (No change.)

(j) Upon notification by the department that CWD is suspected in a deer as a result of ante-mortem testing in a facility, the facility is automatically NMQ and the permittee shall:

(1) euthanize the positive deer within seven days of confirmation of the positive test result;

(2) submit post-mortem test samples from breeder deer euthanized under this subsection within one day of euthanasia, to include both ears and the identification tag required under Parks and Wildlife Code, Chapter 43, Subchapter L; and

(3) inspect the facility daily for mortalities; and

(A) immediately report each mortality to the department;

(B) immediately collect test samples from all test-eligible mortalities that occur

within the facility; and

(C) submit samples collected under this subsection for post-mortem testing within one business day of the discovery of the mortality.

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. 11
Presenter: Jason Estrella

Work Session
Request for Pipeline Easement – Jefferson County
Approximately 15.9 Acres at the J.D. Murphree Wildlife Management Area
Request Permission to Begin the Public Notice and Input Process
May 24, 2023

I. Executive Summary: Sempra Energy (Sempra) requests an easement across the J.D. Murphree Wildlife Management Area (WMA) for the construction and installation of a 42-inch liquid natural gas (LNG) pipeline as part of the Port Arthur Pipeline (PAPL) project.

II. Discussion: The J.D. Murphree WMA consists of approximately 25,500 acres of coastal marsh and open water within the Texas Chenier Plain and is adjacent to the Sabine Neches Waterway. The WMA is adjacent to one existing LNG export facility and another that is under construction. It is divided into the Big Hill Unit and Salt Bayou Unit. Sempra requests an easement for the PAPL project, which will cross both units.

III. Recommendation: TPWD staff requests permission to begin the public notice and input process.

Attachments – 3

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

Work Session Item No. 11
Exhibit A

Location Map for the J.D. Murphree Wildlife Management Area
Jefferson County

Work Session Item No. 11
Exhibit B

Vicinity Map for the J.D. Murphree Wildlife Management Area
Approximately 20 miles South of Beaumont

Work Session Item No. 11
Exhibit C

Location of Requested Easement
Requested Easement in Orange
J.D. Murphree Wildlife Management Area Outlined in Blue

Work Session Item No. 12
Presenter: Jason Estrella

Work Session
Request for Pipeline Easement – Jefferson County – Approximately 13.5 Acres at the J.D. Murphree Wildlife Management Area – Request Permission to Begin the Public Notice and Input Process
May 24, 2023

I. Executive Summary: Apex Pipeline LLC (Apex) requests an easement across the J.D. Murphree Wildlife Management Area (WMA) for the construction and installation of a 42-inch liquid natural gas (LNG) pipeline.

II. Discussion: The J.D. Murphree WMA consists of approximately 25,500 acres of coastal marsh and open water within the Texas Chenier Plain and is adjacent to the Sabine Neches Waterway. The WMA is adjacent to one existing LNG export facility and another that is under construction. It is divided into the Big Hill Unit and Salt Bayou Unit. Apex requests an easement that will cross both units.

III. Recommendation: TPWD 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

Work Session Item No. 12
Exhibit A

Location Map for the J.D. Murphree Wildlife Management Area
Jefferson County

Work Session Item No. 12
Exhibit B

Vicinity Map for the J.D. Murphree Wildlife Management Area
Approximately 20 miles South of Beaumont

Work Session Item No. 12
Exhibit C

Location of Requested Easement
Requested Easement in Yellow
J.D. Murphree Wildlife Management Area Outlined in Red

Work Session Item No. 13
Presenter: Jason Estrella

Work Session
Request for Pipeline Easement – Jefferson County
Approximately 27.6 Acres at the J.D. Murphree Wildlife Management Area
Request Permission to Begin the Public Notice and Input Process
May 24, 2023

I. Executive Summary: ONEOK NGL Pipeline, LLC (ONEOK) requests an easement across the J.D. Murphree Wildlife Management Area (WMA) for the construction and installation of two 20-inch liquid natural gas (LNG) pipelines.

II. Discussion: The J.D. Murphree WMA consists of approximately 25,500 acres of coastal marsh and open water within the Texas Chenier Plain and is adjacent to the Sabine Neches Waterway. The WMA is adjacent to one existing LNG export facility and another that is under construction. It is divided into the Big Hill Unit and Salt Bayou Unit. ONEOK requests an easement that will cross both units.

III. Recommendation: TPWD 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

Work Session Item No. 13
Exhibit A

Location Map for the J.D. Murphree Wildlife Management Area
Jefferson County

Work Session Item No. 13
Exhibit B

Vicinity Map for the J.D. Murphree Wildlife Management Area
Approximately 20 Miles South of Beaumont

Work Session Item No. 13
Exhibit C

Location of Requested Easement
Requested Easement in Yellow
J.D. Murphree Wildlife Management Area Outlined in Red

Work Session Item No. 16
Presenter: James Murphy

Work Session
Litigation Update
May 24, 2023

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.