Work Session

Wednesday, August 23, 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 May 24, 2023

Land and Water Plan

1. 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 
   • 2023 National Gold Medal Award for Excellence in Park and Recreation Management
   • U.S. Fish and Wildlife Service Southwest Region 2022 Annual Award Recipient – Jeff Raasch
   • Acquisition of Honey Creek Ranch
   • Bastrop Dam Repair
   • Dedication for Patrol Vessel Chris Wilson
   • Land and Water Resources Conservation and Recreation Plan – Timothy Birdsong

Financial

2. Financial Overview – Reggie Pegues (Action Item No. 1)
3. Fiscal Year 2022 and Fiscal Year 2023 Internal Audit Update and Proposed Fiscal Year 2024 Internal Audit Plan – Brandy Meeks (Action Item No. 2)

Natural Resources

4. Commission Policy on Use of Eminent Domain – Recommended Adoption of Proposed Policy – James Murphy (Action Item No. 3)
5. Boating and Waterways Advisory Committee – Request Permission to Publish Proposed Rules in the Texas Register – Cody Jones (Action Item No. 4)
6. Fish Pass Proclamation – Recommended Adoption of Proposed Changes – Les Casterline (Action Item No. 5)
7. Chronic Wasting Disease Detection and Response Rules – Recommended Adoption of Proposed Changes – Dr. Hunter Reed (Action Item No. 6)
8. Chronic Wasting Disease Detection and Response Rules Additional Provisions – Request Permission to Publish Proposed Changes in the Texas Register – Dr. Hunter Reed
9. Statewide Oyster Fishery Proclamation – Temporary Closure of Oyster Restoration Areas in Galveston Bay – Request Permission to Publish Proposed Changes in the Texas Register – Emma Clarkson
10. Implementation of Legislation During the 88th Texas Legislative Session – House Bill 1740 – Relating to the Issuance of State Parklands Passports to and a Waiver of Certain Fees for Certain Veterans, Active Duty Armed Forces Members, and Certain Family Members of a Person who Died while Serving in the United States Armed Forces – Recommended Adoption of Proposed Changes – Timothy Bradle (Action Item No. 7)
11. Implementation of Legislation During the 88th Texas Legislative Session – House Bill 2755 – Relating to the Minimum Instruction Requirement for the Boater Education Program by Texas Parks and Wildlife Department – Recommended Adoption of Proposed Changes – Cody Jones (Action Item No. 8)
12. Implementation of Legislation During the 88th Texas Legislative Session – Senate Bill 1839 – Relating to the Offense of Selling or Purchasing Shark Fins or Products Containing Shark Fins – Recommended Adoption of Proposed Rules – – Les Casterline (Action Item No. 9)

Land Conservation

13. Grant of Pipeline Easement – Jefferson County – Approximately 15.9 Acres at the J.D. Murphree Wildlife Management Area – Jason Estrella (Work Session and Executive Session) (Action Item No. 10)
14. Acquisition of Cultural Conservation Easement – Anderson County – Approximately 16 Acres at Big Lake Bottom Wildlife Management Area – Jason Estrella (Work Session and Executive Session) (Action Item No. 11)
15. Acquisition of Land – Cameron County – Approximately 42 Acres at the Ebony Unit of Las Palomas Wildlife Management Area – Jason Estrella (Work Session and Executive Session) (Action Item No. 12)
16. Acquisition of Land – Mitchell County – Approximately 500 Acres at Lake Colorado City State Park – Trey Vick (Work Session and Executive Session) (Action Item No. 13)
17. Grant of Utility Easement – El Paso County – Approximately 3 Acres at Franklin Mountains State Park – Trey Vick (Work Session and Executive Session) (Action Item No. 14) WITHDRAWN

Executive Session

18. Fairfield Lake State Park Update – James Murphy (Executive Session Only)
19. Litigation Update – James Murphy (Executive Session Only)

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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
August 23, 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:

1. Practice, Encourage, and Enable Science-Based Stewardship of Natural and Cultural Resources
2. Increase Access to and Participation in the Outdoors
3. Educate, Inform, and Engage Texas Citizens in Support of Conservation and Recreation
4. Employ Efficient, Sustainable, and Sound Business Practices

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Work Session Item No. 2
Presenter: Reggie Pegues

Work Session
Financial Overview
August 23, 2023

I.       Executive Summary: Staff will present a summary of the Fiscal Year (FY) 2024 Operating and Capital Budget, including information on the Conservation and Capital Account, Texas Parks and Wildlife Code section 11.032(c) deposit options regarding boat-related fees, and the Texas Parks and Wildlife Commission’s (Commission) Budget and Investment policies.

II.     Discussion: Staff will discuss the following with the Commission:

• Staff will present and discuss the FY 2024 Operating and Capital Budget, including the Conservation and Capital Account (5004);
• Staff will summarize the Commission’s Budget Policy and Investment Policy requirements;
• Staff will present the list of state parks that will serve as the basis for calculating the Legislative Budget Board performance measure “Number of State Parks in Operation” over the 2024-2025 biennium; and
• Staff will discuss Texas Parks and Wildlife Code section 11.032(c), which permissively allows Texas Parks and Wildlife Department (TPWD) to retain all boat-related fees in Fund 9, or to transfer up to 15 percent of those fees into Fund 64 on a monthly basis.

III.    Recommendation: Staff recommends that the Commission adopt the following motions:

Motion one: “The Executive Director is authorized to expend funds to operate TPWD in accordance with the proposed FY 2024 Agency Budget by Strategy (Exhibit A), the FY 2024 Operating and Capital Budget by Division/Object of Expense (Exhibit B), the Budget Policy (Exhibit C), and the Investment Policy (Exhibit D).”

Motion two: “The Commission approves the FY 2024-2025 Biennium State Parks List and Change Procedures (Exhibit E) and authorizes TPWD to adjust the listing as necessary for accurate reporting.”

Motion three: “The Commission approves retaining 100 percent of all boat registration, titling, and related fees collected during FY 2024 in Fund 9.”

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Work Session Item No. 2
Exhibit A

Fiscal Year 2024 Agency Budget by Strategy

Strategy	FY 2024
A.1.1. Wildlife Conservation	$ 36,778,304
A.1.2. Technical Guidance	9,292,666
A.1.3. Hunting and Wildlife Recreation	2,342,451
A.2.1. Inland Fisheries Management	16,638,472
A.2.2. Inland Hatcheries Operations	7,635,480
A.2.3. Coastal Fisheries Management	16,035,248
A.2.4. Coastal Hatcheries Operations	3,972,043
B.1.1. State Park Operations	97,603,014
B.1.2. Parks Minor Repair Program	11,209,946
B.1.3. Parks Support	6,741,460
B.2.1. Local Park Grants	40,804,930
B.2.2. Boating Access and Other Grants	12,669,974
C.1.1. Enforcement Programs	64,840,069
C.1.2. Texas Game Warden Training Center	3,098,738
C.1.3. Law Enforcement Support	3,733,773
C.2.1. Outreach and Education	2,974,505
C.2.2. Provide Communication Products	5,811,397
C.3.1. License Issuance	8,408,213
C.3.2. Boat Registration and Titling	1,960,169
D.1.1. Improvements and Major Repairs	72,401,513
D.1.2. Land Acquisition	32,243,352
D.1.3. Infrastructure Administration	7,910,410
D.1.4. Centennial Parks Conservation Fund*	1,000,000,000
E.1.1. Central Administration	10,774,304
E.1.2. Information Resources	18,412,398
E.1.3. Other Support Services	5,221,360
F.1.1. Salary Adjustments	10,431,341
Fringe Benefits	82,510,740
Estimated Unexpended Balances (UB)	361,795,515
Total	1,954,251,785

Method of Finance	FY 2024
General Revenue (GR)	$ 1,413,456,373
GR Ded-Game, Fish and Water Safety	198,490,110
GR Ded-State Parks	48,866,340
GR Ded-Other	11,849,328
Federal Funds	256,390,863
Other Funds	25,198,771
Total	$ 1,954,251,785

*Strategy D.1.4. Centennial Parks Conservation Fund includes $1 billion General Revenue (GR) contingent on voter approval of Senate Joint Resolution 74. Once approved, the $1 billion GR will be transferred out of TPWD to the Centennial Parks Conservation Fund outside the state treasury, to be used by TPWD for the creation and improvement of state parks per Senate Bill 1684. If not approved by the voters, the amounts will be reduced from TPWD’s budget.

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Work Session Item No. 2
Exhibit B

Fiscal Year 2024 Operating and Capital Budget by Division/Object of Expense

Division	Salaries & Other Personnel Costs	Operating	Grants	Capital Budget	Fringe Benefits	Total Budget	FTEs
Coastal Fisheries	10,721,852	6,393,752	0	766,817	4,353,182	22,235,603	190.0
Communications	5,109,567	3,317,713	0	15,500	1,773,006	10,215,786	68.0
Departmentwide*	13,764,137	1,028,284,392	0	0	0	1,042,048,529	-
Executive	3,471,935	332,221	0	0	1,147,594	4,951,750	36.0
Financial Resources	5,646,483	1,288,477	0	0	2,142,928	9,077,888	90.1
Human Resources	2,217,666	408,367	0	0	794,988	3,421,021	35.0
Information Technology	7,029,466	859,725	0	0	2,579,330	10,468,521	80.0
Infrastructure	7,277,997	796,041	1,760,910	25,000	2,670,524	12,530,472	90.0
Inland Fisheries	12,648,546	6,128,442	1,429,399	579,442	5,011,110	25,796,939	200.0
Law Enforcement	54,461,066	11,582,936	0	3,343,002	21,730,879	91,117,883	653.0
Legal	1,016,366	72,488	0	0	347,352	1,436,206	10.0
Local Parks	2,597,138	1,139,726	43,927,846	0	934,305	48,599,015	21.0
State Parks	73,364,258	27,518,585	0	13,028,370	32,552,839	146,464,052	1,354.8
Support Resources	2,087,061	3,549,039	0	0	792,074	6,428,174	31.0
Wildlife	19,942,156	13,965,576	4,948,349	312,161	5,680,629	44,848,871	302.0
Capital Construction	0	0	0	72,401,513	0	72,401,513	-
Capital Information Technology	0	0	0	10,414,047	0	10,414,047	-
Capital Land Acquisition	0	0	0	30,000,000	0	30,000,000	-
Total	221,355,694	1,105,637,480	52,066,504	130,885,852	82,510,740	1,592,456,270	3,160.9
Estimated UB						361,795,515
Total with UB						$ 1,954,251,785	3,160.9

*Departmentwide includes $1 billion General Revenue (GR) contingent on voter approval of Senate Joint Resolution 74. Once approved, the $1 billion GR will be transferred out of TPWD to the Centennial Parks Conservation Fund outside the state treasury, to be used by TPWD for the creation and improvement of state parks per Senate Bill 1684. If not approved by the voters, the amounts will be reduced from TPWD’s budget.

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Work Session Item No. 2
Exhibit C

BUDGET POLICY (CP-009)

It is the policy of the Commission to authorize the Executive Director or their designee to increase, decrease, or otherwise adjust the budget during the fiscal year based on revenue and expenditure information. Changes to the budget may include:

• Adjust the budget to bring unexpended balances forward from the prior fiscal year’s approved budgets.
• Adjust the budget for transfers between budgetary units, major expense categories, or line items.
• Adjust the budget to increase funds to allow payment of appraisal fees, witness fees, and investigation expenses on land acquisition and construction projects.
• Approve and/or execute contracts and agreements necessary in the daily operation of TPWD. Revenues derived from interagency agreements may be budgeted and expended.
• Adjust the budget for appropriated revenues, such as the sale of equipment, donations, concessions, escrow, refunds, insurance proceeds, and publications revenue, so long as the expenditures are in agreement with the stated program goals and there will be sufficient cash to cover the budgeted amounts during the relevant fiscal year.
• Approve and/or execute construction, repair, or renovation budgets, contracts, agreements, and change orders (if necessary) to complete a project. 
• Adjust the budget from one TPWD facility major repair or development project to another or from available revenue to cover increased project costs or changes in scope.
• Allocate super combo license revenue to the related stamp funds according to the documented methodology and authorize the related transfers of revenue to appropriate accounts.
• Adjust the budget to cover the costs of lawsuits or settlements if deemed to be in the best interest of TPWD.
• Adjust the budget to place a TPWD facility into reasonable operation when its condition poses a health or safety hazard or seriously hampers its ability to function.
• Authorize classification changes anytime during a fiscal year, provided that such changes have been thoroughly justified and funds are available.
• Increase the number of positions when new facilities are placed into operation and/or new programs are implemented, staying within the authorized full-time equivalency (FTE) limit.
• Adjust the budget to make capital expenditures for construction projects funded in part with proceeds of bonds issued by the Texas Public Finance Authority.
• Approve and/or execute the reimbursement of construction project costs with the proceeds of tax-exempt bonds issued by the Texas Public Finance Authority, pursuant to federal Internal Revenue Code guidelines.

Any budget adjustments that exceed a threshold of $250,000, excluding federal and bond funds, require the prior approval of the Chair, Vice Chair, or Commissioner designee through such means as a conference call or memo.

Donations or gifts exceeding $500 shall be accepted on a monthly basis by the Chair, Vice-Chair, or commissioner designee, with Commission acknowledgement of the acceptance of the donations at each scheduled Commission meeting.

Subject to notification of the Commission of any changes to previously discussed purposes or uses of funds, TPWD is authorized to use dedicated accounts and sub-accounts for purposes consistent with those outlined in relevant law including administrative rules as set forth in the Texas Administrative Code.

Review

The Commission shall review this policy at least annually.

             APPROVED this the 24^th day of August 2023.

In official recognition of the adoption of this resolution in a lawfully called public meeting of the Texas Parks and Wildlife Commission, we hereby affix our signatures this 24^th day of August, 2023.

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Work Session Item No. 2
Exhibit D

INVESTMENT POLICY (CP-016)

All funds paid to Texas Parks and Wildlife Department (TPWD) pursuant to the Parks and Wildlife Code §11.042 or allocated to TPWD pursuant to Tax Code §151.801 must be deposited in the treasury with two exceptions: the Operation Game Thief Fund and the Texas Park Development Fund (Parks and Wildlife Code §21.101). The Operation Game Thief Fund is held outside the treasury and, as authorized by Parks and Wildlife Code §12.201, is invested according to rules adopted by the Operation Game Thief Committee. Therefore, the investment of the Operation Game Thief Fund is not governed by this Investment Policy. Although not required, the Texas Park Development Fund is and will continue to be deposited in the treasury and invested by the Comptroller of Public Accounts.

Parks and Wildlife Code §11.065 requires the Commission to adopt rules for investment of the Lifetime License Endowment Account. The Lifetime License Endowment Account is and will continue to be deposited in the treasury and invested by the Comptroller of Public Accounts.

In addition, TPWD has established an account at the Texas Treasury Safekeeping Trust Company, an organization created by the Texas Legislature to invest and safeguard funds for the state and various subdivisions whose sole shareholder and director is the Comptroller of Public Accounts. [1] TPWD’s account at the Texas Treasury Safekeeping Trust Company is for the purpose of accepting donations of marketable securities which shall be held only until accepted by the Commission. Donations of marketable securities shall be sold promptly upon acceptance by the Commission and the proceeds shall be deposited into the treasury.

I.      Objectives of TPWD

• Suitability of the investment for TPWD requirements
• Preservation and safety of the principal
• Liquidity
• Marketability
• Diversification of the portfolio
• Yield
• TPWD funds shall be held in the state treasury and invested by the Comptroller of Public Accounts under Gov’t Code §404.024. 
• Mitigation funds distributed to TPWD shall be deposited in the state treasury and accounted for separately. 
• Bank accounts authorized by Gov’t Code §§403.241-403.252 and the General Appropriations Act (petty cash accounts and imprest accounts for the purchase of evidence and/or information and surveillance) should be either interest-bearing accounts or accounts with no fees. Any interest earned in excess of bank fees shall be deposited in the General Revenue Fund. The establishment of any petty cash or imprest bank accounts must be approved by the TPWD Chief Financial Officer (Signature and Approval Policy OP-03-03). Continuance of bank accounts is dependent upon timely and accurate records keeping and reporting.

II. Policy Guidelines 

   Texas Public Funds Investment Act: Investment Officer Designation and Reporting

• Pursuant to Gov’t Code §2256.004, the Texas Public Funds Investment Act (PFIA) does not apply to TPWD funds that are deposited into the state treasury and which are managed by the Comptroller of Public Accounts in accordance with Gov’t Code §404.024. 
• In the event that TPWD funds are deposited outside of the state treasury and become subject to the PFIA, the TPWD Executive Director, or the Executive Director’s designee, shall identify and designate an Investment Officer or Investment Officers (Gov’t Code §2256.005). 
• The designated TPWD Investment Officer(s) shall perform the functions and responsibilities required by the PFIA.
• The Investment Officer(s) shall attend investment training at least once each state fiscal biennium from a program recommended by the Texas Higher Education Coordinating Board.
• The Investment Officer(s) are required to disclose any personal business or familial relationship with a business organization offering to sell investments to TPWD.
• The Investment Officer(s) are required to provide a written copy of this Investment Policy to every business organization engaging in investment activity and must obtain written acknowledgement that the policy was received and reviewed, and that appropriate procedures and controls are in place to preclude unauthorized transactions.
• The Investment Officer(s) will ensure that all TPWD funds outside the state treasury held in bank accounts are insured by FDIC up to the FDIC deposit insurance limit, currently $250,000. If at any time deposits exceed the FDIC deposit insurance limit in any financial institution, the custodian of the affected account(s) is required to obtain collateralizations that meets state requirements to cover the amount exceeding the deposit insurance limit.
• The Investment Officer(s) shall prepare reports of investment transactions for all funds managed under the PFIA within 45 days of the end of each quarter and distribute them to the members of the Commission, the Executive Director, and the Chief Financial Officer, as required by Gov’t Code §2256.023. These quarterly reports shall comply with statutory requirements for content. 
• To the extent that the Texas Legislature modifies any provision of the PFIA that is applicable to TPWD’s funds, the Investment Officer(s) shall prepare a report summarizing those legislative changes to the PFIA and distribute it to the members of the Commission, the Executive Director, and the Chief Financial Officer within six months of the end of a regular legislative session.

III. Review

The Commission shall review this policy at least annually pursuant to Gov’t Code §2256.005.

[1] Texas Treasury Safekeeping Trust Company

TPWD jointly manages another Texas Treasury Safekeeping Trust Company account for the purpose of holding funds recovered under federal and state laws by the designated natural resource trustees for the State of Texas (TPWD, General Land Office, and Texas Commission on Environmental Quality) for restoration of natural resources lost or injured by the unauthorized discharge or release of oil or hazardous substances. A decision on use and any investment of these funds is exclusively the joint decision of the designated natural resource trustees and does not involve the Commission.

                  APPROVED this the 24^th day of August 2023.

In official recognition of the adoption of this resolution in a lawfully called public meeting of the Texas Parks and Wildlife Commission, we hereby affix our signatures this 24^th day of August 2023.

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Work Session Item No. 2
Exhibit E

Fiscal Year 2024-2025 Biennium State Parks List and Change Procedures

This list will serve as the starting point for calculating the performance measure “Number of State Parks in Operation” for the 2024-2025 biennium.

The Texas Parks and Wildlife Department is authorized to adjust this list as needed throughout the 2024-2025 biennium to reflect deletion, transfer, or addition of sites to the park inventory.

This list will be updated and presented to the Texas Parks and Wildlife Commission (Commission) for approval before the start of each biennium (every two years). Any adjustments made to this list during the 2024-2025 biennium will be presented to the Commission as part of the next state park listing (approval of the list for the 2026-2027 biennium).

Number	Name	County	Facility Type
1	Abilene	Taylor	State Park
2	Albert and Bessie Kronkosky	Bandera/Kendall	State Natural Area
3	Atlanta	Cass	State Park
4	Balmorhea	Reeves	State Park
5	Bastrop	Bastrop	State Park
6	Big Bend Ranch	Brewster/Presidio	State Park
7	Big Spring	Howard	State Park
8	Blanco	Blanco	State Park
9	Bonham	Fannin	State Park
10	Brazos Bend	Fort Bend	State Park
11	Buescher	Bastrop	State Park
12	Caddo Lake	Harrison	State Park
13	Caprock Canyons and Trailway	Briscoe/Floyd/Hall	State Park
14	Cedar Hill	Dallas	State Park
15	Chinati Mountains	Presidio	State Natural Area
16	Choke Canyon	Live Oak/McMullen	State Park
17	Cleburne	Johnson	State Park
18	Colorado Bend	Lampasas/San Saba	State Park
19	Cooper Lake	Delta/Hopkins	State Park
20	Copper Breaks	Hardeman	State Park
21	Daingerfield	Morris	State Park
22	Davis Hill	Liberty	State Park
23	Davis Mountains	Jeff Davis	State Park
24	Devils River	Val Verde	State Natural Area
25	Devil’s Sinkhole	Edwards	State Natural Area
26	Dinosaur Valley	Somervell	State Park
27	Eisenhower	Grayson	State Park
28	Enchanted Rock	Gillespie	State Natural Area
29	Falcon	Starr	State Park
30	Fort Boggy	Leon	State Park
31	Fort Leaton	Presidio	State Historic Site
32	Fort Parker	Limestone	State Park
33	Fort Richardson	Jack	State Park and Historic Site
34	Franklin Mountains	El Paso	State Park
35	Galveston Island	Galveston	State Park
36	Garner	Uvalde	State Park
37	Goliad	Goliad	State Park and Historic Site
38	Goose Island	Aransas	State Park
39	Government Canyon	Bexar	State Natural Area
40	Guadalupe River/Honey Creek	Comal/Kendall	State Park and State Natural Area
41	Hill Country	Bandera/Medina	State Natural Area
42	Hueco Tanks	El Paso	State Park and Historic Site
43	Huntsville	Walker	State Park
44	Inks Lake	Burnet	State Park
45	Kickapoo Cavern	Edwards/Kinney	State Park
46	Lake Arrowhead	Clay	State Park
47	Lake Bob Sandlin	Titus	State Park
48	Lake Brownwood	Brown	State Park
49	Lake Casa Blanca	Webb	State Park
50	Lake Colorado City	Mitchell	State Park
51	Lake Corpus Christi	San Patricio	State Park
52	Lake Livingston	Polk	State Park
53	Lake Mineral Wells and Trailway	Parker/Palo Pinto	State Park
54	Lake Somerville	Burleson/Lee	State Park
55	Lake Tawakoni	Hunt	State Park
56	Lake Whitney	Hill	State Park
57	Lockhart	Caldwell	State Park
58	Longhorn Caverns*	Burnet	State Park
59	Lost Maples	Bandera/Real	State Natural Area
60	Lyndon B. Johnson	Gillespie	State Park and Historic Site
61	Martin Creek Lake	Rusk	State Park
62	Martin Dies Jr.	Jasper/Tyler	State Park
63	McKinney Falls	Travis	State Park
64	Meridian	Bosque	State Park
65	Mission Tejas	Houston	State Park
66	Monahans Sandhills	Ward/Winkler	State Park
67	Mother Neff	Coryell	State Park
68	Mustang Island	Nueces	State Park
69	Old Tunnel	Kendall	State Park
70	Palmetto	Gonzales	State Park
71	Palo Duro Canyon	Armstrong/Randall	State Park
72	Palo Pinto Mountains	Palo Pinto/Stephens	State Park
73	Pedernales Falls	Blanco	State Park
74	Possum Kingdom	Palo Pinto	State Park
75	Powderhorn	Calhoun County	State Park
76	Purtis Creek	Henderson/Van Zandt	State Park
77	Ray Roberts Lake	Cooke/Denton/Grayson	State Park
78	San Angelo	Tom Green	State Park
79	Sea Rim	Jefferson	State Park
80	Seminole Canyon	Val Verde	State Park and Historic Site
81	Sheldon Lake	Harris	State Park
82	South Llano River	Kimble	State Park
83	Stephen F. Austin	Austin	State Park
84	Tyler	Smith	State Park
85	Village Creek	Hardin	State Park
86	World Birding Center (WBC)/Bentsen-Rio Grande Valley	Hidalgo	State Park
87	WBC/Estero Llano Grande	Hidalgo	State Park
88	WBC/Resaca de la Palma	Cameron	State Park

*     Not operated by TPWD

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Work Session Item No. 3
Presenter: Brandy Meeks

Work Session
Fiscal Year 2022 and Fiscal Year 2023 Internal Audit Update and Proposed Fiscal Year 2024 Internal Audit Plan
August 23, 2023

I.      Executive Summary: Staff will update the Texas Parks and Wildlife Commission (Commission) on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 2022 and FY 2023 Internal Audit Plans and ongoing or completed external audits. Staff will also provide the methodology used to develop the proposed FY 2024 Internal Audit Plan and recommend adoption of the motion to approve the proposed FY 2024 Internal Audit Plan.

II.     Discussion: Staff will discuss the following with the Commission:

• Staff will provide an update on the TPWD FY 2022 and FY 2023 Internal Audit Plans as well as a briefing of any external audits that have been recently completed and/or are ongoing;
• Staff will discuss the methodology used in the development of the proposed FY 2024 Internal Audit Plan; and
• Staff will recommend adoption of the motion to approve the proposed FY 2024 Internal Audit Plan.  

III.  Recommendation: Staff recommends that the Commission adopt the following motion:

“The Texas Parks and Wildlife Commission approves the Texas Parks and Wildlife Department FY 2024 Proposed Internal Audit Plan as listed in Exhibit A.”

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Work Session Item No. 3
Exhibit A

Texas Parks and Wildlife Department Fiscal Year 2024 Proposed Internal Audit Plan

Projects	Budgeted Hours
FY 2022 and FY 2023 Carryover Projects
Law Enforcement Offices Fiscal Control Audits (2)	100
Sea Center and Texas Freshwater Fisheries Center Point-of-Sale Inventory Advisory	450
Infrastructure Change Order Process Advisory	450
Audit of Selected Local Recreation Grants	450
Audit of Selected IT Systems and Processes 1 Texas Administrative Code (TAC) Ch. 202 Cybersecurity Audit Audit of TPWD Patch Management Processes	200 50
	1700
FY 2024 New Projects
Cloud Computing Cybersecurity Audit	500
Audit of External/Public Safety Program(s)	450
Fiscal Controls of Selected State Parks (5)	750
Fiscal Controls of Selected Law Enforcement Offices (9)	850
Follow-up of Internal and External Audit Recommendations	800
TPWD Internal Audit Peer Review	300
Special Projects, Investigations, Liaison Activities (BRITS rewrite)	350
Research and Beta Test State Park Continuous Monitoring Dashboard	300
Administrative	500
	4800
Total Hours	6500

List of Alternative Projects

1. Audit of TPWD’s Surplus Process
2. Audit of TPWD’s Minor Repair/Facilities Maintenance Process (INF)
3. Audit of TPWD Friends Group Oversight Processes
4. TPWD Records Retention Compliance Audit

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Work Session Item No. 8
Presenter: Dr. Hunter Reed

Work Session
Chronic Wasting Disease Detection and Response Rules Additional Provisions – Request Permission to Publish Proposed Changes in the Texas Register
August 23, 2023

I.       Executive Summary: Staff seeks permission to publish proposed amendments to rules governing chronic wasting disease (CWD) detection, response, and management, and deer breeder permits in the Texas Register for public comment. The proposed amendments are intended to function collectively to refine surveillance and investigation efforts as part of the agency’s effort to manage CWD and would:

• require ante-mortem (live-animal) testing of test-eligible deer prior to transfer from a breeding facility to another breeding facility;
• reproduce the statutory provisions governing the required permanent identification tags on breeder deer;
• provide for the transport of deer carcasses from CWD management zones to a final destination or taxidermist, provided a Texas Parks and Wildlife Department (TPWD)-issued check station receipt has been obtained;
• impose statewide carcass disposal measures;
• eliminate provisions allowing deer breeders to transfer fawns to external facilities for nursing purposes;
• impose a residency requirement on breeder deer as a condition of transfer to another breeding facility or to a release site;
• impose seven-day deadline for submission of CWD test samples for Trap, Transport and Process permits;
• prohibit the release of breeder deer prior to April 1 of the year following birth;
• remove the three-year sunset of provisions governing the ante-mortem testing of breeder deer prior to release;
• strengthen provisions governing the obligations of release-site owners in the event a release site becomes epidemiologically linked to a CWD-positive deer breeding facility; and
• provide for the suspension of Managed Lands Deer Program (MLDP) privileges for landowners who fail to comply with harvest, testing, and recordkeeping requirements at release sites epidemiologically linked to a CWD-positive deer breeding facility.

II.     Discussion: In response to the continued detection of CWD in deer breeding facilities and on release sites associated with CWD-positive deer breeding facilities, the Texas Parks and Wildlife Commission (Commission) in 2021 adopted more robust rules to increase the efficacy of TPWD’s CWD surveillance and response efforts. Those rules have been in effect for over a year, which is sufficient time for their efficacy to begin to be known. Within the last six months, there has been an unprecedented increase in CWD detections in deer breeding facilities and on release sites associated with deer breeding facilities.  In response to the magnitude and potential severity of the current outbreak, on July 24, 2023, TPWD adopted emergency rules (published in the August 11, 2023, issue of the Texas Register, citation unavailable at the time of the preparation of this item) to implement additional temporary measures to increase and aid surveillance efforts while rules could be developed for eventual Commission deliberation and adoption through the normal notice and comment process for rulemaking. The proposed amendments include the provisions currently in effect as a result of the emergency adoption on July 24, 2023.

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Work Session Item No. 8
Exhibit A

DISEASE DETECTION AND RESPONSE RULES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§65.88, 65.91, 65.92, 65.95, 65.97, and 65.99, concerning Disease Detection and Response, and 65.605, 65.608, and 65.611, concerning Deer Breeder Permits.

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

        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, scientific evidence suggests 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 critical to containing it on the landscape.

        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 on multiple release sites associated with CWD-positive 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). This year is the first full year of the applicability of those measures.

        In the last six months the department has encountered an unprecedented increase in CWD detections, which is directly attributable to the regulatory actions taken in December 2021 to tighten the agency’s CWD surveillance measures. Since that time, CWD has been detected in an additional 12 deer breeding facilities, two release sites associated with CWD-positive deer breeding facilities, and one free-ranging deer in a new area where CWD had not been previously detected. Department records indicate that within the last five years those breeding facilities transferred over 9,700 deer to other breeding facilities, release sites, and Deer Management Permit (DMP) sites. All those locations are therefore directly connected to the CWD-positive facilities and are subsequently of epidemiological concern. Additionally, 583 deer breeding facilities received deer from one or more of the directly connected breeding facilities, which means those facilities (referred to as “Tier 1” facilities) are indirectly connected to the positive facilities and are also of epidemiological concern because they have received exposed deer that were in a trace-out breeding facility.

        In response to the magnitude and potential severity of this situation, the department on July 24, 2023, filed emergency rules to require the ante-mortem testing of test-eligible deer prior to transfer from a breeding facility to another breeding facility and to prohibit the removal of required permanent identification for any reason other than provided by statute. Those measures are included in this proposed rulemaking.

        The proposed amendment to §65.88, concerning Deer Carcass Movement Restrictions, would streamline and simplify regulations governing the post-harvest transportation of deer taken by hunters in CWD management zones. Because CWD prions (the infectious agents that causes CWD) are known to be present in tissues of infected animals, especially brain, spinal cord and viscera, the department believes that care should be taken with respect to the treatment of carcasses of animals taken within a CWD management zone. Under current rule, a deer taken in a CWD management zone cannot be transported from the zone unless it has been processed as required by the section. The department has determined that the current rules can be modified to allow the movement of unprocessed carcasses from management zones to a final destination (the possessor’s permanent residence or cold storage/processing facility) or taxidermist, provided it has been first presented at a department check station for tissue sample removal, which will allow the department to conduct disease surveillance and provide a method for notifying hunters in the event that an animal tests positive for CWD. The proposed amendment would also impose statewide carcass disposal measures, to consist of disposal of all deer parts not retained for cooking, storage, or taxidermy purposes to be disposed of (directly or indirectly) at a landfill permitted by the Texas Commission on Environmental Quality to receive such wastes, by interment at a depth of no less than three feet below the natural surface of the ground and covered with at least three feet of earthen material, or by being returned to the property where the animal was harvested. The department has determined that in light of the recent spate of CWD detections in deer breeding facilities (which are extensively epidemiologically interconnected and the source of deer released at hundreds of locations across the state), a statewide carcass disposal rule will be beneficial by limiting and ideally eliminating the careless, haphazard, or inadequate disposal of potentially infectious tissues, thus mitigating the potential spread of CWD. 

        The proposed amendment to §65.91, concerning General Provisions, would eliminate an exception in that provision for nursery facilities. As noted in the discussion of the proposed amendment to §65.95, concerning Movement of Breeder Deer, the department is proposing to eliminate the practice of moving breeder deer from deer breeding facilities to external facilities for nursing purposes.

        The proposed amendment to §65.92, concerning CWD Testing, would conform an internal citation in subsection (b) of that section to comport it with proposed changes to other sections effected by this rulemaking.

        The proposed amendment to §65.95, concerning Movement of Breeder Deer, would alter the section to provide an internal reference, terminate the current provisions applicable to nursery facilities, implement new provisions regarding the testing of breeder deer being transferred between breeding facilities, impose a residency requirement on breeder deer as a condition of transfer to another breeding facility  or to a release site, remove an internal three-year limitation on the effectiveness of provisions governing the release of breeder deer, strengthen provisions governing the obligations of release-site owners in the event that a release site is epidemiologically linked by trace-out to a positive breeding facility, prohibit the release of breeder deer prior to April 1 of the year following birth, and provide for the suspension of participation in Managed Lands Deer Program activities for landowners who fail to comply with provisions applicable to trace-out release sites.

        Current rules require a breeder deer to be the subject of an ante-mortem test (a live-animal test) before it can be transferred elsewhere for purposes of release. The proposed amendment would expand this requirement to apply to transfers between deer breeding facilities. The department has determined that in light of the spate of recent detections of CWD in multiple deer breeding facilities, it is not only prudent, but imperative to test all breeder deer before they are moved between deer breeding facilities, which is intended to impose a testing protocol capable of providing an acceptable probability of detecting CWD if it exists in any given breeding facility.

        For similar reasons, the proposed amendment would eliminate the practice of transferring fawn deer from deer breeding facilities to external facilities for nursing purposes. The practice was considered to be an acceptable risk prior to the emergence of CWD; however, given the steady and increasing discoveries of CWD in deer breeding facilities across the state, the department has determined that the practice should be stopped.

        The proposed amendment would impose a residency requirement for deer within deer breeding facilities in order to provide a minimum period of exposure to other deer within the facility, which will facilitate the department’s ability to more accurately assess whether CWD exists in a facility, as well as to reduce the probability of transmission of the disease to additional facilities by transfer of deer that have recently been infected but have yet to reach the stage of disease progression that allows the disease to be detectible through approved disease testing methodologies.

        The proposed amendment would impose new requirements for release sites that are epidemiologically connected to deer breeding facilities where CWD has been detected. Under current rule, the landowner of a release site that is epidemiologically connected to a positive deer breeding facility is required to test either 100 percent of all hunter-harvested deer at the release site property or one hunter-harvested deer per released deer (if authorized by a herd plan), whichever value is greater. Release site owners are also required by rule to maintain a harvest log. The department has determined that regulatory compliance at release sites has been problematic, as some release site owners have failed to conduct the required testing or maintain harvest logs as required. Although the department prohibits additional releases of deer at such sites unless approved by a herd plan, the epidemiological value of the animals at a trace-out release site is significant. The recent detections mark a dramatic increase in number and distribution of CWD-positive facilities across the state since 2020. Records indicate 367 trace release sites have received deer from these positive facilities and are of epidemiological concern.  Although the owners of trace release sites are offered herd plans and placed under a hold order, herd plans do not require harvest on that property, only that if a deer is harvested a CWD sample must be collected and tested. The lack of harvest leaves the department in a precarious situation to mitigate potential spread of CWD to naïve areas. Timely removal of trace animals is critically important for CWD management. Therefore, the department has determined that it is necessary to require all trace deer at trace-out release sites to be removed and tested within 60 days of notification by the department that the site has been confirmed as a trace-out release site. In addition, the proposed amendment would eliminate the current provision allowing an alternative to 100 percent testing of hunter-harvested deer on trace-out release sites and require testing of all hunter-harvested deer until a sufficient number and distribution of samples has been achieved that would provide statistical confidence that if CWD were present at a certain prevalence on the release site, it would be detected. The proposed amendments would enhance the department’s ability to more quickly assess whether exposed deer transferred from CWD-positive deer breeding facilities have spread CWD to trace-out release sites.

        The proposed amendment also would eliminate current subsection (c)(6)(E), which imposed a three-year period of effectiveness for the provisions of paragraph (6). In a rulemaking in 2021 (46 TexReg 8724), the commission imposed a three-year period of effectiveness for ante-mortem testing of breeder deer prior to release, with the understanding that should continuation of the requirement be determined to be necessary, that decision would be made as needed in the future. As noted previously in this preamble, there has been an unprecedented significant increase in the detection of CWD within deer breeding facilities and some release sites associated with deer breeding facilities recently, which not only necessitates the continuation of the provisions of paragraph (6), but to do so indefinitely.

        The proposed amendment also would provide that the owner of a release site that is not in compliance with the applicable provisions of Chapter 65, Subchapter B, Division 2 is ineligible for enrollment or continued participation in the Managed Lands Deer Program (MLDP) under Chapter 65, Subchapter A. The MLDP is a conservation program that offers special privileges to participants in exchange for conducting beneficial management actions. The department reasons that an owner of a trace-out release site who is unwilling to comply with CWD management provisions should not be afforded the privilege of participation in the program.

        Finally, the proposed amendment would prohibit the release of breeder deer prior to April 1 of the year following the year in which the breeder deer is born, which is necessary to ensure that only breeder deer bearing permanent identification are released at release sites, which is necessary to facilitate expedited removal and testing in epidemiological investigations.

        The proposed amendment to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit, would require tissue samples collected for the issuance of a TTP (Trap, Transfer, and Process) permit to be submitted within seven days of collection. One of the recent detections of CWD occurred in a deer that was trapped in Bexar County under the provisions of a TTP permit. The TTP permit is used to remove surplus deer in situations in which hunting is impractical or unfeasible, such as in urban areas where discharge of firearms is prohibited. Typically, a TTP permit allows trapping activities between October 1 and March 31, and current rules require CWD test results to be submitted by May 1 following completion of permitted activities.; however, there are no requirements on how quickly those CWD samples must be submitted to the lab for testing. The department has determined that in light of the detection of CWD in TTP deer, it is necessary to require tissue samples to be submitted within seven days of collection, which will provide for quicker department response in the event of detection.

        The proposed amendment to §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, would alter the timeframes for tissue sample collection for Category B facilities, and eliminate regulations regarding nursing facilities. Effective epidemiological investigations depend on specificity of time and place. Trace herds need to be evaluated in a timely fashion, and, historically, whole-herd testing requirements have been inconsistent in the timeliness of testing. Furthermore, some breeding facilities in which the date of last known exposure occurred within the 18 months prior to epidemiological connection have either not conducted or not submitted tests. The proposed amendments would create a more efficacious timeline for compliance with collection and submission of required ante-mortem testing samples for Category B breeding facilities (facilities in which not all deer of epidemiological concern are available) to clear epidemiologically linked herds in a timelier fashion. In addition, the proposed amendments would remove provisions applicable to nursing facilities for reasons discussed elsewhere in this preamble.

        The proposed amendments to §65.605, concerning Holding Facility Standards and Care of Deer, and §65.608, concerning Annual Reports and Records, would remove references to nursing facilities for reasons discussed elsewhere in this preamble.

        The proposed amendment to §65.611, concerning Prohibited Acts, would prohibit the removal of identification tags on breeder deer except as specifically authorized by statute. Parks and Wildlife Code, §43.3561 stipulates that not later than March 31 of the year following the year in which a breeder deer is born, the breeder deer must be identified by placing a tag in one ear. Section 43.3561 also requires deer breeders to immediately replace an identification tag that has been dislodged, damaged, or removed by means other than human agency and allows the removal of a tag only for the purpose of immediately replacing the tag with a tag that meets the requirements of Parks and Wildlife Code, §43.3561. Faithfulness to the statute will increase the ability of the department and release site owners to quickly identify and remove specific deer from release sites for testing and therefore will expedite epidemiological investigations. In addition, the proposed amendments would remove provisions applicable to nursing facilities for reasons discussed elsewhere in this preamble.

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 will be adverse economic impact on persons required to comply with the rules as proposed.

        The proposed amendment to §65.88 would impose carcass disposal restrictions on every person who harvests or possesses deer after harvest anywhere in the state; however, those costs should be minimal. For persons who process deer at the location where the harvest occurred, there is no cost of compliance, as the rules would allow parts of the deer not retained for cooking, storage, or taxidermy purposes to be left at the harvest location. Similarly, there would be no cost of compliance for persons who transport carcasses to a cold storage/processing facility or taxidermist, as disposal of remains following such activities is a normal process for such entities. For persons who transport carcasses to the possessor’s final residence, there will be no additional cost of compliance if the remains following processing are disposed of indirectly via a solid waste disposal service that transports the wastes to a permitted landfill. The remaining three options under the amendment as proposed: return of remains to the harvest location, interment at the cost of the possessor, and direct transport to a landfill, could result in an adverse economic impact as a result of compliance. The cost of returning unwanted deer parts to the location of harvest would consist of the cost of fuel, which could vary, depending on the distance travelled but, in most cases would be less than $200. The cost of interment could vary as well. For a person who manually excavates a site meeting the requirements of the proposed amendment or has access to mechanized excavation equipment, there would be no cost of compliance; thus, any costs associated with this option would be associated with rental or leasing fees for mechanized excavation equipment, which the department estimates at approximately $50 per hour. For deer parts transported directly to a landfill, the cost of compliance would be the fee charged by the landfill for carcass disposal, which also varies from facility to facility; however, the department estimates the probable cost per animal carcass to be $20 to $100. The department notes that most if not all hunters will either process their deer at the harvest location or transport the deer to a final destination where the remains will be collected and transported to a landfill by a contracted waste disposal service or municipal utility; therefore, there are no-cost options available to virtually every person required to comply.

        There will be a cost of compliance to persons affected by the proposed amendment to §65.95, which would require the owner of a release site confirmed to be epidemiologically connected to a CWD-positive deer breeding facility to remove all trace deer and subject them to post-mortem CWD testing. Legally there can be no cost for removing deer from a release site (hunting for hire, i.e., paying hunters to remove deer, is unlawful under Parks and Wildlife Code, §62.006) other than for the ammunition used to dispatch the animal; thus, landowners must either rely upon hunters to remove released breeder deer or do it themselves; therefore, the cost of compliance with the amendment as proposed would be the cost of post-mortem CWD testing. The cost of CWD testing administered by the Texas A&M Veterinary Medicine Diagnostic Lab (TVMDL is a minimum of $27, to which is added an $8 accession fee (which may cover multiple samples submitted at the same time). If a whole head is submitted to TVDML there is an additional $20 sample collection fee, plus a $20 disposal fee. Thus, the fee for testing would be $35, plus any veterinary cost (which the department cannot quantify, because practice models vary widely across the state). The fee for submitting an entire head for testing would be $75.

        (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.

        Government Code, §2006.001(1), defines a small or micro-business as a legal entity "formed for the purpose of making a profit" and "independently owned and operated." A micro-business is a business with 20 or fewer employees. A small business is defined as a business with fewer than 100 employees, or less than $6 million in annual gross receipts. Department data indicate that there are 769 permitted deer breeders in Texas as of the preparation of this analysis. Although the department does not require deer breeders to file financial information with the department, the department believes that most if not all deer breeders would qualify as a small or micro-business. Since the rules as proposed would require deer breeders to subject all deer to ante-mortem testing prior to transfer to another deer breeder, there will be an adverse impact on deer breeders. For all permittees, the adverse economic impact of the proposed rules would consist of testing costs. The number of transfers conducted between individual deer breeders can vary greatly. Some deer breeders do not engage in the practice. Other deer breeders transfer many hundreds of deer per year. Department data indicate that on average, most transfers involve 50 or fewer deer.

        Under the Veterinary Practice Act, the samples necessary for ante-mortem testing can only be obtained by a licensed veterinarian. Because veterinary practice models vary significantly (flat rates, graduated rates, included travel costs, herd call rates, sedation costs, etc.) in addition to pricing structures determined by the presence or absence of economic competition in different parts of the state, the cost of ante-mortem testing is difficult to quantify; however, based on anecdotal information and an informal survey of knowledgeable veterinarians, the department estimates the cost of tonsillar or rectal biopsies at approximately $70-200 to as much as $350 per deer. It is important to note that ante-mortem procedures for CWD testing are relatively new, but the number of veterinarians with the training and expertise to perform them reliably is increasing; nevertheless, the fee structure for such procedures can best be described as still evolving.

        Cold storage/processing facilities and taxidermists affected by the carcass disposal requirements of the proposed amendments may also qualify as small or micro-businesses. Because all such entities are not regulated there is no way to accurately assess how many of them there might be, but the department assumes there are many hundreds if not thousands. The department has determined that the adverse economic impacts of compliance with the rules as proposed would be identical to the cost of compliance for individuals affected by the proposed rules, discussed in an analysis earlier in this preamble.

        Several alternatives were considered to achieve the goals of the proposed rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.

        One alternative was to do nothing. This alternative was rejected because the presence of CWD in breeding facilities and free-ranging populations presents an actual, direct threat to free-ranging and captive cervid populations and the economies that depend upon them. The repeated additional discoveries of CWD in captive and free-range populations indicates that additional measures are necessary to prevent the spread of CWD from locations where it may exist. Therefore, because the department has a statutory duty to protect and conserve the wildlife resources of the state and current rules do not achieve the necessary level of vigilance needed to detect the presence and/or spread of CWD between breeding facilities, this alternative was rejected.

        Another alternative would be an absolute prohibition on the movement of deer within the state for any purpose. While this alternative would significantly reduce the potential spread of CWD, it would deprive deer breeders of the ability to engage in the business of buying and selling breeder deer. Therefore, this alternative was rejected because the department determined that it placed an avoidable burden on the regulated community.

        Another alternative would be imposing less stringent testing requirements. This alternative was rejected because the testing requirements in the proposed rules reflect mathematical models aimed at higher confidence than is possible under current disease-testing requirements to determine that CWD is or is not present. Less stringent testing requirements would reduce confidence and therefore impair the ability of the department to respond in the event that CWD actually is present. Less stringent testing requirements also could result in the spread of CWD to additional breeding facilities, which would be prohibited from transferring deer, which would, in turn, result in the total loss of sales opportunity. The department also believes that enhanced testing measure are necessary to provide assurance to the hunting public, private landowners, and the regulated community that wildlife resources are available for the use and enjoyment of present and future generations.

        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) create a new regulation (by imposing statewide carcass disposal restrictions, prohibiting the release of breeder deer prior to the April 1 of the year following birth, and conditioning participation in the MLDP program on compliance with release-site testing and recordkeeping requirements);

                 (6) expand an existing regulation (by requiring breeder to be tested prior to transfer to other breeding facilities and imposing minimum residency requirements for breeder deer), but will otherwise not limit or repeal an existing regulation;

                 (7) not increase the number of individuals subject to regulation, but will decrease the number of individuals subject to regulation by prohibiting the transfer of fawn deer from deer breeding facilities to external facilities for nursing purposes; 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 Dr. Hunter Reed, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (830) 890-1230 (email: jhunter.reed@tpwd.texas.gov); or via the department’s website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, §42.0177, 42.0177, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, or final processing requirements or provisions of §§42.001, 42.018, 42.0185, 42.019, or 42.020, or other similar requirements or provisions in Chapter 42; 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 42, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.

6. Rule Text.

        §65.88. Deer Carcass Movement and Disposal Restrictions.

                 (a) Except as provided in this section, no person may[:]

                         [(1)] transport into this state or possess any part of a susceptible species from a state, Canadian province, or other place outside of Texas where CWD has been detected in free-ranging or captive herds[; or]

                         [(2) transport or cause the transport of any part of a susceptible species from a property within a CZ or SZ].

                 (b) Subsection (a) of this section does not apply to susceptible species processed in accordance with this subsection, provided the applicable requirements of subsections (e) – (f)[(c) — (e)] of this section have been met:

                         (1) meat that has been cut up and packaged (boned or filleted);

                         (2) a carcass that has been reduced to quarters with no brain or spinal tissue present;

                         (3) a cleaned hide (skull and soft tissue must not be attached or present);

                         (4) a whole skull (or skull plate) with antlers attached, provided the skull plate has been completely cleaned of all internal soft tissue;

                         (5) finished taxidermy products;

                         (6) cleaned teeth; or

                         (7) tissue prepared and packaged for delivery to and use by a diagnostic or research laboratory.

                 (c) Except as may be otherwise prohibited by this subchapter or a quarantine, hold order, or herd plan issued by TAHC, the carcass of a susceptible species or part of a susceptible species killed in this state may be transported from the location where the animal was killed to a final destination. Following final processing at a final destination, the parts of the animal not retained for cooking, storage or taxidermy purposes shall be disposed of only as follows:

                         (1) by transport, directly or indirectly, to a landfill permitted by the Texas Commission of Environmental Quality to receive such wastes;

                         (2) interment at a depth of no less than three feet below the natural surface of the ground and covered with at least three feet of earthen material; or

                         (3) returned to the property where the animal was harvested for disposal.

                (d) No person may transport a susceptible species harvested in a CZ or SZ from the CZ or SZ to any destination unless it is first presented at the nearest department-designated check station. At the check station, a check-station receipt shall be obtained, which shall remain with the animal until it reaches a final destination.

                 (e) It is an offense for any person to dispose of those parts of an animal that the possessor does not retain for cooking, storage, or taxidermy purposes except as follows:

                         (1) by transport, directly or indirectly, to a landfill permitted by the Texas Commission of Environmental Quality to receive such wastes; or

                         (2) interment at a depth of no less than three feet below the natural surface of ground and covered with at least three feet of earthen material; or

                         (3) returned to the property where the animal was harvested.

                 [(c) For susceptible species harvested in a CZ or SZ, the provisions of subsection (b) of this section are applicable only if the susceptible species is processed within the CZ or SZ where the susceptible species was harvested, except for the transport of an intact head to a designated check station. The head of a susceptible species transported to a designated check station under the provisions of this subsection that is not taken to a taxidermist under the provisions of subsection (f) of this section must be:]

                         [(1) returned to the property where it was harvested for disposal; or]

                         [(2) disposed of in a landfill permitted by Texas Commission on Environmental Quality (TCEQ).]

                 [(d) A susceptible species harvested in a CZ or SZ and processed in accordance with the provisions of subsections (b) and (c) of this section may be transported from the CZ or SZ, provided it is accompanied by a department-issued check-station receipt, which shall remain with the susceptible species until it reaches a final destination.]

                 (f) The skinned or unskinned head of a susceptible species from a CZ or SZ,[other] state, Canadian province, or other place outside of Texas where CWD has been detected in free-ranging or captive herds may be transported to a taxidermist for taxidermy purposes, provided all brain material, soft tissue, spinal column and any unused portions of the head are disposed of prior to being transported to Texas, or disposed of in a landfill in Texas permitted by TCEQ to receive such wastes.

        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, §42.0177, 42.0177, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, or final processing requirements or provisions of §§42.001, 42.018, 42.0185, 42.019, or 42.020, or other similar requirements or provisions in Chapter 42; 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 42, Chapter 43, Subchapters C, E, L, R, R-1, and Chapter 61.

        §65.91. General Provisions.

                 (a) — (d) (No change.)

                 (e) No[Except as provided in §65.99(i) of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD), no] person may transfer deer to or from a facility that has been designated NMQ by the department unless specifically authorized by the department for the holder of a scientific research permit when the proposed research is determined to be of use in advancing the etiology of CWD in susceptible species.

                 (f) – (i) (No change.)

        §65.92. CWD Testing.

                 (a) (No change.)

                 (b) Except as provided in §65.95(c)(6)[§65.95(b)(6)] of this title (relating to Movement of Breeder Deer) or subsection (d) of this section, an ante-mortem CWD test is not valid unless it is performed by an accredited laboratory on retropharyngeal lymph node, rectal mucosa, or tonsillar tissue with at least six lymphoid follicles collected within eight months of submission by a licensed veterinarian authorized pursuant to statutes and regulations governing the practice of veterinary medicine in Texas and regulations of the TAHC from a live deer that:

                         (1)- (2) (No change.)

                 (c) – (k) (No change.)

        §65.95. Movement of Breeder Deer.

                 (a) General. Except as otherwise provided in this division, a breeding facility may transfer breeder deer under a transfer permit that has been activated and approved by the department to:

                         (1) another breeding facility as provided in subsection (b) of this section;

                         (2) an approved release site as provided in subsection (c)[(b)] of this section; or

                         (3) a DMP facility (however, deer transferred to DMP facilities cannot be recaptured and must be released as provided in the deer management plan)[; or]

                         [(4) a registered nursing facility, provided:]

                                  [(A) the deer are less than 120 days of age;]

                                  [(B) the facility from which the deer are transferred is MQ at the time of transfer; and]

                                  [(C) no deer from any other breeding facility are or have been present in the nursing facility during the reporting year in which the transfer occurs.]

                                  [(D) A registered nursing facility is prohibited from accepting deer from more than one breeding facility in one reporting year].

                                  [(E) No person may possess deer older than 120 days of age in a nursing facility].

                 (b) Transfer From Breeding Facility to Breeding Facility. A breeder deer may be transferred from one breeding facility to another breeding facility only if: 

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

                         (2) the deer is at least six months of age at the time the test sample required by this subsection is collected; and

                         (3) the deer has been in the facility for at least six continuous months prior to being tested under this subsection.

                         (4) An ante-mortem test result of "not detected" submitted to satisfy the requirements of §65.92(d) of this title (relating to CWD Testing) may be utilized a second time to satisfy the requirements of this subsection, provided the test sample was collected as provided in paragraph (1) of this subsection. 

                         (5) A facility from which deer are transferred in violation of this subsection is automatically NMQ and any further transfers are prohibited until the permittee and the owner of the destination facility have complied with the testing requirements of the department, based on an epidemiological assessment as specified in writing. 

                 (c)[(b)] Release Sites; Release of Breeder Deer.

                         (1) – (5) (No change.)

                         (6) No person may transfer a breeder deer to a release facility or cause or allow a breeder deer to be transferred to a release facility unless:

                                  (A) (No change.)

                                  (B) the deer is at least six months of age at the time the test sample required by this paragraph is collected; and

                                  (C) the deer has been in the facility for at least six continuous months prior to being tested under subparagraph (A) of this paragraph.

                                  (D)[(C)] 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 subparagraph (A) of this paragraph.

                                  (E)[(D)] A facility from which deer are transferred in violation of this paragraph becomes automatically NMQ and any further transfers are prohibited until the permittee and the owner of the release site have complied with the testing requirements of the department, based on an epidemiological assessment as specified in writing.

                                  [(E) The provisions of this paragraph cease effect three years from the effective date of this section].

                 (d)[(c)] Trace-out Release Site.

                         (1) A release site is a trace-out release site if it has:

                                  (A) received deer directly or indirectly from a positive breeding facility; and

                                  (B) it has not been released from a hold order or quarantine related to activity described in subparagraph (A) of this paragraph.

                         (2) The landowner of a trace-out release site must:

                                  (A) within 60 days of notification by the department that trace-out release status has been confirmed, remove every trace deer at the release site, either by lawful hunting or as specifically authorized in writing by the department (or both), and submit post-mortem CWD samples for each deer within one day of mortality; and

                                  (B) submit post-mortem CWD test results for [one of the following values, whichever represents the greatest number of deer tested:]

                                  [(A)] 100 percent of all hunter-harvested deer until the department is confident that CWD is not present at the release site[;] or

                                  [(B) one hunter-harvested deer per liberated deer released on the release site between the last day of lawful hunting on the release site in the previous hunting year and the last day of lawful hunting on the release site during the current hunting year; provided, however, this minimum harvest and testing provision may only be substituted] as prescribed in a herd plan.

                         (3) (No change.)

                 (f) The release of breeder deer prior to April 1 of the year following the year in which the breeder deer is born is prohibited.

                 (g) The owner of a release site that is not in compliance with applicable provisions of this division is ineligible for enrollment or continued participation in the Managed Lands Deer Program under Subchapter A of this chapter.

        §65.97. Testing and Movement of Deer Pursuant to a Triple T or TTP Permit.

                 (a) – (b) (No change.)

                 (c) Testing Requirements for TTP Permit.

                         (1) "Not detected" test results for at least 15 test-eligible deer from the trap site must be submitted.

                         (2) Sample tissues required by this subsection must be submitted within seven days of collection.

                         [(2) The landowner of a trace-out release site must submit CWD test results for 100% of the deer harvested pursuant to a TTP permit, which may include the samples required under paragraph (1) of this subsection.]

                         (3) Test results related to a TTP permit must be submitted to the department by the method prescribed by the department by the May 1 immediately following the completion of permit activities.

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

                 (a) – (d) (No change.)

                 (e) Category B trace-out breeding facility.

                         (1) A Category B facility is a trace-out breeding facility in which less than 100% of the trace deer that department records indicate were received by the facility are for whatever reason (including but not limited to transfer, release, or escape) available for testing.

                         (2) Immediately upon notification by the department of Category B status; a facility is automatically NMQ and the permittee shall:

                                  (A) – (D) (No change.)

                                  (E) conduct ante-mortem testing of all test-eligible deer in the facility as specified in the following:

                                          (i) for a facility for which the date of last known exposure is within the immediately preceding 18 months, within 60 days of notification by the department of Category B status:

                                                  (I) — (II) (No change.)

                                          (ii) for a facility for which the date of last known exposure is not within the immediately preceding 18 months and not at a time prior to the immediately preceding 36 months: within 60 days of notification by the department of Category B status, [collect and] submit tonsil biopsy samples collected no earlier than 24 months from the date of last known exposure; and

                                          (iii) for a facility for which the date of last known exposure occurred at a time after the immediately preceding 36 months: within 60 days of notification by the department of Category B status,[collect and] submit rectal or tonsil biopsy samples collected no earlier than 36 months from the date of last known exposure.

                         (3) – (6) (No change.)

                 (f) – (h) (No change.)

                 [(i) Nursing facilities.]

                         [(1) Notwithstanding NMQ status, deer less than 120 days of age in any Category A, Category B, trace-in, and or Tier 1 facility may be transferred to a registered nursing facility, provided:]

                                  [(A) the facility from which the deer are transferred was MQ at the time the facility was designated Category A, Category B, trace-in, or Tier 1; and]

                                  [(B) no deer from any other breeding facility are or have been present in the nursing facility during the current reporting year.]

                         [(2) A registered nursing facility is prohibited from accepting deer from more than one breeding facility in one reporting year.]

                         [(3) No person may possess deer older than 120 days of age in a nursing facility.]

        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 L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter.

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

        §65.605. Holding Facility Standards and Care of Deer.

                 (a) The entire perimeter fence of a facility containing breeder deer, including [nursing and] medical facilities, shall be no less than seven feet in height, and shall be constructed of department-approved net mesh, chain link or welded wire that will retain breeder deer. An indoor facility is acceptable if it meets the standards described in this section and provides permanent access to an outdoor environment that is sufficient for keeping the breeder deer in captivity.

                 (b) – (d) (No change.)

        §65.608. Annual Reports and Records.

                 (a) (No change.)

                 (b) A person other than a deer breeder holding breeder deer for [nursing,] breeding, or health care purposes shall maintain and, upon request, provide copies of transfer permits indicating the source of all breeder deer in the possession of that person.

        §65.611. Prohibited Acts.

                 (a) – (c) (No change.)

                 [(d) Except as expressly authorized in writing by the department, no person may possess a breeder deer in a nursing facility beyond 120 days following the deer’s birth.]

                 (e) – (l) (No change.)

                (m) Except as provided by subsection (n) of this section, it is an offense for any person at any time for any reason to remove an identification tag prescribed by Parks and Wildlife Code, §43.3561, from a breeder deer except to immediately replace it with an identification tag meeting the requirements of Parks and Wildlife Code, §43.3561(c) or (h). 

                 (n) A breeder deer that has been released is no longer a breeder deer; however, it is an offense for any person to remove the identification tag required by Parks and Wildlife Code, §43.3561, from such deer except as a consequence of reducing the deer to possession following lawful take under a hunting license.

        This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency’s authority.

        Issued in Austin, Texas, on

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Work Session Item No. 9
Presenter: Emma Clarkson

Work Session
Statewide Oyster Fishery Proclamation – Temporary Closure of Oyster Restoration Areas in Galveston Bay
Request Permission to Publish Proposed Changes in the Texas Register
August 23, 2023

I.      Executive Summary: Staff seeks permission to publish proposed changes to the Statewide Oyster Fishery Proclamation in the Texas Register for public comment. The proposed amendment would temporarily close 64.4 acres across two restoration sites in Galveston Bay for two harvest seasons in order to conduct oyster habitat restoration activities and allow oysters to repopulate these areas and reach market size.

II.     Discussion: Under Texas Parks and Wildlife Code section 76.301, the Texas Parks and Wildlife Commission (Commission) is authorized to regulate the taking, possession, purchase, and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters. Additionally, Texas Parks and Wildlife Code section 76.115 authorizes the Commission to close an area to the taking of oysters when it finds that the area is being overworked or damaged, or the area is to be reseeded or restocked.

Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (like Hurricane Ike in September 2008 and Hurricane Harvey in August 2017), as well as high harvest pressure. To date, Texas Parks and Wildlife Department’s oyster habitat restoration efforts have resulted in a total of approximately 1,709 acres of oyster habitat returned to productive habitat within this bay. The proposed closures are expected to result in the restoration of approximately 30 acres of productive oyster habitat.

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Work Session Item No. 9
Exhibit A

STATEWIDE OYSTER FISHERY PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

        The proposed amendment would temporarily prohibit the harvest of oysters for two years within the boundary of the restoration area on two reefs: one site in Conditionally Approved Area TX-7 in Galveston Bay (East Redfish reef, approximately 42.6 acres), and one site in Conditionally Approved Area TX-6 in Galveston Bay (North Dollar Reef, 21.8 acres). This amendment would temporarily close a total of 64.4 acres of oyster reef for two years. The Texas Department of State Health Services (DSHS) regulates shellfish sanitation and designates specific areas where oysters may be harvested for human consumption. The designation of "Conditionally Approved" or "Approved" is determined by DSHS.

        The temporary closures will allow for the planting of oyster cultch to repopulate in those areas and enough time for those oysters to reach legal size for harvest. Oyster cultch is the material to which oyster spat (juvenile oysters) attach in order to create an oyster bed.

        Under Parks and Wildlife Code, §76.115, the department may close an area to the taking of oysters when the commission finds that the area is being overworked or damaged or the area is to be reseeded or restocked. Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (Hurricane Ike, September 2008 and Hurricane Harvey, August 2017), as well as high harvest pressure. The department’s oyster habitat restoration efforts to date have resulted in a total of approximately 1,709 acres of oyster habitat returned to productive habitat within these bays.

        Over $3.4 million from the Coronavirus Aid, Relief, and Economic Security (CARES) Act, administered through the Gulf States Marine Fisheries Commission (GSMFC), was awarded to TPWD to restore oyster habitat to offset impacts to commercial oyster fisheries from decreased landings, workforce, and demand for oysters resulting from COVID-19. Funding was also generated through HB51 (85th Legislature, 2017), which included a requirement that certified oyster dealers re-deposit department-approved cultch materials in an amount equal to thirty percent of the total volume of oysters purchased in the previous license year.  Additionally, Shell Oil and Gas has donated $50,000 to the Galveston Bay oyster restoration project. These funds will be used to restore approximately 21 acres on East Redfish Reef and 9 acres on North Dollar Reef. Oyster abundance on these reefs has severely declined over time, and the portion of the reefs selected for restoration is characterized by degraded substrates. These sites were selected in collaboration with the commercial oyster industry, which provided input on site prioritization through a series of workshops. Commercial oyster industry representatives also accompanied TPWD on site surveys to determine the suitability of the substrate for restoration. The restoration activities will focus on establishing stable substrate and providing suitable conditions for spat settlement and oyster bed development.

2. Fiscal Note.

        Dakus Geeslin, Deputy Director, Coastal Fisheries 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 rules.

3. Public Benefit/Cost Note.

        Mr. Geeslin also has determined that for each of the first five years that the rule as proposed is in effect, the:

                 (A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state; the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens; the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices; the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach legal size and subsequent recreational and commercial harvest; and providing protection from harvest to a reef complex thus establishing a continual supply of oyster larvae to colonize oyster habitat within the bay system.

                 (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 areas designated for closure have been degraded to the extent that they no longer support any commercial exploitation, the closures effected by the proposed rules will not result in direct adverse economic impacts to any small business, microbusiness, or rural community. The department does note, however, that numerous areas previously closed (South Redfish Reef, Texas City 1, Texas City 2, Hanna’s Reef, and Middle Reef), are now home to healthy populations of oysters that have reached legal size and may be harvested by both recreational and commercial users.

        There will be no adverse economic effect on persons required to comply with the rule as proposed.

                 (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) The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

                 (G) The department has determined that the proposed rules is in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).

                 (H) 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) will expand an existing regulation (by creating new area closures);

                 (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 Hanna Bauer, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8255; email: cfish@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, §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters.

        The proposed amendment affects Parks and Wildlife Code, Chapter 76.

6. Rule Text.

        §58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

                 (a) — (b) (No change.)

                 (c) Area Closures.

                         (1) (No change.)

                         (2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of subparagraphs (A)(i)-(vi) and (B) of this paragraph cease effect on November 1, 2023. The provisions of subparagraphs (A)(i-ii) cease effect on November 1, 2025. The provisions of subparagraph (A) (vii) (iii) and (C) (B) cease on November 1, 2024.

    (A) Galveston Bay.

      (i) Trinity Sanctuary Reef. The area within the boundaries of a line beginning at 29° 38’ 26.2"N, 94° 51’ 53.1"W (29.640616°N, -94.864753°W; corner marker buoy A); thence, to 29° 38’ 22.9"N, 94° 51’ 48.7"W (29.639701°N, -94.863539°W; corner marker buoy B); thence to 29° 38’ 17.9"N, 94° 51’ 49.8"W (29.638304°N, -94.863857°W; corner marker buoy C); thence to 29° 38’ 13.2"N, 94° 51’ 50.1"W (29.636994°N, -94.863926°W; corner marker buoy D); thence to 29° 38’ 10.1"N, 94° 51’ 53.2"W (29.636131°N, -94.864777°W; corner marker buoy E); thence to 29° 38’ 17.1"N, 94° 52’ 01.3"W (29.638092°N, -94.867041°W; corner marker buoy F); and thence back to corner marker buoy A.

      (ii) Trinity Harvestable Reef 1. The area within the boundaries of a line beginning at 29° 38’ 56.2"N, 94° 51’ 34.4"W (29.648936°N, -94.859552°W; corner marker buoy A); thence, to 29° 38’ 58.8"N, 94° 51’ 29.5"W (29.649673°N, -94.858202°W; corner marker buoy B); thence to 29° 38’ 55.4"N, 94° 51’ 27.1"W (29.648733°N, -94.857531°W; corner marker buoy C); thence to 29° 38’ 56.7"N, 94° 51’ 24.8"W (29.649075°N, -94.856906°W; corner marker buoy D); thence to 29° 38’ 50.5"N, 94° 51’ 20.5"W (29.647369°N, -94.855690°W; corner marker buoy E); thence to 29° 38’ 46.8"N, 94° 51’ 27.7"W (29.646345°N, -94.857704°W; corner marker buoy F); and thence back to corner marker buoy A.

      (iii) Trinity Harvestable Reef 2. The area within the boundaries of a line beginning at 29° 36’ 47.0"N, 94° 52’ 23.7"W (29.613063°N, -94.873269°W; corner marker buoy A); thence, to 29° 36’ 37.2"N, 94° 52’ 22.9"W (29.610327°N, -94.873046°W; corner marker buoy B); thence to 29° 36’ 36.7"N, 94° 52’ 31.1"W (29.610187°N, -94.875306°W; corner marker buoy C); thence to 29° 36’ 46.5"N, 94° 52’ 31.9"W (29.612924°N, -94.875529°W; corner marker buoy D); and thence back to corner marker buoy A.

      (iv) Dollar Reef. The area within the boundaries of a line beginning at 29° 27’ 30.44"N, 94° 52’ 03.23"W (29.458456°N, -94.867565°W, corner marker buoy A); thence, to 29° 27’ 32.83"N, 94° 51’ 59.91"W (29.459121°N, -94.866643°W, corner marker buoy B); thence, to 29° 27’ 29.13"N, 94° 51’ 52.67"W (29.458094°N, -94.864632°W, corner marker buoy C); thence, to 29° 27’ 15.67"N, 94° 51’ 53.44"W (29.454535°N, -94.864846°W, corner marker buoy D); thence, to 29° 27’ 04.04"N, 94° 52’ 08.47"W (29.451124°N, -94.869021°W, corner marker buoy E) ; and thence back to corner marker buoy A.

      (v) North Todd’s Dump Reef. The area within the boundaries of a line beginning at 29° 30’ 33.76"N, 94° 53’ 17.07"W (29.509379°N, -94.888077°W, corner marker buoy A); thence, to 29° 30’ 27.89"N, 94° 53’ 44.39"W (29.507749°N, -94.895666°W, corner marker buoy B); thence, to 29° 30’ 17.10"N, 94° 53’ 41.73"W (29.504752°N, -94.894926°W, corner marker buoy C); thence, to 29° 30’ 23.60"N, 94° 53’ 12.46"W (29.506556°N, -94.886797°W, corner marker buoy D); and thence back to corner marker buoy A.

      (vi) Pepper Grove Reef — Middle Site. The area within the boundaries of a line beginning at 29° 29’ 15.83"N, 94° 40’ 01.01"W (29.487733°N, -94.666948°W, corner marker buoy A); thence, to 29° 29’ 15.93"N, 94° 39’ 52.30"W (29.487760°N, -94.66453°W, corner marker buoy B); thence, to 29° 29’ 14.81"N, 94° 39’ 52.28"W (29.487450°N, -94.664525°W, corner marker buoy C); thence, to 29° 29’ 14.71"N, 94° 40’ 00.99"W (29.487422°N, -94.666944°W, corner marker buoy D) ; and thence back to corner marker buoy A.

(i)        East Redfish Reef. The area within the boundaries of a line beginning at 29^o 30’ 10.95”N, 94^o 49’ 29.21”W (29.503043, -94.824781, corner marker buoy A); thence to  29^o 30’ 16.31”N, 94^o 49’ 15.68”W (29.50453, -94.821024, corner marker buoy B); thence to 29^o 30’ 03.79”N, 94^o 49’ 08.97”W (29.501053, -94.819161, corner marker buoy C); thence to 29^o 29’ 58.12” N, 94^o 49’ 22.24” W (29.49948, -94.822844, corner marker buoy D); thence back to corner marker buoy A.

(ii)      North Dollar Reef. The area within the boundaries of a line beginning at 29^o 27’ 36.09” N, 94^o 54’ 24.97”W (29.460025, -94.873606, corner marker buoy A); thence to 29^o 27’ 43.72” N, 94^o 52’ 09.05”W (29.462146, -94.86918, corner marker buoy B); thence to 29^o 27’ 38.66”N, 94^o 52’ 05.80”W (29.460738, -94.868278, corner marker buoy C); thence to 29^o 27’ 30.93”N, 94^o 52’ 21.71” W (29.458593, -94.872699, corner marker buoy D); and thence back to corner marker buoy A.

      (vii) (iii) Dollar Reef HSE Mitigation Site. The area within the boundaries of a line beginning at 29° 27’ 22.92"N, 94° 53’ 46.44"W (29.456367°N, -94.896233°W, corner marker buoy A); thence to, 29° 27’ 13.62"N, 94° 53’ 23.80"W (29.453784°N, -94.889944°W, corner marker buoy B); thence to, 29° 26’ 51.77"N, 94° 53’ 40.51"W (29.447713°N, -94.894587°W, corner marker buoy C); thence to, 29° 27’ 18.96"N, 94° 53’ 49.96"W (29.455265°N, -94.897211°W, corner marker buoy D); and thence back to corner marker buoy A.

    (B) Matagorda Bay System — Keller Bay Reefs. The area within the boundaries of a line beginning at 28° 36’ 16.7"N, 96° 28’ 29.042"W (28.604656°N, -96.474734°W, corner marker buoy A); thence, from 28° 26’ 16.7"N, 96° 28’ 40.933"W (28.604659°N, -96.478037°W, corner marker buoy B); thence, from 28° 36’ 5.31"N, 96° 28’ 48.95"W (28.601476°N, -96.480265°W, corner marker buoy C); thence, from 28° 35’ 56.2"N, 96° 28’, 39.94"W (28.598953°N, -96.477761°W, corner marker buoy D); thence, from 28° 35’ 55.9"N, 96° 28’ 21.9"W (28.598886°N, -96.47275°W, corner marker buoy E); and thence back to corner marker buoy A.

    (C) (B) Espiritu Santo Bay- Josephine’s Reef. The area within the boundaries of a line beginning at 28° 18’ 42.6"N, 96° 35’ 48.9"W (28.311833°N, -96.596916°W; corner marker buoy A); thence, to 28° 18’ 34.7"N, 96° 35’ 42.0"W (28.309651°N, -96.594988°W; corner marker buoy B); thence to 28° 18’ 22.1"N, 96° 36’ 00.3"W (28.306142°N, -96.600075°W; corner marker buoy C); thence to 28° 18’ 30.0"N, 96° 36’ 07.2"W (28.308324°N, -96.602004°W; corner marker buoy D); and thence back to corner marker buoy A.

    (D)(C) Christmas Bay, Brazoria County.

    (E) (D) Carancahua Bay, Calhoun and Matagorda County.

    (F) (E) Powderhorn Lake, Calhoun County.

    (G) (F) Hynes Bay, Refugio County.

    (H) (G) St. Charles Bay, Aransas County.

(I)  (H) South Bay, Cameron County.

    (J) (I) Mesquite Bay, Aransas and Calhoun counties.

    (K) (J) Carlos Bay, Aransas County. The area within the boundaries of Carlos Bay from the border of Mesquite Bay to a line beginning at 28° 06’ 52.19"N, 96° 55’ 32.52"W (28.11450°N, -96.92570°W) and ending at 28° 06’ 38.19"N, 96° 53’ 17.41"W (28.11061°N, -96.88817°W).

    (L) (K) Ayres Bay, Calhoun County. The area within the boundaries of Ayres Bay from the border of Mesquite Bay to a line beginning at 28° 12’ 50.18"N, 96° 48’ 44.53"W (28.21394°N, -96.81237°W) and ending at 28° 11’ 17.05"N, 96° 47’ 32.38"W (28.18807°N, -96.79233°W).

    (M) (L) Areas along all shorelines extending 300 feet from the water’s edge, including all oysters (whether submerged or not) landward of this 300-foot line.

        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

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Work Session Item No. 18
Presenter: James Murphy

Work Session
Fairfield Lake State Park Update
August 23, 2023

I.      Executive Summary: Since 1971, Texas Parks and Wildlife Department (TPWD) has leased Fairfield Lake State Park from Big Brown Power Company LLC, which is now Vistra. The park is part of a larger approximately 5,000-acre property that Vistra recently sold to Todd Interests, a real estate development company. TPWD’s attempts to purchase the sales contract from Todd Interests were unsuccessful. The lease for the state park has been terminated and ended on June 13, 2023. Todd Interests does not intend to continue operating the property as a public park nor provide any public access to Fairfield Lake.

II.     Discussion:  Fairfield Lake State Park was a leased park consisting of 1,821.35 acres. The lease began in 1971, and the park officially opened to the public in 1976. On the banks of the 2,400-acre Fairfield Lake, the park provided a wide variety of recreational opportunities to the public, including swimming, fishing, boating/kayaking, camping, and ten miles of trails to explore on foot, bike, or horseback. The park infrastructure included buildings, barns, residences, roads, utilities, and a boat ramp.

In 2018, Vistra, the coal power plant operator, shut down the plant, initiated the decommissioning process, and notified TPWD of its intention to sell the approximately 5,000-acre property that includes Fairfield State Park and Fairfield Lake. TPWD sought to purchase the 1,821.35-acre state park site, but Vistra would not consider a sale of just the park land. TPWD also attempted to partner with potential buyers to acquire the park property. In 2022, Todd Interests entered a contract to purchase the property and completed the acquisition on June 1, 2023. Todd Interests does not intend to use the property as a state park, and TPWD’s lease ended on June 13, 2023. While the property was under contract for sale, TPWD attempted to purchase the sales contract from Todd Interests, but negotiations were unsuccessful.

On June 10, 2023, the Texas Parks and Wildlife Commission, acting in a special public meeting, authorized the Executive Director to use the power of eminent domain as found in Texas Parks and Wildlife Code section 21.103 to acquire approximately 5,000 acres of land in Freestone County to preserve and expand Fairfield Lake State Park.

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Work Session Item No. 18
Exhibit A

Location Map for Fairfield Lake State Park
Freestone County

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Work Session Item No. 18
Exhibit B

Vicinity Map for Fairfield Lake State Park
25 Miles West of Palestine

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Work Session Item No. 18
Exhibit C

Site Map for Fairfield Lake State Park in Red
Proposed Acquisition in Yellow

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Work Session Item No. 19
Presenter: James Murphy

Work Session
Litigation Update
August 23, 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.