Part 1. GENERAL LAND OFFICE

Chapter 15. COASTAL AREA PLANNING

Subchapter B. COASTAL EROSION PLANNING AND RESPONSE

31 TAC §15.41

The Texas General Land Office (Land Office) adopts an amendment to §15.41, relating to Evaluation Process for Coastal Erosion Studies and Projects. The amendment is adopted without changes to the proposed text as published in the December 24, 2004, issue of the Texas Register (29 TexReg 11917) and the text will not be republished. The amendment is adopted pursuant to the Joe Faggard Coastal Erosion Planning and Response Act (CEPRA), as amended, Texas Natural Resources Code, Chapter 33, Subchapter H. The CEPRA requires the Land Office to implement a program of coastal erosion avoidance, remediation, and planning. The amendment to Subparagraph 15.41(1)(A) includes changes to the submission deadline for the project goal summaries required to be furnished by potential project partners from December 1 of the first year of the state fiscal biennium in which funding is sought to July 1 immediately preceding the state fiscal biennium in which funding is sought. For example, the deadline for the state fiscal biennium beginning September 1, 2005, will be July 1, 2005.

SUMMARY OF COMMENTS

The Land Office received comments in favor of the adopted amendments from representatives of the Brazoria County Shoreline Restoration Task Force, The Texas Parks and Wildlife Department (TPWD), and Brazoria County.

Commenters representing the Brazoria County Shoreline Restoration Task Force and Brazoria County stated that the time frame established by the amendment will allow funded projects to be completed within the two year funding cycle and allow for higher quality projects and studies each cycle. The Land Office agrees with these comments.

One commenter representing TPWD stated that the department supports the change to rules for the CEPRA program because it will facilitate more efficient and effective coastal erosion projects by providing more time for project implementation. The Land Office agrees with this comment.

REASONED JUSTIFICATION

The justification for adoption of the amendment to Subparagraph 15.41(1)(A) is that the change will allow additional time within the biennium to conduct and complete CEPRA projects and studies, thus reducing the necessity of requesting that funds be carried over into the following biennium. The typical CEPRA project is comprised of preliminary engineering, permitting, final engineering design, and construction phases. During the course of a project, many critical path challenges exist, including time required for permitting, bird and turtle nesting windows when construction is not allowed, and securing cost effective sand resources proximal to project locations. Although the CEPRA program continues to improve its processes for project evaluation, selection, and contracting, the minimum time frames for these elements are substantial. The adopted change would allow use of 22 out of 24 months of the biennium for project implementation, rather than 16 of 24 months. Project partners will have greater assurance that projects can be completed within the biennium and will have less risk that partially completed projects may not obtain funding in the following biennium. In addition, the alignment of project selection time frames and commencement of local government fiscal years (October 1 for many jurisdictions) may be improved by moving the submission deadline to July. Professional service providers will have more reasonable project timelines, allowing greater attention to detail and more efficient work patterns. Administrative efficiency will be improved as a result of fewer contracting documents required when more projects are completed within the biennium.

MAJOR ENVIRONMENTAL RULE ANALYSIS

The Land Office has evaluated the adopted rulemaking action in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the action is not subject to §2001.0225 because it does not meet the definition of a "major environmental rule" as defined in the statute. "Major environmental rule" means a rule, the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The adopted amendment to §15.41 is not anticipated to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state because the adopted rulemaking implements legislative requirements in CEPRA relating to coastal erosion studies or projects undertaken in cooperation with a qualified project partner under an agreement with the Commissioner of the Land Office.

STATUTORY AUTHORITY

The amendments are adopted under the Texas Natural Resources Code, §33.602(c) that provides the Commissioner of the General Land Office with the authority to adopt rules to implement Subchapter H, Chapter 33, Texas Natural Resources Code, concerning coastal erosion.

STATUTORY PROVISIONS AFFECTED

Texas Natural Resources Code, §§33.601 - 33.605 are affected by the adopted amendment.

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

Filed with the Office of the Secretary of State on February 9, 2005.

TRD-200500602

Larry L. Laine

Chief Clerk/Deputy Land Commissioner

General Land Office

Effective date: March 1, 2005

Proposal publication date: December 24, 2004

For further information, please call: (512) 305-8598

Chapter 65. WILDLIFE

Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION

3. SEASONS AND BAG LIMITS--FISHING PROVISIONS

31 TAC §65.74

The Texas Parks and Wildlife Commission adopts new §65.74, concerning Freeze Events, with changes to the proposed text as published in the December 17, 2004, issue of the Texas Register (29 TexReg 11557).

The rule as adopted will allow the department to temporarily prohibit fishing during a freeze event in affected areas to minimize further loss of fish.

The rule is necessary to address concerns about the vulnerability of fish during freeze events. Freeze events can kill fish in the shallow waters of bay systems and surviving fish are easily located in the remaining deep water areas. The new rule allows the department to temporarily prohibit certain types of fishing during a freeze event in affected areas to minimize further loss of fish. As a result of the protection during a freeze event, game fish stocks will be able to recover more quickly and overall fishing opportunity will be enhanced.

Rapidly on-setting low temperatures constitute one of the greatest threats to fish water survival because of the inherent slow rate of acclimation to low temperatures. The tolerance threshold for most fishes is 8.3° C (47° F). Drops in water temperature below this threshold are common following passage of severe cold fronts in Texas.

Based on department records, major freeze related fish mortalities have occurred along the Texas coast about every 15 years. Prior to 1983, the longest continuous freeze on record began on December 19, 1924 and ended 74 hours later. This record was eclipsed in December 1983 when 77 hours of continuous below freezing temperatures were recorded in Port Arthur.

Three unusually cold weather events occurred along the Texas coast in the 1980's, one in 1983 and two in 1989, which caused massive fish kills. Approximately, 32 million fish died in those events, representing 159 species--103 fishes, 45 invertebrates and 11 vertebrates other than fishes. Using the 1983 freeze as an example of the impact of these events, the Texas Parks and Wildlife Department (TPWD) harvest monitoring data suggest that the recreational angler catch rates for spotted seatrout did not again reach pre-freeze levels until 1987. From TPWD resource surveys, spring gill net catch rates in the upper Laguna Madre for spotted seatrout dropped from 0.7/hr in 1983 to 0.1/hr in the spring of 1984, a direct result of that winter's freeze event.

For these reasons, the department decided that it was necessary to promulgate a rule to authorize the Executive Director to close area(s) affected by a freeze event until the freeze event is over. The strategy is to reduce fishing mortality on spawning adult fish in areas where they are known to aggregate during freeze events. This protection ensures maximum survival of spawning stock biomass in freeze-affected areas, which will minimize the overall effect of a freeze event upon the fishery. The Executive Director would provide adequate notice to the public regarding the closing of affected areas and similarly publicize the reopening of those areas to fishing when the freeze condition has passed. These closures would be limited to the deeper areas where fish are known to congregate in freezes and would end as soon as possible.

One public hearing was held December 7, 2004 in addition to the hearing at the Texas Parks and Wildlife Commission meeting on January 27, 2005. The department received a total of 89 comments on the proposed regulations 63 in support and 26 expressed disagreement.

Of the 26 opposed, 15 defined their opposition as follows:

COMMENT: Four individuals opposed adoption of the rules, stating that they were opposed to any further restrictions in saltwater fishing.

AGENCY RESPONSE: The agency disagrees and responds that the statutory purpose of the department's regulatory authority is to provide a comprehensive method for the conservation of an ample supply of wildlife resources on a statewide basis to insure reasonable and equitable enjoyment of the privileges of ownership and pursuit of wildlife resources. The agency is required to respond to depletion or waste of wildlife resources and that response may take the form of restrictions on when species may be taken, how they may be taken, and how many may be taken. Responding to reduce fishing mortality during a freeze event that can cause massive fish kills and depletion of a population of saltwater fish is warranted and will allow for maximum survival of spawning stock biomass in freeze-affected areas, which will minimize the overall effect of a freeze event upon the fishery. No changes were made as a result of these comments.

COMMENT: Three individuals opposed adoption of the rules, stating that the rules were not supported with data.

AGENCY RESPONSE: The agency disagrees and responds that the impact of historic freeze events have been well documented and can be found in publications such as: McEachron, L. W., G. C. Matlock, C. E. Bryan, P. Unger, T. J. Cody, and J. H. Martin. 1994. Winter mass mortality of animals in Texas bays. Northeast Gulf Science. Vol. 13, No. 2, p. 121-138. Martin, J. H. and L. W. McEachron. 1996. Historical annotated review of winter kills of marine organisms in Texas bays. Texas Parks and Wildlife Department Management Data Series No. 118. 22pp.

No changes were made as a result of these comments.

COMMENT: One individual opposed adoption of the rules, stating that currently existing regulations (e.g., prohibitions against the use of gigs and nets for taking game fish) were adequate to protect saltwater fish species during freeze events.

AGENCY RESPONSE: The agency disagrees and responds that the proposal is specifically aimed at fishermen who use hook and line, pole and line, or throwlines which are not affected by regulations prohibiting other means or methods. The agency is required to respond to depletion or waste of wildlife resources and that response may take the form of restrictions on when species may be taken, how they may be taken, and how many may be taken. Responding to reduce fishing mortality during a freeze event that can cause massive fish kills and depletion of a population of saltwater fish is warranted and will allow for maximum survival of spawning stock biomass in freeze-affected areas, which will minimize the overall effect of a freeze event upon the fishery. No changes were made as a result of these comments.

COMMENT: Five individuals opposed adoption of the rules, stating that the proposal was too general and it was not clear how the rule would function.

AGENCY RESPONSE: The agency agrees with the commenters and amended the proposal clarifying the definition of a freeze, the type of areas that would be considered for closure, and narrowed the closure so it would not affect commercial fisheries in those areas. Further, the commission was presented with a list of potential affected counties.

COMMENT: Two individuals opposed adoption of the rules, stating that closing the Intracoastal Waterway provided better protection.

AGENCY RESPONSE: The agency disagrees and responds that vessel traffic in the Intracoastal Waterway is not under regulatory jurisdiction of the Texas Parks and Wildlife Commission. The department has been in contact with interested groups and parties that would be affected through either mandatory or voluntary closures in the Intracoastal Waterway, and will continue to try to work with these groups to ensure maximum protection to marine species in the event of freezes. No changes were made as a result of these comments.

Two organizations commented on adoption of the proposed rule. The Coastal Conservation Association and the Lower Laguna Madre Foundation supported adoption of the proposed rule.

The new section is adopted under the authority of Parks and Wildlife Code, Chapter 61, which authorizes the regulation of the take of aquatic animal life including when, where, how, and how many individuals of which species may be taken.

§65.74.Freeze Events.

(a) Definitions. For purposes of this section:

(1) "Freeze" means a period of cold weather that begins when the air temperature drops to or below 32 degrees Fahrenheit and creates a risk of depletion of one or more game fish species.

(2) "Affected area" means an area of coastal water where fishing from the bank is possible and where game fish are known or expected to take refuge from cold weather conditions.

(b) The Executive Director shall provide appropriate notice to the public that a freeze has occurred and fishing in the affected area or areas is prohibited. The Executive Director shall provide appropriate public notice as to when fishing in the affected area or areas is allowed to resume.

(c) No person shall fish with a hook and line, pole and line, or throwline in an affected area during a freeze after the Executive Director has given notice to the public that a freeze has occurred and fishing in the affected area is prohibited and before the Executive Director gives notice that fishing may resume.

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

Filed with the Office of the Secretary of State on February 10, 2005.

TRD-200500605

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: March 2, 2005

Proposal publication date: December 17, 2004

For further information, please call: (512) 389-4775