Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 57.
FISHERIES
Subchapter A. HARMFUL OR POTENTIALLY HARMFUL EXOTIC FISH, SHELLFISH, AND AQUATIC PLANTS
31 TAC §§57.111, 57.113, 57.116, 57.118, 57.119, 57.123, 57.131, 57.132
The Texas Parks and Commission adopts amendments to §§57.111,
57.113, 57.116, 57.119, 57.123, 57.131, and 57.132, concerning Harmful or
Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants, without changes
to the proposed text as published in the April 28, 2000 issue of the
The rules are necessary to reduce administrative complexity, to accurately
reflect changing nomenclature of regulated species, and to reflect changes
in the titles of persons administering the program.
The amendments will function by correcting the scientific name for several
species of penaeid shrimps referred to throughout the rules. The amendments
to §57.113 and §57.118 will function to provide permits for removal
of prohibited plant species from public waters and allow operators of wastewater
treatment facilities to possess permitted exotic species for water treatment
purposes. The amendment to §57.123 will function by requiring annual,
rather than quarterly reports to be submitted to the department by permittees
that import, transport, transfer or sell triploid grass carp.
The department received no comments concerning adoption of the proposed
rules.
The amendments are adopted under Parks and Wildlife Code, §66.007,
Chapter 66, which authorizes the department to make rules to carry out the
provisions of that section.
§57.118.Exotic Species Permit Issuance.
(a)
The department may issue an Exotic Species Permit only
to:
(1)
a licensed Fish Farmer and only for species listed in §57.113(c)-(e)
of this title (relating to Exceptions);
(2)
a wastewater treatment facility operator;
(3)
department approved research programs; or
(4)
a public aquarium for display purposes only.
(b)
The department may issue an exotic species permit upon
a finding by the department that:
(1)
all application requirements as set out in §57.117
of this title (relating to Exotic Species Permit: Fee and Application Requirements)
have been met;
(2)
the fish farm operated by the applicant and named in the
permit meets or will meet the design criteria listed in §57.129 of this
title (relating to Exotic Species Permit: Private Facility Criteria);
(3)
the applicant has complied with all provisions of the Parks
and Wildlife Code, §66.007, §66.015, and these rules during the
one-year period preceding the date of application.
(c)
Permits issued for fish farms, private facilities or wastewater
treatment facilities under construction shall not authorize possession of
harmful or potentially harmful exotic fish, shellfish or aquatic plants until
such time as the department has certified that the fish farm, private facilities
or wastewater treatment facility as-built meets the requirements in §57.129
of this title (relating to Exotic Species Permit: Private Facility Criteria).
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 June 29, 2000.
TRD-200004542
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Effective date: July 19, 2000
Proposal publication date: April 28, 2000
For further information, please call: (512) 389-4775
Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION
1.
GENERAL PROVISIONS
The Texas Parks and Wildlife Commission adopts the repeal of §65.25,
new §65.25, and an amendment to §65.26, concerning Wildlife Management
Plan and Managed Lands Deer Permits, respectively. New §65.25 and the
amendment to §65.26 are adopted with changes to the proposed text as
published in the March 3, 2000, issue of the Texas Register (25 TexReg 1840).
The repeal of §65.25 is adopted without change and will not be republished.
The change to §65.25, concerning Wildlife Management Plan (WMP), restructures
the section to correspond with changes made to §65.26, concerning Managed
Lands Deer (MLD) Permits. In §65.26, the creation of a new level of MLD
permit and the stratification of permit-issuance criteria according to the
management practices, harvest data, and census data on an applicant's tract
of land necessitated the reconfiguration of §65.25 to specifically denote
the WMP requirements that correspond to each level of MLD permit. The change
to §65.26: alters the extended season offered to Level 2 permittees,
implementing a one-month period prior to the general season rather than the
proposed 14-day period following the close of the general season; refines
the nature of a landowner's management obligations i.e., specifying the number
of management practices to occur on the property, consonant with the level
of permit accepted; provides for a waiver of compliance in the case of unforeseen
natural events that affect a landowner's ability to reasonably comply with
the WMP; specifies that a property for which the department denies further
permit issuance is ineligible for MLD permits for a period of three years;
and establishes a timeframe for permit approval or denial by the department.
New §65.25 is necessary not only to create criteria for the issuance
of various levels of MLD permits, as the graduated incentives of MLD permit
levels are linked to the intensity of habitat management, but also to carry
out the commission's policy to encourage good habitat management. The amendment
to §65.26 is necessary to delineate the special provisions (extended
seasons and enhanced bag limits) for the various MLD permits, as well as to
provide for the conditions and provisos under which permits are issued, maintained,
returned, or denied.
New §65.25 will function by establishing the minimum content of a
wildlife management plan for the purpose of issuing MLD and Antlerless and
Spike-buck Control permits. The amendment to §65.26 will function by
specifying the season length and bag limits for each level of MLD permit;
by providing for the conditions under which permits may be issued, maintained,
returned, or denied; and by establishing special provisions for waiver of
habitat management practices.
The department received 28 comments opposed to the proposal to include
additional habitat criteria in the requirements for wildlife management plans.
The commenters stated that the proposal was too open-ended and that interpretation
by department personnel could vary from region to region. The department agrees,
in part, with the comments, and as a result of additional public input on
the issue, has made appropriate changes. Other commenters stated that the
department shouldn't dictate what landowners can or can't do on high-fenced
properties. The department disagrees with the comments and responds that commission
policy is to provide as much latitude as possible to landowners; however,
it has a statutory duty to regulate wildlife resources. No changes were made
as a result of the comments. Several commenters opposed the proposal because
they felt the department was being overly restrictive by not taking supplemental
feeding programs into account when determining the carrying capacity of habitat.
The department disagrees with the comments and responds that the purpose of
the MLD program is to encourage natural habitat management, which is consistent
with the commission's philosophy that habitat is the key to robust wildlife
populations. However, the department agrees that supplemental feeding should
not preclude issuance of MLD permits, provided the landowner is engaged in
recommended habitat management practices and the habitat is not being degraded
by overpopulation, and has made changes accordingly. One commenter opposed
adoption of the rules on the basis that they were not lawfully promulgated.
The commenter specifically alleged that the rules as adopted had not been
proposed. The commenter also stated opposition to the Level III MLD permit
because it was available only to persons with high-fenced property, and opposed
the language specifying that MLD permits 'authorize the take of buck and antlerless
deer as specified by the permit,' stating that it was tantamount to allowing
unlimited hunting behind high fences. The department disagrees with the comments
and responds that the proposed rules were published in the March 3, 2000 issue
of the Texas Register (25 TexReg 1840). Although the rules are adopted with
changes, the department does not believe that the changes warrant re-proposal.
A comparison to the proposal reveals that the changes do not increase the
scope of the regulations, do not introduce provisions fundamentally different
from or alien to those proposed, and do not affect any additional classes
of people. Further, the department responds that issuance of the Level III
MLD permit is not contingent upon a property being high-fenced, nor does the
language in question have the effect alleged. The phrase in question means,
quite simply, that an MLD permit for antlerless deer can only be used on an
antlerless deer, and likewise, an MLD buck permit can only be used on a buck.
The department further responds that unlimited hunting is impossible under
the MLD program, since the extended seasons and enhanced bag limits on MLD
properties are predicated entirely upon the landowner's agreement to remove
a specific number of animals, which is required by rule as a condition for
participation in the program. No changes were made as a result of the comment.
The department received 101 comments in support of adoption of the proposed
rules.
The Texas Deer Association, Texas Wildlife Association, Texas Wildlife
Management Council, and the Texas Chapter of the Wildlife Society commented
in favor of adoption of the proposed rules.
Chapter 65.
WILDLIFE