Part 1. GENERAL LAND OFFICE

Chapter 15. COASTAL AREA PLANNING

Subchapter A. MANAGEMENT OF THE BEACH/DUNE SYSTEM

31 TAC §15.27

The Texas General Land Office (Land Office) adopts an amendment to §15.27, relating to "Certification Status of Matagorda County Dune Protection and Beach Access Plan," in order to update the status of Matagorda County's Dune Protection and Beach Access Plan (Plan). The Land Office adopts this rule amendment without changes to the proposed text as published in the November 21, 2003, issue of the Texas Register (28 TexReg 10425). The text will not be republished.

The Land Office has reviewed the Plan amendments and adopts this amendment to §15.27 to certify the Plan as consistent with state law.

A representative of the Executive Committee of Matagorda Bays Regional Advisory Committee of the Recreational Fishing Alliance submitted approximately 970 petition letters and a petition with approximately 5000 signatures, all in general opposition to closing any portion of Matagorda Beach to vehicular traffic, the destruction of the dunes for the purpose of a new access point to Matagorda Beach, and any road construction through wetlands that would disturb natural habitats. The County's Plan includes a new road that is necessary to preserve access to the beach. While the new road is a necessary part of the County's Plan, the construction of the new access road may require other authorizations under separate laws that are outside the scope of this rulemaking, and cannot be addressed in this rulemaking. No changes were made in response to these comments.

The same representative from the Executive Committee of Matagorda Bays Regional Advisory Committee of the Recreational Fishing Alliance commented that the proposed Plan for Matagorda Beach is not compliant with Texas Open Beaches Act §61.011(a), which requires that the right of ingress and egress to the beach shall be free and unrestricted. The commenter stated that the placement of bollards and the beach user fee both restrict ingress and egress to the beach. The Land Office disagrees. The proposed Plan is consistent with the Texas Open Beaches Act §§61.022 and 61.070, which provide for regulated vehicle traffic on the beach and for the assessment of a reasonable fee for off-beach parking, as long as they are consistent with the policies of §61.011. Matagorda County's Plan is consistent with the policy of providing equal or better access to the public beach in that it provides adequate off-beach parking adjacent to the area of beach that is to be closed, and the amount of the fee is reasonable for the off-beach parking and facilities it will provide. No change was made in response to this comment.

The same commenter also stated that the proposed Plan violates §61.015(a) of the Open Beaches Act, which requires a local government to adopt a plan for preserving and enhancing access to and use of public beaches. The Land Office disagrees, because access to the public beach is preserved in accordance with the Open Beaches Act and the Land Office's beach/dune rules. Open Beaches Act §61.015(a) requires that beach access plans must be consistent with the policies in §61.011 of the Texas Open Beaches Act and the Land Office's beach/dune rules. The Land Office believes that the Plan satisfies the requirements of Texas Open Beaches Act §§61.022 and 61.070, and §15.7(h) of the beach/dune rules, which allow for the regulation of vehicular beach access if the Plan provides adequate parking adjacent to the beach, ingress and egress access points that are no farther apart than 1/2 mile, and adequate signage. No change was made in response to this comment.

The same commenter also stated that the proposed Plan is not consistent with §61.022(c) of the Texas Open Beaches Act because this statute excepts traffic regulations related to public safety, and the issue is not public safety. The Land Office disagrees. Section 61.022(c) applies to this Plan because it relates to the regulation of vehicular access to the beach, not to public safety traffic regulations such as stop signs and speed limits. Section 61.022(c) requires local governments proposing to adopt or amend vehicular traffic regulations or fees to submit a plan to the Land Office for review. In addition, §61.022(c) requires the Land Office to certify whether the proposed Plan is consistent or inconsistent with the policies and rules promulgated under §61.011 of the Texas Open Beaches Act. With this rulemaking, the Land Office certifies that the proposed Plan is consistent with §61.011, as required by §61.022(c). No change was made in response to this comment.

The same commenter also suggests that the proposed recommendation for on-beach parking in the Plan will diminish the size of the beach and is contrary to 31 TAC §15.5(a). The Land Office disagrees, because 31 TAC §15.5(a) pertains to the issuance of a beachfront construction certificate, which is not at issue here. In addition, 31 TAC 15.5(d) states that any activities that would impair access to and from the beach must be compensated for by dedicating new access areas to provide equivalent or better access than what was impaired by the activity. The dedication of new beach access areas must be consistent with the pertinent provisions regarding beach access and use as established in 31 TAC §15.7(h). The purpose of this proposed Plan is to dedicate new beach access areas. No change was made in response to this comment.

Two other representatives of the Matagorda Bays Regional Advisory Committee of The Recreational Fishing Alliance commented that Matagorda Beach should be kept open, and expressed concerns about other beach closures to vehicular traffic along the Texas coast. The Land Office disagrees because the Plan, as submitted, meets the requirements for the regulation of vehicular traffic outlined in 31 TAC §15.7(h)(1). No changes were made in response to these comments.

Another representative from the Executive Committee of Matagorda Bays Regional Advisory Committee of the Recreational Fishing Alliance commented generally against the proposal to close a portion of Matagorda Beach, and stated that it denies people the historical use that generations have enjoyed and subjugates the Texas Open Beaches Act. The Land Office disagrees, because 31 TAC §15.7(h) requires that local governments shall regulate pedestrian or vehicle access, traffic, and parking on the beach only in a manner that preserves or enhances the existing public right to use and have access to and from the beach. Section 15.7(h) establishes standards under which a plan is presumed to preserve beach use and access. The Matagorda County Plan is consistent with State law and regulations. The purpose of the Plan is to ensure that public beach access and use is preserved. In addition, the purpose of this rulemaking is to certify that the proposed Plan is consistent with state law. No change was made in response to this comment.

The same commenter stated that there is no need to construct a road through wetlands. The Land Office disagrees because the proposed new access road is necessary to provide equal or better access to the beach under the County's Plan. Any required mitigation to compensate for the loss of wetlands is outside the jurisdiction and scope of the Open Beaches Act and this rulemaking. No change was made in response to this comment.

The same commenter also stated that the decision should be made by the Legislature, which enacted the Texas Open Beaches Act, rather than the Land Office. The Land Office disagrees because Open Beaches Act §61.011(d)(3)&(4) authorizes the Land Commissioner to draft rules regarding local government prohibition of vehicular traffic on public beaches and imposition of beach access with respect to public beaches. The rules promulgated by the Land Commissioner regarding beach access are outlined in 31 TAC §15.7(h) of the beach/dune rules. No change was made in response to this comment.

The State Chairman of the Texas Recreational Fishing Alliance provided comments in opposition to the Plan and stated that Texans have historically had vehicular access. The commenter also stated that the Texas Open Beaches Act was put in place historically to ensure Texans the right to use the public beaches, and this Plan amendment is a "land grab" by the Lower Colorado River Authority (LCRA). The Land Office disagrees that Matagorda County's Plan amendment changes either the title to any property, the status of the public beach easement, or the public's right to access the public beach under the Open Beaches Act. Instead, it changes the means by which the public may access the beach, and is consistent with 31 TAC §15.7(h). No changes were made in response to these comments.

Three individuals commented generally in favor of the proposed Plan. No changes were made in response to these comments.

The reasoned justification for the adopted rulemaking is that the Land Office has determined that the proposed Plan meets the criteria outlined in 31 TAC §15.7(h)(1), which authorizes local governments to regulate pedestrian or vehicular access on the beach in a manner that preserves or enhances the existing public right to use and have access to and from the beach.

The rule amendment is not a major environmental rule as described by Texas Government Code §2001.0225.

This rule amendment is adopted under Texas Natural Resources Code §61.011, which provides Texas' open beaches policies; §61.015(b), which provides that certification of local government plans shall be by adoption into the beach/dune rules under §61.011; and §61.022(c), which requires that the Land Office certify the consistency of vehicular plans and fees by adoption into the beach/dune rules.

Texas Natural Resources Code §61.011, §61.015, and §61.022 are affected by this adopted rulemaking.

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 March 8, 2004.

TRD-200401769

Larry L. Laine

Chief Clerk/Deputy Land Commissioner

General Land Office

Effective date: March 28, 2004

Proposal publication date: November 21, 2003

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

Chapter 59. PARKS

Subchapter F. STATE PARK OPERATIONAL RULES

31 TAC §59.134

The Texas Parks and Wildlife Commission adopts an amendment to §59.134, concerning Rules of Conduct in Parks, without changes to the proposed text as published in the December 12, 2003, issue of the Texas Register (28 TexReg 11085). The amendment prohibits the feeding of wildlife and exotic wildlife on state parks except as specifically authorized by the department. The proposed rule also corrects a misspelling in subsection (e)(3), replaces references to horses with references to equines, which is necessary because park rules relating to equines apply to all equines, not just horses, and would redesignate subsection (v)(2)(A) and (B) as (v)(3) and (4) for purposes of clarity.

Under Parks and Wildlife Code, §13.101, the commission may promulgate regulations governing the health, safety, and protection of persons and property in state parks. Additionally, under §13.102, regulations adopted may govern the conservation, preservation, and use of state property whether natural features or constructed facilities, the activities of park users, and conduct which endangers the health or safety of park users or their property. The rule is necessary to address several concerns. First, wild animals are inherently dangerous, no matter how innocuous they may seem. Wild animals that become habituated to humans, and especially those wild animals that learn to associate humans with food, lose their natural fear and in some cases can behave aggressively. In addition to their potential to inflict physical harm, wild animals also have the potential to carry and transmit disease. Therefore, the rule is primarily intended to reduce threats to human health and safety. Secondly, wild animals should live in natural systems. Supplemental feeding, however well intended it may be, is an unnatural interference in the natural balance between animals and their habitat and can, if unchecked, lead to population problems and habitat degradation. Additionally, people have been known to offer a variety of foodstuffs to wild animals, some of which may be unhealthy or injurious; the proposed rule is therefore also intended to protect the well-being of wildlife resources on state parks.

Parks and Wildlife Code, §13.102 also authorizes the commission to regulate the possession of pets or animals on state parks. The rule as adopted replaces the term ‘saddle horse’ with the term ‘equine,’ so as to make clear that all equines (i.e., pack horses, draft horses, driving horses, asses, mules, donkeys, and burros) are subject to park rules of conduct, and not just horses under saddle.

The rule will function by prohibiting the feeding of animals (except for birds, and then only by prescribed methods that do not also make feed available to other wildlife) by park visitors, which will reduce the likelihood of animal/human conflicts on state parks, and by clarifying that all equines on state parks are subject to regulation by the department.

The department received eight comments regarding adoption of the proposed rule. One commenter opposed adoption of the rule, stating that there has never been an injury or death on a state park as a result of an animal/human interaction. The department disagrees with the comment and responds that the prohibition on the feeding of animals in state parks is not a response to any specific incident, but an action intended to reduce the potential for such incidents. The commenter also stated that the department was perpetrating fraud because there is a sign at Choke Canyon State Park that forbids the feeding of animals, so the department has been implementing the rule for three years. The department disagrees with the comment and responds that there is no enforceable provision regarding the feeding of animals on state parks; the sign at Choke Canyon is a staff request to the public to not feed the animals and is not enforceable. The department’s action creates an enforceable provision. The same commenter also stated that wildlife viewing in Choke Canyon State Park is done by throwing food from vehicles so the wildlife will approach. The department disagrees with the comment and responds that the department’s aim is not to discourage wildlife viewing, but to prevent practices by guests in state parks that could lead to unfortunate events. No changes were made as a result of the comments.

One commenter opposed adoption of the proposed rule on the basis that much of the appeal of park visitation would be lost if feeding were to be prohibited, and recommended that the department broadcast feed alongside park roads in the morning and evening (to give visitors viewing opportunities), set up viewing stations where animals are fed by park personnel, or continue to allow park visitors to feed wildlife, but educate the visitors as to what to feed the animals and what dangers there could be. The department disagrees with the comment and responds that it is the duty of the department to do what’s best for the wildlife on state parks. The department’s management policy is to avoid unnatural interference with the animals’ ordinary state of existence, which precludes supplemental feeding whether by staff or the public. Also, it has long been noted that wild animals habituated to feeding often become aggressive as they lose their natural fear of humans, and the department’s intent is to minimize the potential for unfortunate incidents. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed rule, stating that disease transmission and aggressive behavior are minimal risks, and that population increase due to feeding isn’t a major problem. The department disagrees with the comment and responds that while it is true that there have been no serious incidents yet, it was only a matter of time before someone was injured or worse in an animal/human encounter caused by feeding. As noted in other responses, wild animals behave unpredictably as their natural fear of humans is degraded, and wild animals should and deserve to lead their lives as nature dictates. Similarly, disease transmission is not a major concern, but the prohibition of feeding would make it even less of an issue. No changes were made as a result of the comment.

Two commenters opposed adoption of the proposed rule on the basis that unlike the national parks, state parks have no dangerous animals, and besides, all the ranches are on feeding programs. The department disagrees with the comment and responds that every wild animal is potentially dangerous; even small animals are capable of inflicting painful bites, and the potentially dangerous behavior of deer is well documented. As for activities on private property, it is true that many ranches engage in feeding programs, which is entirely legal. However, the department points out that such programs are usually highly controlled, which is not the case on parks, where the department has no control over what is offered. Additionally, the department does not encourage or practice supplemental feeding because of habitat concerns. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed rule because feeding allows children to see the gentle side of nature. The department disagrees with the comment and responds that although it is important to teach children about wildlife and wild systems, the feeding of wildlife is not good for the wildlife and therefore, ultimately, not encouraged by the department. No changes were made as a result of the comment. One commenter opposed adoption of the proposed rule without stating a reason. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed rule on the basis that it represents unnecessary government regulation and suggested that feeding be allowed on weekends. The department disagrees with the comment and responds that department personnel have for many years have attempted to gently discourage people from feeding wildlife, but additional measures are necessary for problem cases. The department does not intend to prosecute anyone unless it becomes absolutely necessary (i.e., after warnings). The department favors a total ban on wildlife feeding because it does not wish for wild animals on state parks to associate humans with food, and it is therefore most prudent to simply eliminate that possibility. No changes were made as a result of the comment.

Three commenters supported adoption of the proposed rule.

The Texas Wildlife Association commented in favor of adoption of the proposed rule.

The amendment is adopted under Parks and Wildlife Code, §13.101, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts.

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 March 2, 2004.

TRD-200401674

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: March 22, 2004

Proposal publication date: December 12, 2003

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