Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 65.
WILDLIFE
Subchapter H. PUBLIC LANDS PROCLAMATION
31 TAC §§65.190, 65.191, 65.193, 65.198, 65.199, 65.201
The Texas Parks and Wildlife Commission adopts amendments
to §§65.190, 65.191, 65.193, 65.198, 65.199, and 65.201, concerning
the Public Lands Proclamation. Section 65.199 is adopted with changes to the
proposed text as published in the February 18, 2005, issue of the
Texas Register
(30 TexReg 810). Sections 65.190, 65.191, 65.193, 65.198,
and 65.201 are adopted without changes and will not be republished.
The amendment to §65.190, concerning Application, alters nomenclature
by replacing the term 'non-consumptive use' with the term 'recreational use.'
The term 'non-consumptive' has been used historically as an umbrella term
to encompass all activities other than hunting and fishing; however, it gives
the impression that public usage other than hunting and fishing results in
little or no impact to public resources on wildlife management areas and public
hunting lands. The change is necessary because all uses of wildlife management
areas and public hunting lands involve, to varying degrees, some type of resource
impact. This change is made throughout the subchapter where necessary. The
amendment also updates references and citations where necessary, removes reference
to Caddo Lake State Park (which is no longer a unit of public hunting lands),
and removes references to the Bryan Beach Unit of the Peach Point Wildlife
Management Area, which is no longer owned by the department.
The amendment to §65.191, concerning Definitions, consists of several
actions. The amendment alters the definition of 'all terrain vehicle.' Until
now, the department has defined an ATV as any motor vehicle that 'cannot be
operated on a public roadway,' which technically allowed inappropriate motor
vehicles such as farm machinery, treaded or tracked vehicles, and construction
equipment to be considered as ATVs. The department's intent in allowing the
use of ATVs (where they are allowed) is to permit public users, particularly
disabled users, greater ease of access, but only within biologically acceptable
parameters. Obviously, heavy equipment is incompatible with sound biological
management, as fragile soils and vegetative communities are easily disturbed,
resulting in impacts to the fish and wildlife resources that depend upon them
for habitat. Therefore, the department is replacing the current definition
with the definition of ATV used in the Transportation Code. In concert with
the change, the department also added another definition from the Transportation
Code, the definition for 'motor vehicle,' in order to provide complete consistency
of terminology, and a definition for 'off-road vehicle,' to create an inclusive
term to encompass vehicles other than ATVs that could be used for off-road
purposes.
The amendment also adds a definition for 'camping.' That term has not heretofore
been defined, but the department has decided that a definition is needed in
order to clarify exactly what is meant by that term as it applies to public
use of wildlife management areas and public hunting lands.
The amendment also provides a revised definition of 'disabled person.'
Previous to this rulemaking a person was required to possess a physician's
statement attesting to the person's permanent ambulatory disability (as defined
in the Transportation Code) in order establish the person's status as disabled.
In order to avoid confusion and the difficulties associated with verification
of physician's statements, the new definition would require any person seeking
status as disabled to possess a state-issued disabled placard or license plate.
The amendment is necessary to create a single standard for documentation of
disability.
The amendment also alters the definition of the Limited Public Use (LPU)
permit. Prior to this rulemaking, the LPU permit was not valid for the take
of wildlife resources. The adopted definition is necessary because the amendment
to §65.193 allows the LPU permit to be used for fishing on wildlife management
areas and public hunting lands.
The amendment also replaces the definition for 'non-consumptive activities'
with the term 'recreational use,' which is defined as 'any use other than
hunting or fishing.' The new definition is necessary because all users of
wildlife management areas and public hunting lands, even those who do not
hunt or fish, participate in some sort of impact on those areas. The proposed
definition simply aggregates the variety of public uses other than hunting
and fishing under a single term of reference.
The amendment to §65.193, concerning Access Permit Required and Fees,
allows any person entering a wildlife management area or public hunting lands
to fish under a Limited Public Use permit (LPU) and removes a reference to
hunting and fishing activities with respect to the waiver of fees for a person
participating in a regular hunt under an Annual Public Hunting (APH) permit.
The change is necessary to allow persons to access wildlife management areas
and public hunting areas, when feasible, for fishing activities under an LPU
on days when regular permit hunts are being conducted. The proposed amendment
also removes references to the Bryan Beach Unit of the Peach Point Wildlife
Management Area, which is no longer owned by the department.
The amendment to §65.198, concerning Entry, Registration, and Checkout,
replaces the term 'non-consumptive use' with the term 'recreational use' for
the reasons noted previously in the discussion of amendments to §65.190.
The amendment to §65.199, concerning General Rules of Conduct, removes
a reference to the Texas Conservation Passport, which no longer exists.
The amendment also prohibits camping on any given unit of public hunting
lands for more than 14 consecutive days or more than 21 days in any 30-day
period. The amendment is necessary in order to ensure that recreational opportunity
is equitably distributed. Since demand for camping use on many if not most
public hunting areas is high, the department feels that the limitations on
duration of use are a fair way of ensuring that those areas are available
for the enjoyment of the greatest number of people.
The amendment also changes an outmoded reference to WMA antlerless permits.
The department issues such permits on units of public hunting lands shared
by the department and the U.S. Forest Service. The permits are now referred
to as USFS antlerless permits. The change is necessary to provide an accurate
naming convention.
The amendment also restricts the parking or leaving of motor vehicles to
designated parking areas. The amendment is necessary to prevent the creation
of impromptu parking areas, which result in degradation of habitat and storm
water runoff erosion.
The amendment also requires persons who wish to operate a motor vehicle,
ATV, or off-road vehicle under special provisions for disabled persons to
possess a state-issued disabled placard or license plate, or other state-issued
evidence that the person is entitled to disabled status. Under the previous
rules, people seeking to use vehicles under provisions for disabled persons
were required to possess only a physician's statement stating that the person
met the requirements in the Transportation Code to be eligible for a disabled
placard or license plate. The department reasons that if the standard for
determining disabled status is the same as that used for issuance of a placard
or plate, confusion and difficulties associated with verification of physician's
statements can be avoided by requiring that a placard or plate be possessed
as proof of disability.
The amendment also prohibits any activity not specifically authorized by
order of the executive director or regulation of the commission. The amendment
is necessary to address unanticipated situations or instances in which an
aspect of public use is clearly antithetical to the department's mission or
injurious or potentially injurious to resources or habitat, but is not specifically
addressed within this subchapter.
The amendment to §65.201, concerning Motor Vehicles, includes off-road
vehicles in the applicability of the section. The amendment is necessary to
make the provisions of the section consistent with changes that alter the
meaning of the term 'motor vehicle' and introduce the term 'off-road vehicle'
in §65.191, concerning Definitions. Under current rules, an ATV is any
motor vehicle that cannot be legally operated on a public roadway. The proposed
amendment to §65.191 creates scenarios in which off-road vehicles can
be used in the same way as ATVs, making it necessary to include them in provisions
of §65.201. The amendment is necessary to provide an encompassing provision
to regulate all types of vehicle use on wildlife management areas and public
hunting lands.
The amendment to §65.190 will function by providing an accurate list
of properties to which the provisions of the subchapter apply and by employing
terminology that is consistent with that employed throughout the rest of the
subchapter.
The amendment to §65.191 will function by establishing the meaning
of words and terms used throughout the rules in order to provide clarity and
make regulatory compliance and enforcement easier.
The amendment to §65.193 will function by allowing fishing on wildlife
management areas under a Limited Public Use permit (LPU) and by eliminating
inaccurate references.
The amendment to §65.198 will function by standardizing terminology.
The amendment to §65.199 will function by: removing outdated references;
prohibiting persons from camping on any given unit of public hunting lands
for more than 14 consecutive days or more than 21 days in any 30-day period;
restricting the parking or leaving of motor vehicles to designated parking
areas; requiring persons who wish to operate a motor vehicle, ATV, or off-road
vehicle under special provisions for disabled persons to possess a state-issued
disabled placard or license plate; and prohibiting any activity not specifically
authorized by order of the executive director or regulation of the commission.
The amendment to §65.201 will function by providing the department
with the means to effectively control the use of various types of vehicles
on wildlife management areas and public hunting lands.
The department received five comments opposing adoption of the proposed
amendment to redefine the term 'all-terrain vehicle' (ATV) to be consistent
with the definition of that term in the Transportation Code. Of the comments
offering a specific rationale for opposing adoption, one commenter stated
that the amended rule would prohibit the use of 6-wheeled vehicles and two
commenters stated that vehicles with bench-type seats would be prohibited.
The department disagrees with the comments and responds that the rule as adopted
merely makes the definition of ATV consistent with the definition of ATV in
the Transportation Code. The department's rules governing the use of vehicles
are not affected. Vehicle use (whether motor vehicles in general, or subcategories
such as ATVs and off-road vehicles) remains a function of site-by-site decisions
made by management personnel and published in the department publications
entitled "Applications for Drawings on Public Lands" and "Public Hunting Lands
Map Booklet." No changes were made as a result of the comments. The department
received 32 comments supporting adoption of the rule as proposed.
The department received 11 comments opposing adoption of the proposed amendment
to allow a person to fish under the Limited Public Use (LPU) permit. The comments
offering a specific rationale for opposing adoption were as follows.
One commenter stated that everyone fishing or hunting on a wildlife management
area should have to purchase the Annual Public Hunting (APH) permit. The department
disagrees with the comment and responds that in order to encourage more people
to try fishing, the department has waived fishing license requirements on
state parks and wildlife management areas. Since fishing privileges are currently
included under the APH permit and persons entering state parks and wildlife
management areas do not need a fishing license, the department reasons that
prohibiting LPU permit holders from fishing makes very little sense, since
all other classes of visitors are allowed to fish. No changes were made as
a result of the comment.
One commenter stated that there would be safety problems if anglers were
allowed on wildlife management areas at the same time when hunts were being
conducted. The department disagrees with the comment and responds that under
the current rules no person accessing an area for hunting purposes is prohibited
from fishing, and in fact many hunters bring angling equipment with them when
they hunt so that they can go fishing and hunting on the same trip. The department
is not aware of any unsafe or dangerous situations resulting from the practice.
No changes were made as a result of the comment.
The department received 21 comments supporting adoption of the proposed
amendment.
The department received six comments opposing adoption of the proposed
amendment to prohibit camping on any given unit of public hunting lands for
more than 14 consecutive days or more than 21 days in any 30-day period. The
comments offering a specific rationale for opposing adoption were as follows.
One commenter stated that the department should institute the restriction
on an area-by-area basis as the need arises. The department disagrees with
the comment and responds that statewide effect is necessary to ensure a fair
and equitable application of the regulation to all users. No change was made
as a result of the comment.
One commenter stated that the restriction should not be applied to hunters.
The department disagrees with the comment and responds that due to staffing
and manpower constraints it would be impractical to attempt to verify the
daily activities of all users for the purposes of differentiation. No changes
were made as a result of the comment. The department received 30 comments
supporting adoption of the proposed amendment.
The department received 11 comments opposing adoption of the proposed amendment
to restrict the parking or leaving of motor vehicles to designated parking
areas. The comments offering a specific rationale for opposing adoption were
as follows.
One commenter stated that people should be able to access hunting areas
without having to walk. The department disagrees with the comment and responds
that one of the main attractions of hunting for most people is the interaction
with the natural world, away from the usual distractions of everyday life,
such as motor vehicle traffic. Additionally, the department notes that the
construction of roads to all hunting compartments on every area would be prohibitively
expensive. No changes were made as a result of the comment.
One commenter stated that parking only in designated parking areas will
make many areas inaccessible to people using non-powered conveyances (bikes,
feet, float-tubes, canoes, kayaks, etc.). The department disagrees with the
commenter and responds that the provision would apply only to motor vehicles
and trailers. No changes were made as a result of the comment.
The department received 26 comments supporting adoption of the proposed
amendment.
The department received seven comments opposing adoption of the proposed
amendment to require persons seeking to operate a motor vehicle, ATV, or off-road
vehicle under special provisions for disabled persons to possess a state-issued
disabled placard or license plate, or other state-issued evidence that the
person is entitled to disabled status. The comments offering a specific rationale
for opposing adoption were as follows.
One commenter stated that the fee for issuance of the placard, plate or
other state evidence should be established only to cover the printing or manufacturing
costs of the placard or plate. The department disagrees with the comment and
responds that the department does not issue the plate or placard and therefore
imposes no fee. No change was made as a result of the comment.
One commenter stated that since the state charges a fee for issuing a placard,
the rule would require the purchase of the placard even though the individual
may not want or need to use handicapped parking spaces but only needs assistance
with the distances needed to travel on the public areas. The department disagrees
with the comment and responds that the rule applies only to people who wish
to avail themselves of special provisions for disabled users and is not limited
to parking privileges. No changes were made as a result of the comment.
One commenter stated that too many people receive disabled plates or placards
without a physician's statement. The department neither agrees nor disagrees
with the comment, and responds that the issue is not within the department's
purview to address, since the department is not the entity that issues the
plates and placards. No changes were made as a result of the comment.
The department received 26 comments supporting adoption of the proposed
amendment.
The department received 11 comments opposing adoption of the proposed amendment
to prohibit any activity not specifically authorized by order of the executive
director or regulation of the commission. The comments offering a specific
rationale for opposing adoption were as follows.
One person stated that the executive director should not be given free
reign on what activities are legal on any public land and that publicly elected
officials should determine that. The department disagrees with the comment
and responds that under the provisions of Parks and Wildlife Code, Chapter
81, the legislature has delegated to the executive director the authority
to prohibit hunting and fishing in wildlife management areas or public hunting
lands to protect any species of wildlife or fish; to prescribe the number,
kind, sex, and size of game or fish that may be taken; and to prescribe the
means, methods, and conditions for the taking of game or fish during an open
season in wildlife management areas or public hunting lands. Chapter 81 also
delegates authority to the Parks and Wildlife Commission to adopt rules governing
recreational activities in wildlife management areas. No changes were made
as a result of the comment.
Three commenters stated that the proposed amendment would allow the department
too broad an interpretation and that prohibited activities should be identified
and not left up to someone's opinion. The department disagrees with the comment
and responds that to the greatest extent possible the department attempts
to explicitly identify activities that are treated as unlawful activities,
but clearly, it is impossible to account for every possibility. The department
further notes that the amendment is intended only to address unanticipated
situations or instances in which an aspect of public use is clearly antithetical
to the department's mission or injurious or potentially injurious to resources
or habitat. No changes were made as a result of the comments.
One commenter stated that it is the department's job to be aware of "unanticipated
situations," and that that the rule would be a blanket regulation that gives
the state too much unrestricted power. The department disagrees with the comment
and responds that the regulations as a body represent the department's best
efforts to contemplate the variety of potential activities that persons might
engage in as a consequence of using wildlife management areas and public hunting
lands and that the purpose of the regulations is to protect public resources,
provide for the equitable and reasonable enjoyment of those resources, and
safeguard the health and safety of persons enjoying those resources. The department
also comments that the department informs all persons entering wildlife management
areas and public hunting lands as to standards of conduct and behavior. The
department also notes that the rules adopted by the commission or established
by the executive director are implemented within the statutory authority granted
to the department by the legislature and are not unrestricted. No changes
were made as a result of the comment.
One commenter stated that "it is better to state what is not allowed because
stating what is allowed gives limited freedom to the using public to adapt
a new use on a particular site. Stating what is only allowed also slants allowable
uses to the interpretation of the executive director or regulation of the
commission, which could be narrow or politically motivated. Narrow definitions
of use could also be intentionally or unintentionally overly enforced in the
field by enforcement personnel." The department disagrees with the comment
and responds that the amendment does not alter any prohibitions explicitly
articulated under existing rules. The amendment is intended only to address
situations or events that could not be foreseen and explicitly prohibited
beforehand. The rationale for this is that such situations could be injurious
to resources the department is charged with protecting, or could possibly
involve threats to the health and safety of persons enjoying those resources.
The department also comments that the legislature has delegated specific regulatory
authority to commission and the executive director; and that, in fact, other
than the legislature, the commission and the executive director are the only
mechanisms for regulating public use of wildlife management areas and public
hunting lands. No changes were made as a result of the comment.
Nineteen commenters supported adoption of the proposed amendment.
One commenter stated that the department should suspend hunting in Choke
Canyon State Park for three years so that wildlife can recover. The department
disagrees with the comment and responds that the harvest on Choke Canyon State
Park is an annual recommendation that specifies the number of deer to be harvested,
based on a biological evaluation of habitat condition and population. No changes
were made as a result of the comment.
The Texas Wildlife Association commented in support of adoption of the
proposed amendments.
The amendments are adopted under Parks and Wildlife Code, Chapter
81, Subchapter E, which provides the Parks and Wildlife Commission with authority
to establish an open season on wildlife management areas and public hunting
lands and authorizes the executive director to regulate numbers, means, methods,
and conditions for taking wildlife resources on wildlife management areas
and public hunting lands; Chapter 12, Subchapter A, which provides that a
tract of land purchased primarily for a purpose authorized by the code may
be used for any authorized function of the department if the commission determines
that multiple use is the best utilization of the land's resources; and §42.0177,
which authorizes the commission to modify or eliminate the tagging requirements
of Chapter 42.
§65.199.General Rules of Conduct.
This section applies to all public hunting lands unless an exception
for a specific area and time period is designated by the executive director
or by written permission of the department. It is unlawful for any person
to:
(1)
fail to obey regulations posted at the area or policies
established by order of the executive director, fail to comply with instructions
on permits or area leaflets, or refuse to follow directives given by departmental
personnel in the discharge of official duties;
(2)
possess a firearm, archery equipment, or any other device
for taking wildlife resources on public hunting lands, except for persons
authorized by the department to hunt or conduct research on the area, commissioned
law enforcement officers, and department employees in performance of their
duties;
(3)
camp or construct an open fire anywhere other than in a
designated campsite. On the Alabama Creek, Bannister, Caddo, Moore Plantation,
and Sam Houston National Forest WMAs, this restriction applies only during
the period from the day prior to the opening of the archery deer season through
the day following the close of the general deer season;
(4)
camp for more than 14 consecutive days on the same unit
of public hunting lands, or for more than 21 days in any 30-day period;
(5)
cause, create, or contribute to excessive or disturbing
sounds beyond the person's immediate campsite between the hours of 10 p.m.
and 6 a.m.;
(6)
establish a camp and leave it unattended for a period of
longer than 24 hours;
(7)
disturb or remove plants, wood, rocks, gravel, sand, soil,
shell, artifacts, or other objects from public hunting lands, except as authorized
by the department;
(8)
write on, scratch, or otherwise deface natural features,
signs, buildings, or other structures;
(9)
fail to deposit refuse in designated containers or fail
to remove it from the area;
(10)
consume or be under the influence of alcohol while engaged
in hunting activities, or to publicly consume or display an alcoholic beverage
while on public hunting lands;
(11)
possess dogs in camp that are not confined or leashed;
(12)
use or possess any type of riding stock or pack animal
on public hunting lands at any time, except:
(A)
as may be provided by order of the executive director;
or
(B)
by written authorization of the department;
(13)
use an airboat within the boundaries of public hunting
lands, except as provided by executive order or by written permission of the
department;
(14)
take an antlerless deer during the general open season
on wildlife management areas jointly managed by TPW and the U.S. Forest Service
(Alabama Creek, Bannister, Caddo, Moore Plantation, or Sam Houston National
Forest) unless that person possesses on their person a U.S.F.S. antlerless
permit;
(15)
enter a unit of public hunting lands with an equine or
equines, or cause the entry of an equine or equines to a unit of public hunting
lands, unless that person has in their immediate possession, for each equine
in the person's custody or equine that the person allowed to enter the unit
of public hunting lands, a completed VS Form 10-11 (Texas Animal Health Commission)
showing that the equine has tested negative to an official Equine Infectious
Anemia test within the previous 12 months. The documentation required by this
paragraph shall be made available for inspection upon the request of any department
employee acting within the scope of official duties;
(16)
park or leave a motor vehicle unattended anywhere other
than in designated parking areas, if parking areas have been designated;
(17)
use a motor vehicle, off-road vehicle, or ATV on a road,
in an area, or at a time when such use is restricted to disabled persons,
unless the person is in possession of a state-issued disabled parking placard
or disabled license plate or assisting such a person.
(18)
engage in any activity not specifically authorized by
order of the executive director or regulation of the commission.
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 May 18, 2005.
TRD-200501986
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Effective date: June 7, 2005
Proposal publication date: February 18, 2005
For further information, please call: (512) 389-4775
Chapter 363.
FINANCIAL ASSISTANCE PROGRAMS
Subchapter A. GENERAL PROVISIONS
Part 10.
TEXAS WATER DEVELOPMENT BOARD