Texas Parks and Wildlife Commission
Regulations Committee Meeting

Nov. 3, 2004

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744

BE IT REMEMBERED, that heretofore on the 3rd day of November, 2004, there came to be heard matters under the regulatory authority of the Texas Parks and Wildlife Commission, in the Commission Hearing Room of the Texas Parks and Wildlife Department Headquarters Complex, to wit:

APPEARANCES:

THE TEXAS PARKS AND WILDLIFE COMMISSION:

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

PROCEEDINGS

COMMISSIONER HENRY: Greetings. The meeting is called to order. Before proceeding with any business, I believe Mr. Cook has a statement to make.

MR. COOK: Thank you, Mr. Chairman. A public notice of this meeting containing all items on the proposed agenda has been filed in the office of Secretary of State as required by Chapter 551 of the Government Code, referred to as the Open Meetings Law. I would like for this action to be noted in the official record of this meeting. Thank you, sir.

COMMISSIONER HENRY: Thank you, Mr. Cook. We will begin today with the Regulations Committee; therefore, I call the Committee to order. The first order of business is approval of the Committee minutes which have already been distributed. Is there a motion for approval?

COMMISSIONER RAMOS: So moved.

COMMISSIONER PARKER: Second.

COMMISSIONER HENRY: I have a motion and a second. All in favor, please say aye.

(A chorus of ayes.)

COMMISSIONER HENRY: Opposed? Any opposed?

(No response.)

COMMISSIONER HENRY: Hearing none, the motion is carried. I believe the motion was by Commissioner Ramos and the second by Commissioner Parker. Thank you. The Chairman's Charges, Mr. Cook, would you please make the presentation?

MR. COOK: Thank you, sir. Our first charge in the Regulations Committee as we have proceeded through the year, from the last session was to implement all the statutory changes from the 78th session of the Legislature. As we approach the 79th session, I think it is important to note that we have implemented all legislation from inspection authority for our wardens to protection for our riverbeds, and based on feedback that I have received, I think those efforts have all gone well, have been handled well and well received.

TPWD staff, and our coastal fisheries, inland fisheries, and wildlife division continues to be involved in the regional water planning efforts across the state. Now this is a very important step in that process, and our folks are actively involved in those planning process. TPWD staff met with the consultants from the regional water planning groups, and has made presentations upon request to twelve of the 16 regional water planning groups.

Finally, in reference to our meeting here today, this afternoon, this is the meeting this morning here in our Regs committee, this a meeting where we provide you with what I will call a preview of our proposed statewide hunting and fishing regulation changes for the '05-'06 season. This is sort of that first glimpse of what our staff has been hearing, you know, what our data is indicating that we may need to make some changes. We may need to make some tweaks. But we have gone through that process. We have gotten input and guidance from our advisory committees. We have had public scoping meetings and constituent input.

It is important at this stage for us to kind of roll out where we are staff-wise and get your feedback and get any additional suggestions that you have so that we can come back to you. So that staff can come back to you at the January Commission meeting and say: okay, here is what we really want to propose for '05, '06.

And at that time, you will approve what we are going to go forward with in the public hearing process in February to March, that period of time, when we go out for public meetings across the state, and say here are the proposals. Then the adoption and the final approval of those proposals will be done at our April meeting. So this is a very important step in that process, kind of that first look, first preview. And I believe that is it. Thank you, sir.

COMMISSIONER HENRY: Thank you. Committee Item No. 2, Protection of game fish under freeze conditions. Permission to publish. Mr. Larry McKinney, would you make your presentation, please?

MR. MCKINNEY: Mr. Chairmen and members, for the record, I am Dr. Larry McKinney, director of Coastal Fisheries. Before you today for your consideration is asking permission to publish a rule proposal dealing with protection of game fish under freeze conditions. Just to give you a bit of understanding or a briefing on the background, polar air masses can push as far south in Texas as anywhere else in the world, and as a result of that, we have about over 2 million acres of shallow bay bottoms that are connected to the Gulf by very narrow openings, making them very susceptible to impacts of freezes, and that is really what we are talking about.

Let me give you a little bit of an example. There have been fish kills that are as a results of freezes on the Texas coast for many years, reports back even to the 1700s. But our first documented mass mortality was recorded in 1886, and they have occurred at about 15 year intervals since that time.

The most severe period of time, which we have had freezes occurred from 1940 to 1953 wherein nine of those 14 years, fishable populations were reported to be reduced by as much as 50 percent. A couple of specific examples, 1940, the air temperature in Rockport dropped from 64 degrees to 24 degrees in four hours, and was followed by ten days of freezing temperatures. Commercial fin fish harvest, which is what we collected data on at that time was reduced by 46 percent over the next two years. 1951, Laguna Madre fish loss exceeded 46 million fish, and took three years to recover.

In most recent freezes, we have had a series of three fish kills in the 1980s. When you look at the records of all of the fish kills, both natural and man made from the '80s until now, freezes have accounted for 14 percent of the total fish loss, second only to losses of fish due to low dissolved oxygen. The latest fish kill occurred in 1989.

For example, in Brownsville, where the temperature reached 16 degrees, it was the lowest recorded temperature for December in that century and we lost over 11 million fish killed. I was there for that one, and you look in that picture there of trout.

And that is along the Laguna Madre. That was not an isolated event and it was undoubtedly a state record for trout in that pile there. Our concern is that the forecast for 2005, the freeze potential is at the highest probability in the last 14 years, which is about on that 15 year cycle we were talking about as well. Some forecasters say it will not be an issue, but a number of others do, that this year will have relatively mild weather, but we'll have extremes of warm and cold, and so that obviously is our concern.

As a result, we have updated our freeze response plan, which is really in three parts. One is that we are making sure that our assessment techniques are up to speed, because if this thing were to occur, we want to be able to assess the damage as quickly as possible to see where we are. We have already revamped our hatchery system approach in that we have stocks of bluefish, particularly from the Laguna Madre for spotted sea trout, which are the most susceptible, they are ready to go if we have to get in a situation, we'll be able stock those areas as quickly as possible and help accelerate the recovery.

And then we have regulations that we can deal with, and that is really what I want to talk about. We certainly have the ability on the record right now, on the books right now to deal with things, and what I am talking about here is that when you have these kills, these fish will tend to move to the deepest part of the water that they can find.

And typically, in the Laguna Madre where we are talking about, where these things seem to be most severe, they can get trapped in shallow waters, and sometimes they will move into harbors and areas like that, and fish will be stacked up literally like cord wood against the shore and against the basins, and people have come in and snagged and netted and all that.

And we have rules on the books to help stop that. But one of the things that we want to propose for you to consider is to give the Executive Director some authority to respond to, and this is the rule, which basically would say that affected areas shall be temporarily closed to fishing when a freeze occurs.

An affected area is a place where fishing during a freeze of sufficient severity risks depletion of one or more game fish species. And what we are talking about there, if we get into a freeze situation where we are losing a lot of fish, every live fish that we can keep in the water is valuable. It is valuable because one, it is surviving and the genetics are there, but also, just to have the numbers to recover.

So we want to give our game wardens every tool possible to make sure that we can respond properly, and that is what this proposal would allow us to do. It is followed by, and I am going to make sure that it is clear to our constituents that we'll give ample notice before and after of that situation.

So my request today is to put this proposal out for public comment and come back to you in January with a final proposal for your consideration. I would be glad to answer any questions at this time. Yes, sir?

COMMISSIONER MONTGOMERY: When those events occur, how big of an area is affected? How big an area would you envision being affected by this measure, if the Executive Director chose to implement it?

MR. MCKINNEY: Part of where this concern came in was back in the 80s, and talking with guides frankly, in the Port Mansfield area, and other places like that where fish have congregated and people have come together. So I am thinking of small areas like that, of the coast where the freeze is impacting, where you might have fish that will be susceptible to that kind of harvest. So around ports, and that, not entire bays.

COMMISSIONER BROWN: What about Baffin Bay, then? What would you do there? State record trout all caught there.

MR. MCKINNEY: The problem is, that when these freezes occur, the last fish are going to die there. There is nothing we can do about it.

COMMISSIONER BROWN: Even in Baffin?

MR. MCKINNEY: Well, because they sprout apparently everywhere there. But that is a possibility. We don't want to throw that out, that we could if we felt we needed to do that. We could do that. That would be a pretty extreme case of closing down the entire Baffin Bay. The problem of course is, the effect of something like this would only be for a couple of days, because one, either the conditions will relent and warm up and the fish will disperse, and that is good. That is what we would like to give, take the pressure off of them for those few days so they can get away and get back out in the open. But if the freezing conditions continue, it doesn't make any difference, even though those fish will likely die anyway. Yes, sir?

COMMISSIONER PARKER: With the length of time for this item, would that be until further notice?

MR. MCKINNEY: Yes, sir. That is how we are proposing it right now. We assume it would be a couple of days, really, again, once, if you can't, if you are not effective in a couple of days, it is either too late, or the situation is restored. So a few days is what I am looking at.

COMMISSIONER BROWN: We have got to get the word out too, I guess.

COMMISSIONER PARKER: Right. Television.

MR. MCKINNEY: Well, we have a great communications outfit, and if we see these things coming, we'll start laying it out, that these are possibilities. Be prepared that we may take these steps.

And in reality, what I am talking about are places where people can easily access the water, where you can have 30, 40, 100 people lined up some place with their fishing rods, and that those are the areas that I am talking about. Not in the bay, because if anybody is out there, if they are out the bay, maybe they deserve to get whatever they can get out that far.

COMMISSIONER MONTGOMERY: It may be such a temporary thing that what I am talking about is not really critical. I am happy to give the Executive Director the latitude to do what is right biologically, but I wonder about the economic impact of a sustained policy, whether we also add not only to freeze fishing, but to modify regulations and catch limits so that you might not completely stop fishing, and cut off any tourism that might be there, but to drop the catch so low that it doesn't have much biological impact. But I would rather give the Executive more latitude than just freeze or not freeze.

MR. MCKINNEY: The concern, I think, and this is again coming from some of the guys who talked to me about this, is that it is kind of a law enforcement thing that we really need to coordinate with him, is that you have, you get in situation where you have people sitting out there with ice chests full of fish. Now whether they snagged them or netted them or actually caught them, that is hard to tell.

So it reaches a certain point where I would think it would be easier to say we are just not fishing here, it doesn't matter hook, line, net or whatever. You shouldn't be in possession of fish at this point. So that at least eases that. If they don't have to make an interpretation of whether it was one fish or that is the only problem with that.

COMMISSIONER MONTGOMERY: I am just concerned about the potential economic impact.

MR. MCKINNEY: And maybe the way to view it, that is more as a duration, defined duration.

COMMISSIONER MONTGOMERY: Again, I am happy for the Executive Director to have the latitude. I'd rather you have more tools than fewer.

MR. MCKINNEY: Yes. I am thinking that if we are in a freeze situation like this that occurred in '86, when those temperatures, except for a few people who really know what they are doing, nobody is out there. I mean, we are talking about freezing bay surface there is nothing really happening.

COMMISSIONER MONTGOMERY: Well, again, I am happy to let you all make the judgment. I would rather have the thing we approve give the Executive Director more latitude and more tools and fewer right now, you are just getting one tool, which is freeze and that is it. I would rather give more tools. So that just would be my suggestion.

MR. MCKINNEY: Okay. Yes, sir?

COMMISSIONER HOLMES: I don't know how many of you really were aware of what happened at Port Mansfield, I think it was '83 and '89, both times. But the fish congregated in the port, and you could stand on the dock and people were just netting them and snaring them. And I am very much in favor of an absolute freeze. Because if you allow any kind of fishing in that environment, it is going to be abusive. I mean, I think they need to absolutely shut it down if another one of those events occurs.

COMMISSIONER PARKER: I think you have to have a cutoff. It's cleaner.

COMMISSIONER RAMOS: And I agree with everyone. My only concern is whether how quickly we can get the notice out, so that we don't have some innocent fishermen be in violation of some law. But I would assume we would post signs.

MR. MCKINNEY: Oh, yes, sir. By all types and means. We wouldn't have it worked out yet; we would have to do it. But that would be clear, and I know and I have certainly worked with our law enforcement guys. They are not going to try to catch someone. It is going to be obvious.

COMMISSIONER RAMOS: How do you define the affected area? In other words, do you put markers at different points? Is that typically how that is done, or are you just —

MR. MCKINNEY: We have never done it before, but yes sir, we would have to be prepared with signage and work with our law enforcement guys to make sure that they are there in those particular areas that you would enforce, so that they could respond appropriately, and communications.

COMMISSIONER PARKER: The first one should be the most important part.

MR. MCKINNEY: Yes, sir. Across the board. Lydia's crew. And we have had situations not like this with freezing, but with pollution events. And it has been pretty impressive how our communications teams work. They get the word out quickly and effective, so I don't have any concerns there.

COMMISSIONER HOLMES: I think it is going to require active physical presence.

MR. MCKINNEY: People are going to try to do it anyway. I mean that is the reality of it.

COMMISSIONER HOLMES: They know what is going to happen. They are going to be there.

MR. MCKINNEY: Yes. The people who know this, they stock the freezers up. That is reality. And at this point, every live fish, when you are losing what we are losing, every live fish that can swim out of those holes are extremely valuable.

COMMISSIONER HOLMES: You know, the economic impact, we are not talking months of this. We are talking for two or three days.

MR. MCKINNEY: A couple of days.

COMMISSIONER MONTGOMERY: My point doesn't —

COMMISSIONER HOLMES: I don't think it —

COMMISSIONER BROWN: I was on the water in '86. While we were out there, not fishing, I mean, we had further reason. But it was cold. We had financial risk involved. That is the only reason I was out there.

MR. MCKINNEY: I know your situation. In '86, I told, we went out to the Army hole to sample in those situations, and we towed two fishermen back, and they were never so grateful to see a boat coming over the horizon to get them off that water. It was tough; very dangerous.

COMMISSIONER HENRY: Any further discussion?

(No response.)

COMMISSIONER HENRY: If there are no further questions or discussion, then without objection, I authorize staff to publish this item in the Texas Register for the required public comment period.

MR. MCKINNEY: Thank you, Mr. Chairman.

COMMISSIONER HENRY: Thank you, Dr. McKinney. Item No. 3, preview 2005-2006 Statewide hunting/fishing proclamation. Mr. Ken Kurzawski, Mr. Robin Riechers, and Mr. Mike Berger. Will you please come forward for presentation?

MR. KURZAWSKI: Good morning, Commissioners. My name is Ken Kurzawski, and I am with Inland Fisheries Division. And I will start off by giving you a preview of the regulation changes we are considering for fresh water fishing.

First one is for Lake Nasworthy, in Tom Green County. There we have been stocking. That is one of the reservoirs that we stock with red drum and we have a special regulation on there that differs from the coast. It is a 20-inch minimum, and a three fish bag limit. And we are proposing to remove those length limits.

And the reason for that is that we have discontinued red drum stocking there. There is a power plant that was operating on Lake Nasworthy. It is ceasing to operate, and there is a potential for mortality if the water temperature dips below 48 degrees, the red drum need that warm water. So we are hoping to give the anglers there some opportunity to catch a few more of these fish before a freeze does occur and we lose all of them.

The next change is also in the San Angelo area, on the north and south Concho rivers. These are currently defined as community fishing lakes. There is some small pilements there, and also some riverine areas. And one of the parts of that definition of a community fishing lake, we have some special harvest regulations for channel and blue catfish. There is no minimum length limit and a five fish daily bag limit. And we also restrict angling by pulling line only in those community fishing lakes.

We're trying to get people in urban areas a little more interested in fishing and giving some opportunity to catch some fish. And so we have those special regulations on.

And we are proposing to make some changes there to eliminate some of the confusion we have had over just where these regulations were in effect in those areas. On the south Concho River, above Lone Wolf Dam, we're going to go back to the statewide regulations. A lot of that portion of the south Concho, there isn't much public access and there was a lot of confusion of whether that actually met the definition of a community fishing lake. So we are going to specifically define that section and move it back to statewide regulations.

And then the sections of the north and south Concho that are within the, that have a lot of the public access within the City of San Angelo, we are going to maintain the community fishing, the suite of community fishing lake regulations, which is a no length limits for the catfish and the gear restrictions. And we are hoping that our game wardens and biologists that have worked in that area and have tried to come up with something that will reduce some of the confusion that was with the anglers in that area, and also allow those persons who are fishing the south Concho some increased harvest and allowing to use the other gears as under statewide regulations.

I have one additional change that isn't reflected in your packet. That is on Toledo Bend reservoir. We are proposing to remove the length limit for spotted bass. We have an exception there on Toledo Bend. A twelve-inch minimum for spotted bass and if we do remove that length limit, the regulations for spotted bass will be the same on Toledo Bend as the length limit is statewide.

A few weeks ago, we met with the Louisiana fisheries staff, and we do that on occasional basis, and discuss standardization of regulations on Toledo Bend to allow for anglers' enforcement, ease of enforcing those regulations. And this is one regulation that we did have some discrepancy with ours statewide, and we decided, they are going to try and pass that to their commission also.

And we are still pursuing one thing that we do have outstanding there, is the crappie regulations. We have a ten-inch minimum; Louisiana doesn't. And we are still discussing with them. We are hoping to continue to get those regulations on that reservoir as similar from both sides to the other as we can.

Those are all the regulations that we are considering at this time. We did present the first two regulations to our fresh water fisheries advisory board a few weeks ago, and they did concur with these regulations. And we will try to get them information on that change on Toledo Bend also. If you have any questions, I would be happy to answer those at this time.

COMMISSIONER HENRY: Any questions?

COMMISSIONER BROWN: What about mule deer? Are we going to —

COMMISSIONER RAMOS: This is per the agenda book, this freeze issue that we just addressed. Is that an issue, as it relates to fresh water fishing, or we should not worry about that?

MR. KURZAWSKI: Well, we do have, you can have some mortality of certain fishes, mostly gizzard shad, threadfin shad, things like that. But there isn't anything similar to the conditions that you would see on the coast that would cause some peril to any of the populations.

COMMISSIONER HENRY: Thank you, Mr. Kurzawski. Mr. Riechers?

MR. RIECHERS: Good morning, Commissioners. My name is Robin Riechers, and I am with the Coastal Fisheries Division and I am here to briefly present to you the scoping issue for the statewide hunting and fishing proclamation. Coastal Fisheries will be scoping the issue of live mollusk harvest and other intertidal species along the Texas coast.

Significant harvest of these organisms can occur during critical periods within the year, and that critical period could be caused by a lot of the people being on the beach at a particular time. The life history characteristics of the animal. Where they are aggregated in a particular place at a particular time, or during a very low tide event, or all of those things coming together at the same time. The impact of harvest on these species is unknown, although several, as I have mentioned, several species have life history that would make them vulnerable to potential overharvest.

A species of concern include animals such as the hermit crab, sea urchins, periwinkles, and the lightning whelk. Actually, on the lower left hand corner for you is the lightning whelk. It is the state shellfish of Texas. An example of how that can be particularly vulnerable because of its life history is, it is active in the winter time. It breeds on the flats during the winter. And it does that in the daylight.

So it basically is very easy for overharvest or for potential overharvest to occur. The other animal, on the lower right hand corner, is actually taken for consumption purposes. It is marsh periwinkle. And its defensive mechanism is actually to crawl up Spartina as a defense mechanism, making it potentially susceptible to harvest as well.

So that is kind of a life history, characteristics that can make those basically mollusk or intertidal species particularly vulnerable.

The regulatory options that we would be considering include area and seasonal closures during these critical time periods. Obviously, the other option is some sort of bag limit or aggregate bag limit of several of these species that could be included as well as, since we see quite a bit of this harvest occurring in commercial or commercial-like quantities.

We might consider adding some of those species to the non-game permit list, which would allow us to at that point, collect more information about that commercial harvester, if there is commercial harvest, and it would allow us then to really determine the impacts of that harvest. That concludes my presentation. I would be happy to answer any questions, if I could.

COMMISSIONER HENRY: Are there questions? Discussion?

(No response.)

COMMISSIONER HENRY: Thank you, Mr. Riechers. Mr. Berger?

MR. BERGER: Good morning, Commissioners. I am Mike Berger with the Wildlife Division. And I am here to talk to you about the potential changes of the hunting regulations for the '05-'06 hunting season, and rules affecting white-tail deer, mule deer, turkey and some other miscellaneous hunting provisions.

First thing, most of these are to simplify and consolidate some rules and regulations, to make things easier, or create more opportunity for the hunters. This map shows that there are currently seven different doe day configurations around the state regarding the number of days that does may be hunted with or without a permit. And as you can see, that is scattered around, and it could be confusing.

What we would like to consider as a potential is reducing the number of these to just three standard doe day configurations: four days, that is the goal; 16 days in the red and 23 days in the either brown, purple or maroon, depending on how your color vision sees that color. The 23 days is kind of an interesting option. If five of seven years it will be 23 days, but in those years where the first of November falls on a Friday or Saturday, it will be 30 days. And this is not a resource issue. But with this, the opportunity for hunting does would be maintained or increased.

Next, we have the one buck zones, and the two bucks, and the aggregate bag limit of those. Currently, there are 171 counties. That is the blue and the red, with a one buck bag limit, divided into those east and west zones. Hunters are restricted currently to take one buck from the blue zone, and one buck from the red zone, and not more.

The potential change would eliminate the zones and the aggregate bag, meaning that your three buck tags on your license could be taken in any three one buck counties, regardless of whether they are east or west. There are also 47 counties with a two buck limit. The same kind of restriction applies there, where you can take two bucks in any two buck county, but you could not use your third buck tag in another two buck county.

So with the change, we would look like something like this, and we would have one buck counties and two buck counties and of course, the area in the white to the south are three buck counties. But you can take your deer in any counties you wish, so long as you did not exceed the individual county bag limit. So I think that is a simplification and an increase of opportunity there.

Now for the past two years, going into our third year now, we have had the six county buck regulation or antler restriction, as we have called it. There has been a one buck bag limit. During that experimental period their legal bucks were an animal with one un-branched antler or six points on one side, or at an inside spread of 13 inches or greater.

The potential for change is to remove the experimental part of this and make it a standard buck regulation in those counties. We would propose to remove these six points on one side criteria, because most bucks that would have that would also exceed the 13-inch inside spread limitations. So this is a simplification. You would have your choice of an unbranched antler, or a 13-inch inside spread.

In addition, because of the success of this program so far, we would increase the bag limit to two bucks, provided that one or both would have an unbranched antler. So this means that if a hunter is out there, and he doesn't have to wait for the 13-inch spread buck, he can take a buck with a single unbranched antler. Or he can take two of those animals.

In addition, we have done scoping in 15 surrounding counties so far, held those scoping meetings, and we have seen high interest and apparent support for similar regulations in these other counties. And an opinion questionnaire is being mailed to landowners and hunters in those counties right now, to ascertain their interest in having this regulation in their counties. And we will come back to you in January with the results of that investigation, and have proposals for you.

The next item is an appeals process for deer permits. The white-tailed deer advisory committee has recommended that we have such a process for deer permits. Under this process, a denied or dissatisfied or prospective permittee who was denied could appeal that decision to a committee that would be composed of senior wildlife division staff.

And the results of those appeals would be reported to the white-tail deer advisory committee. A similar process would be applied, this would just be for the Managed Land Deer Permit and the Antlerless Deer Control Permits.

And in the spring, we will come back to you to make this consistent with the Triple-T and the Deer Management Plan permits as well. Trailing wounded deer with dogs. Several counties were removed from this restriction several years ago, and two were overlooked. And the law enforcement and wildlife division have determined that the original reason for this restriction is no longer valid, so these two counties should be removed from the prohibition against trailing deer with dogs.

With regard to mule deer, a Managed Land Deer Permit program for mule deer was requested by landowners in 2002, and a regulations process to implement this was put together and the proposal was tabled by the Commission at its May 2003 meeting, because of the public concerns that were expressed at that meeting. Upon continued request from landowners and others for such a program, the staff continued to work and work diligently with landowners, managers, hunters and others — met with them many times and in many places to find a workable compromise out there.

This program would apply in the Panhandle, the southwest Panhandle and the Trans-Pecos. And you can see those current seasons up there. What the program would do would be to extend the permits for people in this program, the permits would be valid from the first Saturday in November until the end of the regular season, that you saw on the last slide, a nine or 16-day regular season. It would require a written wildlife management plan. It would require the current years population data and population data from two preceding years. It would require the two preceding years harvest data on that property. And it would require initiation or the completion of three habitat management practices.

This is important. This is a habitat based plan. To be in this program, just as for white-tailed deer, you have to be working on habitat. And again, the season would start the first Saturday in November and go through what is now currently the regular season.

Hunting by remote control. Hard to find a right name for this process, but we have become aware that there is the possibility that the internet could be used to harvest wildlife resources, using remotely controlled weapons. So the white-tail deer committee recommended that we take some action on this.

And so we are working on a proposal that would require that a person hunting game animals or game birds be physically present when the hunting takes place. And we would also prohibit the use of remotely controlled weapons to take wildlife resources. Again, we still have to work out the specifics of this. But that is something that we'll be bringing back to you also.

We move on to turkeys similar to what we did with one buck, two buck and doe days. We have a variety. This is spring turkey first, we have a variety of different season lengths and bag limits around the state.

We propose to consolidate that in the spring, for Eastern turkeys and the area in southeast Texas four of which counties are Eastern turkeys and others are Rio Grande, the old prairie region has Rio Grande turkeys. That would be the April 1 to April 30 lengthened season that the Commission approved for the upcoming spring season. And the rest of the state in the spring would have an extension of the turkey season, but it would start on the Saturday closest to April 1, and run for 44 days.

And those would, all these would be gobblers only, in the red parts, there would be a four gobbler limit and in the brown portion, one gobbler, either Rio Grande or Eastern. Fall turkey seasons. Not quite as many colors, but there is still a lot of different options there. Running different lengths and with different bag and sex restrictions.

We would talk about changing that to a red area which is consistent with the north zone, white-tailed deer hunting season, running from the first Saturday in November to the first Sunday in January. Four birds, either sex. The yellow would be consistent with the South Texas white-tail season being the first Saturday in November to the third Sunday in January. Four birds. Gobblers or bearded hens.

And I should mention that both proposals, the spring and the fall include opening a season in Zapata and Cameron Counties, which were previously closed, so both will open that season. So this is a simplification and does open that season.

We are also looking at a youth-only spring turkey season, that was requested by the National Wild Turkey Federation. And this would allow a youth-only spring turkey season on the weekends immediately prior to and immediately following the opening of the Rio Grande turkey seasons.

And the last item, not part of the statewide, but just as a little briefing on this, there is discussion about how to have additional opportunity hunting opportunity for whitewing doves, particularly along the Highway 90 corridor, west of San Antonio. Trying to increase that opportunity as whitewing populations continue to expand all over the state.

At present, there is a special whitewing area in red, at which runs the first two complete weekends in September with half days, ten birds in the aggregate. No more than five of those can be mourning doves. So it is an area that focuses the harvest on whitewing doves.

The question now is how to get more of that harvest in the remaining white area in the south zone, which is a mourning dove zone, which doesn't open until the Saturday after the 20th of September. And by that time, many of the whitewing doves have moved onto greener or browner pastures. And not available there.

So we are looking at ways to try to expand in probably the most fruitful way. And we are discussing with the Feds ways to do that. But it is to expand the special whitewing area to encompass a larger area of South Texas, whether that is to Highway 57 or Highway 35, or Highway 37 or all of the south zone, are all options that can be considered, and it probably would involve a penalty of some sort if we do this. A penalty of some sort with regard to the mourning dove bag, because there is a concern about over-harvesting mourning doves in the southern part of the state, early in the season.

So I just wanted to bring this to your attention that we are working on this, and looking at various options and discussing those options with the Feds. So that concludes my presentation. I will be happy to respond to questions you might have.

COMMISSIONER HENRY: Questions? Commissioner Holmes.

COMMISSIONER HOLMES: You're not looking at a special whitewing zone around here or San Antonio? There seem to be an awful lot of whitewings in this part of Texas.

MR. BERGER: You notice this past season, we were able to move the central zone of Texas around Highway 1604 around San Antonio, so to make hunting inside that available earlier. Let me be sure I understand your question again.

MR. COOK: I think the key there, sir, is that our earliest opening date that we can have for dove hunting in the central zone is September 1.

COMMISSIONER HOLMES: That is correct.

MR. COOK: That's the earliest it can be, and the bag includes whitewing.

COMMISSIONER HOLMES: So you are already there. Yes.

MR. COOK: So we are there. And what we are looking for, and Mike makes a great point here, with the whitewings spreading like they have, you will know and it is just kind of a balancing act between us and the U.S. Fish and Wildlife Service, really. If we had total control of it, we would probably for the special whitewing areas that are open prior to the south zone opening. We might expand that red area all the way out to 37 and all the way up to 90. And we're just not sure what we are going to have to give up to get there.

MR. BERGER: That's right. Because there will be a trade off, I am sure.

COMMISSIONER PARKER: But you know that is where some additional research on that item comes in, that is critical for us to go, you know what we have talked about, getting additional research and facts and figures to take to the Feds.

MR. BERGER: We do have some of that research underway, Commissioner, to look at and we started collecting wings this past season, along that Highway 90 corridor to determine when those birds were fledged. That is the issue, is how late actually the mourning doves are fledged in that area. So that you don't increase the other harvest.

COMMISSIONER PARKER: Don't the geographic issues of the grid, when they do their counts, aren't there some geographic issues of them requiring us to take our counts on roads that we were taking our counts on in the 1950s or '60s.

MR. BERGER: That, too, is an issue.

COMMISSIONER PARKER: Now it is subdivisions, and shopping centers and four-lane, underground wires and —

MR. BERGER: That too is an issue about how the data from those kinds of surveys have indicated call count surveys have indicated that the mourning dove populations basically nationwide, are declining. Some of the people taking those surveys, their hearing may have not improved over that period of time. They may not hear as well.

COMMISSIONER PARKER: Like me.

MR. COOK: I think the really pleasant thing about this discussion is we have got a resource here that has become very abundant and opportunity is out there and I appreciate staff's effort to push for that as far as we can go and still conserve the resource and provide more hunting opportunity.

COMMISSIONER BROWN: I would be remiss if I don't discuss the mule deer extended program. It seems there are an awful lot of very passionate people in West Texas that are opposed to this. And when you talk to them, they really present a sound case and reasons why we should not do that. Are we fully on board with this?

MR. BERGER: Yes, sir.

COMMISSIONER BROWN: You know, at one point I thought we had considered maybe doing only a pilot project with this extended program.

MR. BERGER: Well, we, as I said, the staff has worked with a lot of people out there. Talked to a lot of landowners, held meetings one on one. Held meetings with groups, and I think has done a great job in coming up with this. They are removing what had been a controversial aspect of this, which was hunting later than the current regular season. That is no longer part of this proposal as it once was. And it is habitat based, and it is completely voluntary. I mean, no one will be forced to enter into this program.

COMMISSIONER PARKER: May I ask you a question. How many landowners are pushing to have this opportunity?

MR. BERGER: Well, I couldn't tell you offhand.

COMMISSIONER PARKER: How many acres does that represent?

MR. BERGER: Let me get our desert game or resident expert from that part of the world. This is Clay Brewer, who did this due diligence out in West Texas.

MR. BREWER: It is a considerable number of landowners. I couldn't give you or quote you a fact, acreage wise right now —

COMMISSIONER PARKER: But how many landowners, then. Twelve? Three? 18?

MR. BREWER: Well, it comes from hunters and landowners. I would say the core group, there are probably ten, 15 people that push the original proposal. It has expanded some since then. So I have seen —

COMMISSIONER PARKER: Does that group have a name, or anything?

MR. BREWER: No. There are various groups, but no, sir. No. These are landowners that push the original proposal.

COMMISSIONER PARKER: Okay. Ten to 15, do you think?

MR. BREWER: Well, the core group that has expanded, because as Mike mentioned, the controversial aspect of the previous proposal was the fact that the extended season failed during the breeding season. And so we believe that though if we were going to have a proposal, the best shot at something that might be accepted by a majority of folks out there would be to find some compromise.

For that to work, those that were interested in the previous proposal would have to be willing to give up the breeding season, and then those that didn't want it at all would have to accept some form of extended season, so in an effort to fit somewhere in the middle, we changed the extended season portion of it. In fact, the proposal looks exactly the same with the exception of the extended season. We moved that early, beginning the first Saturday in November.

So to answer your question, there was a — best I can tell — a considerable number of folks that once that breeding season was pulled out of it, a lot of those folks said, well, if you have done that, then that doesn't bother me any more.

COMMISSIONER PARKER: Now this association, is there a mule deer association out there of some sort?

MR. BREWER: Yes. It is the Desert Mule Deer Association.

COMMISSIONER PARKER: The Desert Mule Deer Association. Is the leadership of that association for this proposal?

MR. BREWER: No. They are opposed to that proposal. Mike Livingston is representing the organization. He is back here.

COMMISSIONER PARKER: How many landowners in that association and opposes this, as compared to how many landowners are wanting this?

MR. BREWER: I can't answer. I don't know.

COMMISSIONER PARKER: Don't you think, is that a legitimate question?

MR. BREWER: Yes. It is a good question. It is a new organization that just recently formed. They had to get together in Alpine. There were 200 and something folks at their get together. I don't know where they stand on the issue, where all of them do. I know where the people that I visited with — I know where the leadership of that organization stands. I have visited with their board of directors.

COMMISSIONER PARKER: How do they stand?

MR. BREWER: Most of those guys are opposed to it. I don't think all of them. I think there are probably one or two that may not be against it. But I think the majority of them are opposed to the proposal.

COMMISSIONER PARKER: One or two are for it?

MR. BREWER: Right.

COMMISSIONER PARKER: One or two are for it, and maybe 190 are against it?

MR. BREWER: No sir. I am talking about the board of directors. We are talking eight or ten folks. I don't know about the membership. I can't tell you that. It is a fairly new organization. Which, by the way, the organization was not formed. I have been to several of their meetings, and the purpose of that meeting is to explore opportunities for doing things that are best for mule deer.

And I look forward to working with that group, because I think we can do some good things together. But the organization was not formed to fight MLDs. They are looking at mule deer. But they are certainly — the leadership of that organization, several of them have made it very clear to me that they are opposed to this, even this amended proposal.

COMMISSIONER PARKER: Why are they opposed to it?

MR. BREWER: Well, there are a number of reasons. I hear things like number one, it is not truly a voluntary program. I would be forced to get into it. I hear other issues, everything from —

COMMISSIONER PARKER: Is that true? Is that?

MR. BREWER: I believe it is a voluntary program. It is exactly what I think it is.

COMMISSIONER PARKER: Do they maybe — do they feel like that they have to, for the economics of it, that they feel like they have to get into it to protect their economic base that the mule deer lends to that certain property that they might control?

MR. BREWER: Well, I haven't heard it from that angle. It has been more along the lines of: it forces me, if my neighbor enters the program, it forces me to enter the program, otherwise, he is going to be harvesting all the good deer.

COMMISSIONER PARKER: Drawing deer off of my property onto his property because of the extent —

MR. BREWER: Right. And to me the argument, as Mike said, would be this is a habitat focused program. If your neighbor is doing good things for mule deer, I think everybody benefits. So there are lots of ways to look at some of these arguments. The big thing was that hunting and breeding season. I mean, that is all there was to it. And so — but the majority of these guys that were still asking for this program, they are saying look, just give us more time for selective harvest and removing does if we have that problem. And so that is the approach that we took. That was the best that we could do to fit in the middle.

COMMISSIONER HENRY: Mr. Ramos?

COMMISSIONER RAMOS: Yes. I personally want to commend staff. Mike, you and your staff, for taking this issue. I know it came up a year and a half ago and two years ago. At that time, I felt very strongly that we should extend the managed land deer permits to the mule deer arena.

And for the record, it is strictly a voluntary program. Nobody has to be part of it. Secondly, I think that in time, it will prove just like it has in the white-tailed deer arena that it really improves the resource and it is habitat sensitive, which I think ensures everything. So I personally am in favor of this, and I commend staff, and Mike, for working with our constituents in coming up with a compromise that we can live with, and as we work our way through it, it can also be fine-tuned, just like we have in the white-tailed deer arena. So thank you.

MR. BERGER: Thank you.

COMMISSIONER MONTGOMERY: Could you summarize what the habit practices you are seeking are? What the benefits to habitat are going to be?

MR. BERGER: Well, a number of habitat practices, land and water conservation, whether we are talking about grazing modifications, whether we are talking about brush control, water features, I think just overall, good grazing, a sound grazing scene. Stocking rates, protection of riparian areas, brush control, fire if appropriate. All kinds of things like that.

COMMISSIONER MONTGOMERY: So it would be required to implement three of those, at the level that our biologists deem is appropriate to have a significant impact on the habitat? If they don't maintain them, then they lose their MLD permit?

MR. BREWER: That's part of the agreement, yes, sir.

MR. BERGER: And then, as it is, it is the same as with white-tail.

COMMISSIONER MONTGOMERY: Right. Get it on the record.

COMMISSIONER RAMOS: And just for the record, also, we are merely creating a tool by which those landowners that want to perhaps improve the quantity of their mule deer in their populations that they can access it.

MR. BREWER: Yes.

COMMISSIONER RAMOS: But it is not mandatory on anyone. It is strictly voluntary.

MR. BREWER: That is correct, sir.

COMMISSIONER RAMOS: It would seem to me that if you want to be progressive and want to stay in tune with the times and improve your habitat, and improve the quality of your mule deer, that here is another tool, another opportunity that is there for them.

MR. BREWER: Yes, sir.

COMMISSIONER MONTGOMERY: Clay, in your professional judgment, if landowners take those measures, what effect will that have on the population and quality of the deer herd on those sites?

MR. BREWER: Well, I think any habitat management is good. I mean, it is tough country, and those landowners do a good job out there of managing their country, and I mean it is raining right now. And it makes all of us good managers. But it would have a tremendous impact. And I think it is important to point out that a lot of landowners already do those things. They are already doing great things for wildlife out there.

Which on one side, that is one of the arguments, that so what you are really saying is you are rewarding those that do a poor job with habitat management. I mean, we are doing great things at my place, but my neighbor is not. So you are rewarding him. I don't want in the program, but you are giving him this incentive to this extended season incentive.

COMMISSIONER MONTGOMERY: But the MLD is not going to people who do a poor job, by definition. It is going to people who are doing good things.

MR. BREWER: Right. And the bottom line is to me, I believe that spills over. I think it is a positive thing, that even if the guy is doing a bad job, it encourages that guy to do a better job of managing habitat.

COMMISSIONER MONTGOMERY: But do you believe it increases the population and the quality of the deer if those measures are taken.

MR. BREWER: Well, yes. I definitely do.

COMMISSIONER PARKER: Robert, that's your country out there. What is the —

COMMISSIONER BROWN: Well, some of the concerns have already been covered. But there is passion on both sides of the issue, and vocal. And should be. But changing the time frame, I know was a big concern about during the breeding time frame. That, to me, has eliminated a big part of the opposition to it. But there is also concern about, well, if I don't participate, then they are going to be drawing all the deer off of our place onto their place. So therefore, we are going to be forced into participating in the program.

MR. BREWER: And I think it is important to say that we took the rut out of this thing. But I think there are some, well, I know there are landowners that I have visited with that believe that all right, we'll get it started this way, and it will end up. We'll be right back here next year or the year after. I hear that repeatedly, just to draw the rut into this thing. So that is a part of it, a part of the discussion with landowners out there.

COMMISSIONER RAMOS: One comment. With regards to the movement of deer, under current regulations, the way it is now, any landowner could feed and impact the movement of deer, whether we have MLDP or not. Some LDP permits won't impact that. Just as it is today, if you have two adjoining landowners and one is aggressively feeding for whatever reason, that could impact the movement of deer. So the argument that it is going to impact the movement, I think it is not going to make any difference whether we have MLDP or not. It depends on the management practice of each individual landowner.

MR. BREWER: And one of the positive things to me, in the example where the guy is doing a poor job, or maybe some of the neighbors talk about overharvest. A benefit to this would be a more restricted harvest.

COMMISSIONER PARKER: Are the mule deer — I have been told by some other people that white-tailed deer are sort of locked into a certain space, whereas mule deer are a little bit more nomadic. They range, and they really don't have a certain route that they go. They just like to range where they don't have competition.

MR. BERGER: Clay.

MR. BREWER: You hit on that source of controversy in the last proposal, hunting the rut. It was because of the large home range sizes of mule deer.

COMMISSIONER HENRY: Any other questions? Before we ask Mike to step aside, let me ask, are there any other related questions even to modifications and regulations that we need to consider?

COMMISSIONER PARKER: I have got a question about that mule deer thing.

COMMISSIONER HENRY: Commissioner Parker.

COMMISSIONER PARKER: On the real turkey season, has there ever been any consideration given to the protection of hens in the fall?

MR. BERGER: In most parts of the state, we are blessed with large populations of turkeys. And in fact our turkey population —

COMMISSIONER PARKER: What about in certain areas of the state?

MR. BERGER: We have research ongoing right now. Once in the Panhandle, once in the southern rolling plains or the western hill country, western Edwards Plateau and South Texas. And those studies should reveal some information about whether the impacts of hunting hens in the fall, the role of that in population dynamics.

COMMISSIONER PARKER: When will that be completed?

MR. BERGER: I think probably in about another three years.

COMMISSIONER HENRY: Other questions? Comments?

(No response.)

COMMISSIONER HENRY: Thank you Mike, thank you.

MR. BERGER: Thank you.

COMMISSIONER HENRY: There is no further action required on that item, we will move to Item No. 4. Permission to publish proposed changes.

Ms. Ann Bright, your presentation please?

MS. BRIGHT: Good morning. I am Ann Bright, general counsel, and I am here to discuss the rule review of Chapters 59 and 69 of the rules of the Texas Parks and Wildlife Department. It is required by law we publish notice that we are going to review these two chapters in the Texas Register. We received no publication on that.

We considered, among other things, whether the reasons for initially adopting the rules continued to exist. We also reviewed the statutory requirements to adopt the rules, and the statutory requirements associated with these rules. These are the recommended changes.

The first in the local parks planning assistance program is to standardize the eligibility criteria. Currently, there are different criteria. This is a program where we provide assistance to mainly the smaller communities and it was a different population density requirement for cities and counties, and we're actually making that simpler.

Threatened, endangered and protected plants, we are going to clarify some of the requirements for commercial plant permit. We have also noticed that there are some species that have been added to the endangered and threatened plant list by your materials say the USDA. Actually, the USDA has a very good database of those, but the U.S. Fish and Wildlife Service actually adopts rules regarding those threatened and endangered plants.

We also notice that there is some scientific names that have changed over time, and we are going to correct those. And we consider all of those items really just cleanup. We are also adding something so that as the scientific name changes, it is clear that that doesn't change the fact that these are listed.

Fish and wildlife values, we are going to revise the definition of endangered and threatened species to account for the deletion of a previous cross referenced rule. Again, as we are going through these and cleaning up our rules, we are noticing that we have to go back sometimes and correct some citations. We are adding a reference to the American Fisheries Society publication regarding fish values.

There was a reference in the provisions regarding wildlife rehabilitation permits to department sponsored rehabilitation conference that permittees are required to attend. We do not do that anymore. There is a conference at which they can obtain the necessary information. Under this subchapter, we are going to address, and really these are just cleanups, renewal and subsequent permits, and the sale, barter and exchange of specimens collected under the permit.

And then throughout we noticed that there was some citations that needed to be changed, and some language that really just needed to be cleared up to make it a little clearer and more easily understood. And we are here today to request publication of those changes, and we'll come back to you in January after we receive comments on those. And that is all I have. I'll answer any questions.

COMMISSIONER HENRY: Thank you. Is there any discussion by the Commission?

(No response.)

COMMISSIONER HENRY: If there are no further questions or discussion, without objection, I authorize staff to publish this item in the Texas Register for the required public comment period. Ms. Bright, would you continue with Item No. 5, permission to publish, please?

MS. BRIGHT: Yes, sir. For the record again, I am still Ann Bright, general counsel. I am here on another rule review matter, which is again to kind of give you a little background, and I know that we have gone through this before, we are required by the Government Code to periodically review our rules at least once every four years. We have to determine whether the reasons for adopting the rules continue to exist.

We'll publish a notice in the Texas Register, as we have done with the previous rule reviews, and we will review these and come back to you and request either re-adoption, adoption with changes or repeal, based on our review, and on any comments that we receive. And we are due for Chapter 57, which is Fisheries. And that is it for that presentation. I would be happy to answer any questions.

MR. COOK: Gentlemen, I would like to point out that although this may seem rather mundane in the process, it is required. We do take it very seriously. We look at the opportunity to correct, to strengthen, to simplify where we can and it is just not a very sparkling thing to have to do, but it is one of those things that I believe bottom line, ends up with a better product. And we do take it very seriously.

COMMISSIONER HENRY: Is there any discussion by the Commission?

(No response.)

COMMISSIONER HENRY: If there are no further questions or discussion, without objection, I authorize staff to publish this item in the Texas Register for the required public comment period. Is there any other business to be brought before this Committee? Mr. Cook?

MR. COOK: No, sir. I don't believe so. Thank you.

COMMISSIONER HENRY: Hearing none, this Committee has completed its business and we will move on to the Finance Committee.

(Whereupon, the meeting was concluded.)

CERTIFICATE

MEETING OF: Texas Parks and Wildlife Commission
Regulations Committee
LOCATION: Austin, Texas
DATE: November 3, 2004

I do hereby certify that the foregoing pages, numbers 1 through 51, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Penny Bynum before the Texas Parks and Wildlife Commission.

11/10/04
(Transcriber) (Date)
On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731


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