Commission Agenda Item No. 18
Action
Rules Regarding Eligibility of Real Property for Inclusion in State Parks System
Mandated by Legislation (H.B. 12)
August 23, 2007

1. Introduction.

The Texas Parks and Wildlife Department proposes new §59.330, concerning Eligibility of Donated Land for Acceptance and Inclusion in State Park System. The new section implements the requirements of House Bill 12, enacted by the 80^th Texas Legislature. House Bill 12 amended Parks and Wildlife Code, Chapter 13, by adding §13.0075, which requires the commission to adopt criteria by rule for determining the eligibility of real property that is donated to the department for inclusion in the state park system.

Among the purposes of the state park system is the management and conservation of natural and cultural resources and providing outdoor recreational opportunities, contact with and understanding of the natural world, and awareness of the diverse cultural and historical resources that make Texas unique. The state parks system consists of state parks, state natural areas and state historic sites.

The proposed new rule would establish eligibility criteria for the acceptance of land donated for inclusion in the state park system. To be considered for inclusion in the state parks system, the prospective donation should substantively address specific criteria. To that end, the proposed new rule would establish six general categories for evaluating the suitability of donated land for inclusion in the state park system: contiguity to existing parkland, recreational value, natural resource value, historical value, and size, as well as ancillary values. To some extent, the criteria are interrelated, but if a prospective donation satisfies any criteria, it is a candidate for inclusion in the state park system.

In general, the department will consider accepting lands that are near, adjacent to, or within the boundaries of existing parkland in order to expand, consolidate, or augment the values of existing parkland. In the department’s view, this is a prudent practice. In most instances, the addition of land to existing park facilities will not significantly increase the department’s operating costs since the added land usually can be managed by existing staff. Also, the acceptance of land adjacent to existing parkland often helps to address access issues, provide a buffer to development, and preserve or enhance the values of existing parkland.

The recreational value of donated land is a high priority. The types of features that the public typically finds appealing are those that allow for popular outdoor activities. One of the most appealing features is water. In many parts of Texas, the climate is conducive to swimming, boating, and fishing almost year round. Therefore, the presence of a water feature capable of sustaining recreational use is an important factor in considering the acceptance of a donation. Along the same lines, lands that present interesting or aesthetically pleasing landscape features are typically high-demand areas for recreation, including hiking, camping, and nature viewing. This also would include other features such as caverns and sinkholes, and areas offering impressive or panoramic views of the surrounding countryside. Similarly, cultural resources are important. Archeologically or architecturally significant structures or buildings that relate to pre-European and colonial heritage or that are representative of a particular era or way of life are an important tool in informing and educating the public about the people who made Texas home in preceding generations. A potential donation offering significant additional opportunity for these activities would therefore be attractive to the department.

Natural resource value is also an important factor to consider in a donation. Texas is ecologically varied, encompassing mountains, deserts, prairies, karst topography, coniferous forests, wetlands, and coastal areas which are habitats for hundreds of species of animals and plants as well as for humans past and present. A prospective donation that offered the opportunity to significantly enhance the department’s inventory with regard to natural resource value would therefore be considered for acceptance.

Texas has a rich past that is reflected in and informs the present. Property that has significant historical value is therefore useful in illustrating the cultural themes of Texas or national heritage, the political, economic, military, or social history of Texas, or aspects of historic or prehistoric people and events. Prospective donations that would help the department in reflecting the rich heritage of the state would therefore be considered for acceptance.

The department will also consider accepting prospective donations of land if the property offers significant ancillary value, but otherwise does not substantially satisfy the other criteria. For instance, if a piece of land functions as a travel corridor or harbor for wildlife, offers an impressive view, or is in an important or critical watershed, the department would consider acceptance. Also, the department will consider land that would function as a buffer between development and existing parkland.

The size of a prospective property is important. A large parcel of land that satisfies the criteria of the proposed new rule, provided it is not irreparably damaged, polluted, or would require large amounts of money to be made fit for recreational opportunity, is preferred, but a small parcel could be accepted if it meets any of the criteria established by the proposed new rule.

As noted, the listed criteria are often interrelated. For example, many of the features that contribute to the recreational value or natural resource value of land also contribute to historical or interpretive value of the land. For example, while water features may contribute to land’s recreational value, a water feature may also provide an opportunity to educate the public about the role of water in sustaining Texas’ natural resources. Likewise, landscape features and cultural resources that contribute to land’s recreational value, also contribute to the land’s natural resource value and enhance the department’s ability to provide lessons in science and history. Similarly, land that that is contiguous to existing parkland may also address ancillary values, by enhancing viewsheds or providing buffers from development.

Subsection (b) of the proposed new rule provides that in addition to the criteria established in this section, the department will consider whether the acceptance of the donated land for inclusion in the state parks system would contribute to the goals established in the department’s Land and Water Resources Conservation and Recreation Plan. In 2001, the 77^th Texas Legislature enacted Parks and Wildlife Code, §11.104, directing the department to develop a Land and Water Resources Conservation and Recreation Plan (the Plan). In November 2002, the first Plan was adopted. A revised Plan was adopted by the Commission in January 2005. The Plan is intended to provide strategic direction for the department. Among other things, the Plan addresses conservation and recreation priorities for the department.

Subsection (c) of the proposed new rule would clarify that this rule is intended to address only the acceptance of donated land for inclusion in the state parks system. The department may accept land or an interest in land for purposes other than inclusion in the state parks system. For example, the department may accept real property for purposes of wildlife management, operation of a fish hatchery, or law enforcement training.

Subsection (d) of the proposed new rule would stipulate that the department is not compelled to accept a prospective donation simply because the land meets one or more of the criteria of the new rule. If some provision of the donation such as a deed restriction or covenant would preclude the effective use of the land as parkland, or if the acceptance of the property would result in an increase in operating or maintenance costs, the department could choose not to accept the donation.

Subsection (e) of the proposed new rule would clearly stipulate that the decision to accept or decline donated land for inclusion in the state park system would be solely at the discretion of the Texas Parks and Wildlife Commission. The department does not wish for the proposed new rule to suggest to anyone that land can be donated to or declined by any entity other than the body that is statutorily constituted for that purpose.

2. Fiscal Note.

Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule as proposed.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the establishment of criteria to inform the public and assist the department in its decision-making process regarding the acceptance of donated land to be included in the state parks system as directed by the Texas Legislature.

(B) There will be no adverse economic effect on small businesses or microbusinesses, as the rule will not affect businesses.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as the department has determined that the rules as proposed will not impact local economies.

(D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

(E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Ted Hollingsworth, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4520 (e-mail: ted.hollingsworth@tpwd.state.tx.us).

5. Statutory Authority.

The new rule is proposed under the provisions of House Bill 12 as enacted by the 80th Texas Legislature, which requires the commission to adopt criteria by rule for determining the eligibility of real property that is donated to the department for inclusion in the state park system.

The amendment affects Parks and Wildlife Code, Chapter 13.

§59. 330. Eligibility of Donated Land for Acceptance and Inclusion in State Park System.

(a) Any land donated to the department is eligible to be included in the state park system, provided the acceptance of the land substantially satisfies elements of one or more of the following criteria.

(1) Contiguity with existing land in the state parks system. The donated land is near, adjacent to, or within the boundaries of an existing unit of the state parks system.

(2) Recreational value. The donated land possesses a high potential for providing popular or critical opportunities for recreational enjoyment of the natural world by the public. Such potential is characterized by:

(A) water features such as springs, creeks, bayous, rivers, lakes, or coastline;

(B) landforms such as mountains, hills, canyons, etc., that are suitable for hiking, camping, or other types of outdoor use that are typically sought after or enjoyed by the public;

(C) underground features such as caves, caverns, or sinkholes;

(D) significant cultural resources;

(E) significant aesthetic resources, such as views or panoramas; or

(3) Natural resource value. The donated land:

(A) contains a high-value natural feature or features;

(B) is habitat for rare or endangered species of plants or animals;

(C) reflects a representative ecosystem of the state or could be restored or managed to reflect a natural ecosystem; or

(D) significant geological or paleontological resources.

(4) Historical or Interpretive value. The donated land provides historical or interpretive value consistent with the department’s Land and Water Resources Conservation and Recreation Plan.

(5) Ancillary values. The donated land offers or contains significant or valuable:

(A) viewsheds;

(B) wildlife corridors;

(C) watersheds; or

(D) buffers from development for existing parkland.

(6) Size. The department shall consider the size of a donated parcel of land as it relates to the factors set forth in paragraphs (1)-(5) of this subsection.

(A) Small parcels (less than 500 acres) should be contiguous to existing properties in the state park system to be considered for acceptance, unless the value of the parcel in terms of the criteria listed in paragraphs (1)-(5) of this section is such that the department has a compelling interest in accepting the land as a donation.

(B) Large parcels (greater than 500 acres) need not be contiguous to existing properties within the state park system to be considered for acceptance, provided that acquisition is consistent with the department’s Land and Water Resources Conservation and Recreation Plan.

(b) In addition to the criteria established in subsection (a) of this section, the department will consider whether the acceptance of the donated land for inclusion in the state parks system would contribute to the goals established in the department’s Land and Water Resources Conservation and Recreation Plan.

(c) Nothing in this section is intended to address or limit the acceptance of donated lands for purposes other than inclusion in the state parks system.

(d) Regardless of whether the property meets the criteria in subsection (a) of this section, the department may decline to accept the donation of any parcel of land. The reasons for declining a prospective donation may include, but are not limited to, lack of adequate access, deed restrictions, use agreements, previous land uses, operating and maintenance costs or any other factors would make the use of the land impractical or problematic with respect to the department’s mission.

(e) No donated land will be added to the state park system unless the land is formally accepted by the Texas Parks and Wildlife Commission voting in open session. The Texas Parks and Wildlife Commission, in its sole discretion, may accept or decline any proposed donations of land for inclusion in the state park system.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt.

Issued in Austin, Texas, on