TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 57. FISHERIES

SUBCHAPTER O. COASTAL MANAGEMENT AREAS

31 TAC §§57.1010 - 57.1012, 57.1015

In a duly noticed meeting on November 2, 2017, the Texas Parks and Wildlife Commission adopted new §§57.1010 - 57.1012 and §57.1015, concerning Coastal Management Areas. Section 57.1010 is adopted with changes to the proposed text as published in the September 29, 2017, issue of the Texas Register (42 TexReg 5231). Sections 57.1011, 57.1012, and §57.1015 are adopted without change and will not be republished.

The change to §57.1010, concerning Applicability, corrects an inadvertent error in the section number. In the proposed text, the section number was published as §58.1010, which is incorrect.

The department has acquired or is in the process of acquiring several tracts of land along the Texas coast. The primary intent of the acquisitions is to conserve and protect open space coastal habitat for ecological benefit, but the department has also determined that these areas can provide public recreational enjoyment consistent with sound ecological management. Therefore, the department is creating a new class of wildlife management area to be called a Coastal Management Area (CMA). At least initially, the CMAs established under the new rules will be limited to unsupervised primitive use activities; thus the new rules create the first two CMAs, establish rules of conduct for public use of CMAs, and provide penalties for violations of the rules.

New §57.1010, concerning Applicability, stipulates that the rules of the subchapter apply to all CMAs regardless of the presence or absence of boundary markers. Because at least initially these CMAs will not have full-time, on-site staff, it is necessary to make clear that the designation of a tract of land as a CMA imposes the rules of the subchapter on the tract of land even if the physical boundaries of the tract are not indicated by signage or fencing.

The new section also identifies those tracts of lands designated as CMAs. Follets Island CMA is on a barrier island between Christmas Bay and the Gulf of Mexico in Brazoria County. The Matagorda Peninsula CMA is on a barrier island between East Matagorda Bay and the Gulf of Mexico in Matagorda County.

New §57.1011, concerning Definitions, sets forth the meanings of specialized words and terms used in the subchapter in order to prevent confusion and promote compliance and enforcement.

New paragraph (1) defines "airboat" as "a boat powered by a mechanical propulsion system that drives air, including, but not limited to a fan, propeller, or jet." The definition is necessary because the rules prohibit the use of an airboat on a CMA.

New paragraph (2) defines "arms and firearms" as "any device from which shot, a projectile, arrow, or bolt is fired by the force of an explosion, compressed air, gas, or mechanical device, including, but not limited to, rifle, shotgun, handgun, air rifle, pellet gun, longbow, cross bow, sling shot, blow gun, or dart gun." The definition is necessary because the rules prohibit the display or discharge of arms and firearms except by persons engaged in lawful hunting activities.

New paragraph (3) defines "camping" as "the use of CMA lands for overnight accommodation, which includes sleeping, the storage of unattended personal possessions, or the use of a motor vehicle as a lodging." The definition is necessary inasmuch as the rules place limitations on the frequency and duration of camping activities on CMAs.

New paragraph (4) defines "Coastal Management Area (CMA)" as "a type of wildlife management area classified under the provisions of Parks and Wildlife Code, §13.001, for purposes of managing coastal habitats and resources." The provision is necessary in order to provide for the promulgation of regulations governing CMAs.

New paragraph (5) provides a definition of "designated road" as "a constructed roadway indicated as being open to the public by either signs posted to that effect or by current maps and leaflets distributed at the area. Roads closed to the public may additionally be identified by on-site signing, barricades at entrances, or informational literature made available to the public. Designated roads do not include county or state roads or highways." The definition is necessary because the rules regulate the use of motor vehicles and off-road vehicles on CMAs.

New paragraph (6) defines "motor vehicle" as "as defined by Transportation Code, Chapter 541." The definition is necessary because the rules regulate the use of motor vehicles on CMAs.

New paragraph (7) defines "off-road vehicle" as "an ATV, a utility vehicle, a vehicle that may not lawfully be operated on a public roadway, or any vehicle that is manufactured or adapted for off-road use." The definition is necessary because the rules regulate the use of off-road vehicles on CMAs.

New §57.1012, concerning Rules of Conduct, prescribes specific provisions governing public behavior on CMAs.

New §57.1012(a) establishes general provisions. New subsection (a)(1) provides that the rules of conduct set forth in the subchapter apply on all CMAs except by written permission of the department or executive director, which is necessary to provide the legal basis for enforcement of the rules. The department considers that it may be necessary in certain unknown circumstances to provide for exceptions to the rules; thus, the rules allow the department or the executive director to address such eventualities by providing exceptions to the rules in writing.

New §57.1012(a)(2) provides an exemption from the rules for persons authorized by the department to conduct research on a CMA and department employees in performance of their duties.

New §57.1012(a)(3) provides an offense for failing to obey regulations posted at the area or policies established by order of the executive director, failing to comply with instructions on permits or area leaflets, or refusing to follow directives given by departmental personnel in the discharge of official duties, all of which are necessary to ensure that the department is able to effectively manage visitation to CMAs.

New §57.1012(b) sets forth provisions governing abandoned and unattended property, making it an offense for any person to abandon a vehicle or other personal property, leave a vehicle, boat, barge, or other property unattended in such a manner as to create a hazardous or unsafe condition, or leave property unattended for longer than 24 consecutive hours. The department considers that CMAs are intended to provide both environmental and recreational benefits to the citizens of the state and that the abandonment of personal property at CMAs is inimical to those interests; therefore, the rules prohibit such abandonment.

New §57.1012(c) prohibits the public consumption or display of an alcoholic beverage on CMAs. The department intends to allow the responsible consumption of alcohol on CMAs, provided there is no consumption or display of alcohol in a public place and such consumption does not disrupt the enjoyment of other park visitors.

New §57.1012(d) prescribes provisions governing animals and pets on CMAs. The department considers that dogs are human companions and a traditional form of retrieving game birds, but are also capable of being disruptive or dangerous; therefore, the rules make it an offense for any person to possess dogs in camp that are not confined or leashed, or to allow vicious or dangerous dogs to create a disturbance or hazard.

New §57.1012(e) sets forth provisions relating to arms and firearms. Because CMAs are intended to provide recreational opportunity to many different types of use and the areas will not be managed by on-site staff, the department has determined that it is prudent to stipulate that the display and discharge of arms and firearms be limited to the hunting and fishing activities set forth under the adopted rules and Chapter 65, Subchapter H, which govern public hunting.

New §57.1012(f) prescribes measures regarding camping. The department considers that in order to provide for equitable use by the public as well as to prevent the use of department lands as permanent or semi-permanent dwelling places, it is necessary to establish limits on camping on CMAs. Therefore, the proposed rules make it is an offense for any person to camp for more than 14 consecutive days on a CMA where overnight camping is allowed, or for more than 21 days in any 30-day period, or to establish a camp and leave it unattended for a period of longer than 24 hours.

New §57.1012(g) sets forth restrictions on fires. The department considers that because CMAs are intended primarily to preserve coastal ecosystem habitats it is axiomatic that the collection or use of living vegetation as fuel is injurious to native vegetative communities and the ecological food webs that depend upon them and therefore should be prohibited. Similarly, unattended fires pose a danger to other CMA users. Therefore, the rules allow fires to be built, using either firewood brought by users or deadwood or driftwood acquired on-site; however, it is an offense for any person to fell or cut any living vegetation for firewood or leave a fire unattended.

New §57.1012(h) prohibits the use of fireworks on CMAs. As previously mentioned in this preamble, the department intends for CMAs to provide recreational benefits for many different types of users, primarily in the form of enjoyment of open space and natural resources. The department has determined that fireworks are not consistent with any of these uses, or with the overarching management objectives of CMAs.

New §57.1012(i) provides for angling opportunity to be allowed under the provisions of Chapter 65, Subchapter N, which is the Statewide Recreational and Commercial Fishing Proclamation. The department believes that CMAs can provide significant high-quality angling opportunity to the public; therefore, the rules allow the angling opportunity provided for each location by the general fishing regulations of the department.

New §57.1012(j) proscribes graffiti and vandalism, making it an offense for any person to write on, scratch, or otherwise deface natural features, signs, buildings, or other structures. Considering that the department’s mission is to preserve and conserve the natural and cultural resources under its care, as well as to provide pleasant surroundings for the experience of CMA users, graffiti and vandalism should be prohibited on CMAs.

New §57.1012(k) establishes provisions governing hunting on CMAs. CMAs will not have on-site permanent staff to conduct hunts and are intended for multiple uses, including hunting, to the extent consistent with public safety. Accordingly, the department has determined that the hunting of migratory game birds (doves, ducks, geese, etc.) under the regulations of the department’s public hunting program (which require the purchase of an Annual Public Permit) can be provided. The department considers, however, that the long ranges of centerfire and rimfire firearms present a safety hazard and that allowing the unsupervised use of such firearms presents a danger to other users. Under both federal and state law, the only lawful means of hunting migratory game birds is by shotgun, which are firearms of limited range.

New §57.1012(l) prescribes provisions governing the use of motor vehicles and off-road vehicles. Since it is the department’s duty and intent to manage CMAs for conservation and responsible public recreational opportunity consistent with that goal, it is necessary to regulate the use of motor vehicles and off-road vehicles. Coastal habitats are remarkably delicate and subject to disruption by motor traffic. The department therefore proposes to make it an offense for any person to operate a motor vehicle anywhere other than designated roads, parking areas, or other areas designated as open for motor vehicle use, or to operate an off-road vehicle anywhere other than in an area designated as open for off-road vehicle use.

New §57.1012(m) prohibits the use of airboats on CMAs. Airboats are capable of disturbing sensitive marsh vegetation and wetlands communities; therefore, the department has determined that the recreational use of airboats on CMAs is antithetical to the purpose of CMAs.

New §57.1012(n) establishes provisions concerning visitor impacts to natural and cultural resources. The rule make it an offense for any person to willfully mutilate, injure, destroy, pick, cut, remove, or introduce any plant life except by permit issued by the director; to intentionally or negligently take, remove, destroy, deface, tamper with, or disturb any rock, earth, soil, gem, mineral, fossil, or other geological deposit except by permit issued by the director; to take, remove, destroy, deface, tamper with, disturb, or otherwise adversely impact any prehistoric or historic resource, including but not limited to, buildings, structures, cultural features, rock art, or artifacts, except by written order of the director; or to harm, harass, disturb, trap, confine, catch, possess, remove, release, introduce, or feed any wildlife, or portions of wildlife, except as otherwise provided or authorized. The rule is necessary, generally, to prevent injury or harm to natural and cultural resources that it is the department’s duty and goal to protect and conserve for the enjoyment of all visitors. The rule also contains an exception for incidental disturbance occurring as part of normal visitation activities.

New §57.1012(o) establishes standards for treatment of wastewater, sewage, and garbage, making it an offense to deposit waste water, sewage, or effluent from sinks, toilets, or other plumbing fixtures directly on the ground or into the water; or to dispose of garbage except in a receptacle provided for that use or as may otherwise be specifically authorized by department personnel. The provision is necessary to ensure that environmental degradation does not occur as a result of public visitation at CMAs.

New §57.1015, concerning Penalties, references the statutory penalties for violations of regulations adopted under Parks and Wildlife Code, Chapter 81, which is intended for convenience.

Summary of Public Comment.

The department received two comments opposing adoption of the proposed rules. Both commenters provided a specific reason or rationale for opposing adoption.

One commenter opposed adoption and stated that airboat use on CMAs should not be prohibited because some physically impaired visitors need airboats. The department, while sympathetic to the needs of the mobility impaired, disagrees and responds that negative environmental impacts of airboats on sensitive wetland ecosystems is undesirable and contrary to the purpose for which CMAs have been acquired. No changes were made as a result of the comment.

One commenter opposed adoption and stated dissatisfaction with the department’s website, which isn’t germane to the rulemaking. No changes were made as a result of the comment.

The department received nine comments supporting adoption of the proposed rules.

No groups or associations commented on the proposed rules.

Statutory Authority.

The new rules are adopted under the authority of Parks and Wildlife Code, §81.006, which prohibits the take, attempted take, or possession of any wildlife or fish from a wildlife management area except in the manner and during the times permitted by the department under Chapter 81, Subchapter E, and under 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, authorizes the executive director to regulate numbers, means, methods, and conditions for taking wildlife resources on wildlife management areas and public hunting lands, and authorizes the commission to adopt rules governing recreational activities in wildlife management areas.

§57.1010.Applicability.

(a) This subchapter applies to all activities subject to department regulation on any tract of land designated by the department as a coastal management area (CMA), regardless of the presence or absence of boundary markers.

(b) The following lands are CMAs:

(1) Follets Island CMA in Brazoria County; and

(2) Matagorda Peninsula CMA in Matagorda County.

(c) The CMAs designated in this section are open to hunting, fishing, and other recreational use, subject to the provisions of this subchapter and any applicable provisions of the Parks and Wildlife Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 27, 2017.

TRD-201704813

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Effective date: December 17, 2017

Proposal publication date: September 29, 2017

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