CHAPTER 65. WILDLIFE

SUBCHAPTER O. COMMERCIAL NONGAME PERMITS

The Texas Parks and Wildlife Commission in a duly noticed meeting on August 23, 2018, adopted amendments to §65.328 and §65.331, concerning Commercial Nongame Permits, without changes to the proposed text as published in the April 20, 2018, issue of the Texas Register (43 TexReg 2373). The proposed amendments would, collectively, prohibit the commercial take of four species of freshwater turtles in Texas.

The department received a petition for rulemaking in 2017 requesting the prohibition of unlimited commercial collection of four species of freshwater turtles (common snapper, red-eared slider, smooth softshell, and spiny softshell). Department staff reviewed the petitioners' evidence and arguments as well as department data and scientific literature and have concluded that there is sufficient scientific justification to prohibit the commercial collection of all four species.

Under Parks and Wildlife Code, Chapter 67, "nongame wildlife" is defined as "those species of vertebrate and invertebrate wildlife indigenous to Texas that are not classified as game animals, game birds, game fish, fur-bearing animals, endangered species, alligators, marine penaeid shrimp, or oysters." Chapter 67 requires the commission to "establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species," and authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species, and to charge a fee for such permits. In 1999, the Parks and Wildlife Commission adopted the first regulations expressly intended to manage nongame wildlife in the state. In 2007, the commission, based on data reported to and information collected by the department, determined that additional protective measures were needed for nongame species and adopted rules that, among other things, prohibited the commercial take of all species of turtles in public waters and on public lands, and all species of turtles other than common snapping turtle, the red-eared slider, smooth softshell, and spiny softshell on private lands and in private waters.

Nongame species comprise over 90 percent of the wildlife species that occur in Texas. The department conducts ongoing research on many nongame species, and monitors research conducted by others. Among the nongame species of greatest concern are Chelonian species (turtles). Because of factors such as delayed sexual maturity, long lifespans, and low reproductive and survival rates, turtles are highly sensitive to population alterations, especially in older age classes. Long lifespans, long generation times, and relatively slow growth may give the appearance that populations are stable, even after recruitment has ceased or populations reach levels below which recovery is possible. Impacts to turtle populations, such as the loss of important nesting areas or unsustainable mortality of adults, may remain undetectable until populations reach critical levels or become extirpated. Known limiting factors such as water pollution, road mortality, and habitat loss are important components in turtle declines, but commercial collecting efforts in the wild intensify the impact of those threats by removing large numbers of adults and older juveniles from wild populations. The collection for food markets has devastated turtle populations in Asia, historically the destination of the bulk of turtles commercially collected in Texas. Analysis of turtle population demographics consistently showed skewing to the adult age categories - the mature specimens most sought by commercial collectors for use as food product. This characteristic reflects the natural history of turtle species and their strong dependency on adult survivors to offset high mortality rates in eggs and juvenile categories. This characteristic alone makes it unlikely that populations can remain stable when high numbers of adults and older juveniles are steadily removed from a population.

Analysis of collection and sales data from commercial collectors indicates little to no recent trade in common snapping turtles, spiny softshell turtle, or smooth softshell turtles, which suggests that local populations of those species are no longer abundant enough to support market exploitation or have been exploited to the point that populations have become unstable. An additional concern is similarity of appearance. Failure to discriminate among similar species is a substantial threat to populations of rare freshwater turtle species. Similarity of appearance between the common snapping turtle and alligator snapping turtle and among the red-eared slider and western chicken turtle, Big Bend slider, Rio Grande cooter, and Cagle's map turtle is a serious concern in the face of mounting threats to these species. The alligator snapping turtle (Macrochelys temminckii), western chicken turtle (Deirochelys reticularia miaria), and Rio Grande cooter (Pseudemys gorzugi) have been petitioned for listing by the federal government under the Endangered Species Act, the Big Bend slider (Trachemys gaigeae) is a Species of Greatest Conservation Need (endemic to the Rio Grande River watershed) and the Cagle's map turtle (Graptemys caglei) is the rarest map turtle species in the world, with a range that is restricted to a single stretch of the Guadalupe River. Accidental removal of even a small number of adults from rare turtle populations could have profound implications for long-term survival and persistence. Therefore, by prohibiting the commercial collection of all turtle species, the threat of negative population impacts as a result of similarity of appearance is mitigated.

Literature Reviewed.

In developing the rules as adopted, the department reviewed and considered the following scientific publications:

Bailey, K. A., and C. Guyer. 1998. Demography and population status of the flattened musk turtle, Sternothrus depressus, in the Black Warrior river Basin of Alabama. Chelonian Conservation and Biology 3(1): 77-83.

Bailey. L., M.R.J. Forstner, J.R. Dixon, and R. Hudson. 2014. Chapter 19. Contemporary Status of Pseudemys gorzugi (The Rio Grande river cooter) in Texas: Phylogenetic, Ecological, and Conservation considerations. pp. 367-392. Cathryn A. Hoyt and John Karges (editors) 2014.

Proceedings of the Sixth Symposium on the Natural Resources of the Chihuahuan Desert Region

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Bailey, Lindley A., et al. 2008. Minimal Genetic Structure in the Rio Grande Cooter (Pseudemys gorzugi). The Southwestern Naturalist, vol. 53, no. 3, 2008, pp. 406-411. JSTOR, JSTOR, www.jstor.org/stable/20424947.

Behler, J. L. 1997. Troubled times for turtles. Proceedings: conservation, restoration, and management of tortoises and turtles - an international conference. 7 p. (Available at: http://nytts.org/proceedings/proceed.htm).

Brooks, R. J., G. P. Brown, and D. A. Galbraith. 1991. Effects of a sudden increase in natural mortality of adults on a population of the common snapping turtle (Chelydra serpentine ). Canadian Journal of Zoology 69: 1314-1320.

Brown, D.J., A.O. Schultz, J.R. Dixon, B.E. Dickerson, and M.R.J. Forstner. 2012. Decline of Red- eared sliders (Trachemys scripta elegans) and Texas Spiny Softshells (Apalone spinifera emoryi) in the Lower Rio Grande Valley of Texas. Chelonian Conservation and Biology 11(1):138-143.

Brown, D.J., B. DeVolld, and M.R.J. Forstner. 2011. Escapes from hoop nets by red-eared sliders (Trachemys scripta elegans). Southwestern Naturalist 56(1):124-127.

Brown, D., I. Mali, and M.R.J. Forstner. 2011. No difference in short-term temporal distribution of trapping effort on hoop net capture efficiency for freshwater turtles. Southeastern Naturalist I0(2):245-250.

Brown. D.J., V.R. Farallo, J.R. Dixon, J.T. Baccus, T.R. Simpson, M.R.J. Forstner. 2011. Freshwater turtle conservation in Texas: harvest effects and efficacy of the current management regime. JWM 75(3):486-494.

Bohannon, A.M.A, A. Maclaren, and M.R.J. Forstner. 2018. Geographic Distribution. Caldwell County, Texas. Pseudemys texana. Herpetological Review 49(1):72.

Brush, J., M. Oyervides, and M.R.J. Forstner. 2017. Geographic Distribution. Starr County, Texas. Pseudemys gorzugi. Herpetological Review 48(1):124.

Burke, V. J., J. L. Greene, and J. W. Gibbons. 1995. The effect of sample size and study duration on metapopulation estimates for slider turtles (Trachemys scripta). Herpetologica 51: 451-456. Ceballos, C. P. 2001. Native and exotic turtle trade in Texas. Thesis, Texas A&M University, College Station, Texas, USA.

Ceballos, C. P., L. A. Fitzgerald. 2004. The trade in native and exotic turtles in Texas. The Wildlife Society Bulletin 32(3):881-891.

Congdon, J. D., A. E. Dunham, and R. C. van Loben Sels. 1993. Delayed sexual maturity and demographics of Blanding's turtles (Emydoidea blandingii): Implications for conservation and management of long-lived organisms. Conservation Biology 7: 826-833.

Congdon, J. D., A. E. Dunham, and R. C. van Loben Sels. 1994. Demographics of common snapping turtles (Chelydra serpentine): Implications for conservation and management of long-lived organisms. American Zoologist 34: 397-408.

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Curtis, J., I. Mali, and M.R.J. Forstner. 2017. Pseudemys gorzugi (Rio Grande Cooter). Hatchling movement. Herpetological Review 48(2):426.

Dickerson, B. E., A.D. Schultz, D.J. Brown, B. DeVolld, M.R.J. Forstner, and J. R. Dixon. 2009. Geographic Distribution (Hidalgo County). Chelydra serpentina serpentina. Herpetological Review 40(4):448.

Dixon, J. R. 2000. Amphibians and reptiles of Texas. Texas A&M University Press, second edition, College Station, Texas, USA.

Dodd, C. K., Jr. 1990. Effects of habitat fragmentation on stream-dwelling species, the flattened musk turtle Sternotherus depressus. Biological Conservation 54: 33-45.

Doroff, A. M., and L. B. Keith. 1990. Demography and ecology of an ornate box turtle (Terrapene ornate) population in south-central Wisconsin. Copeia 1990: 387-399.

Fitzgerald, L.A., C.W. Painter, A. Reuter, and C. Hoover. 2004. Harvest and trade in reptiles of the Chihuahuan Desert Ecoregion. TRAFFIC North America, World Wildlife Fund. (Peer-reviewed).

Foley, S. Sirsi, and M.R.J. Forstner. 2017. Updating methods of satellite transmitter attachment towards long-term monitoring of the Rio Grande cooter (Pseudemys gorzugi). Herpetological Review 48( 1):48-52.

Forstner, M.R.J., J.R. Dixon, T.M. Guerra, J.M. Winters, J.N. Stuart, and S.K. Davis. 2014. Chapter 20. Status of U.S. populations of the Big Bend slider (Trachemys gaigeae). Pp. 335-367. Cathryn A. Hoyt and John Karges (editors) 2014. Proceedings of the Sixth Symposium on the Natural Resources of the Chihuahuan Desert Region October 14-17,2004.

Franke, J., and T. M. Telecky. 2001. Reptiles as pets: an examination of the trade in live reptiles in the United States. The Humane Society of the United States. Washington, D.C., USA.

Garber, S. D., and J. Burger. 1995. A 20-yr study documenting the relationship between turtle decline and human recreation. Ecological Applications 5: 1151-1162.

Gibbons, J. W. 1990. Turtle studies at SREL : A research perspective. Pages 19-44 in J. W. Gibbons (ed.). Life history and ecology of the slider turtle. Smithsonian Institution Press, Washington D.C.

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Gibbons, J. W., J. L. Greene, and J. D. Congdon. 1983. Drought-related responses of aquatic turtle populations. Journal of Herpetology 17: 242-246.

Gibbons, J.W., D.E. Scott, T.J. Ryan, K.A. Buhlmann, T.D. Tuberville, B.S. Metts, J.L. Greene, T. Mills, Y. Leiden, S. Poppy, and C.T. Winne. 2000. The global decline of reptiles, Déjà Vu amphibians. Bioscience 50:563-666.

Graham, T. E., 1995. Habitat use and population parameters of the spotted turtle, Clemmys guttata, a species of special concern in Massachusetts. Chelonian Conservation and Biology 1: 207-214.

Hall, C. D., and F. J. Cuthbert. 2000. Impact of controlled wetland drawdown on Blanding's turtles in Minnesota. Chelonian Conservation and Biology 3(4): 643-649.

Harrel, J. B., C. M. Allen, and S. J. Herbert. 1996. Movements and habitat use of subadult alligator snapping turtles (Macroclemys teminickii) in Louisiana. American Midland Naturalist 135: 60-67.

Heppell SS, Caswell H, and Crowder LB 2000b Life histories and elasticity patterns: Perturbation analysis for species with minimal demographic data. Ecology 81:654-665

Heppell, SS, Crouse DT, and Crowder LB 1996 A model evaluation of headstarting as a management tool for long-lived turtles. Ecological Applications 6:556-565

Heppell SS, Crouse DT, and Crowder LB 2000a Using Matrix Models to Focus Research and Management Efforts in Conservation. In: Ferson S, Burgman M (eds.), Quantitative Methods for Conservation Biology pp 148 - 168

Heppell, S.S. 1998. Application of life history theory and population model analysis to turtle conservation. Copeia 1998(2): 367-375.

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Jester S. L. 1992. A national assessment of reptile and amphibian regulation and case study of nongame trade in Texas. Thesis. Texas A&M University, College Station, Texas, USA.

King, F. W., and R. L. Burke (Editors). 1989. Crocodilian, tuatara, and turtle species of the world: a taxonomic and geographic reference. Association of Systematics Collections, Washington, D.C., USA.

Klemens, M. W., and D. Moll. 1995. An assessment of the effects of commercial exploitation on the pancake tortoise, Malacochersus tornieri, in Tanzania. Chelonian Conservation and Biology 1: 197-206.

Lehn, C., I. Das, M.R.J. Forstner, and R. Brown. 2007. Responsible vouchering in turtle research: an introduction and recommendations. Chelonian Conservation and Biology: Chelonian Research Monographs 4: 146-155.

Lindsay. M.K., Y. X. Zhang, M. R. J. Forstner, and D. Hahn. 2013. Effects of the freshwater turtle (Trachemys scripta elegans) on ecosystem function: An approach in experimental ponds. Amphibia- Reptilia 34:75-84.

Lowe, H. 2009. The globalization of the turtle trade. Turtle Survival Alliance August: 47-52.

Maclaren, A., A.M.A. Bohannon, M.L. Kiehne, and M.R.J. Forstner. 2017. Geographic Distribution. Ward County, Texas. Apalone spinifera. Herpetological Review 48(4):809.

Maclaren, A., S. Sirsi, and M.R.J. Forstner. 2017. Geographic Distribution. Andrews County, Texas. Trachemys scripta. Herpetological Review 48(4):810.

Maclaren, A.R., S. Sirsi, D.H. Foley III, and M. R. J. Forstner. 2017. Natural History Note. Pseudemys gorzugi, Long distance dispersal. Herpetological Review 48(1):180-181.

Mali, I., A. Duarte, and M.R.J. Forstner. 2018. Status of the Rio Grande Cooter along Black River, New Mexico with implications for monitoring efforts. PeerJ 6:e4677; DOI 10.7717/peerj.4677

Mali, I., A. Villamizar-Gomez, T. M. Guerra, M. W. Vandewege, and M.RJ. Forstner. 2015. Population genetics of Texas Spiny Softshell turtles (Apalone spinifera emoryi) under various anthropogenic pressures in two distinct regions of their range in Texas. Chelonian Conservation and Biology 14(2):148-156.

Mali. I., B.E. Dickerson, D. Brown, J. R. Dixon and M. R.J. Forstner. 2013. Road density not a major driver of Red-eared sliders (Trachemys scripta elegans) population demographics in the lower Rio Grande Valley of Texas. Herpetological Conservation and Biology 8( I):131- 140.

Mali, I., D. Haynes, and M. R.J. Forstner. 2014. Effects of bait type, bait age, and trap hours on capture success of freshwater turtles. Southeastern Naturalist 13(3); 619-625.

Mali, I., D. J. Brown, J.R. Ferrato, and M. R. J. Forstner. 2014. Sampling freshwater turtle populations using hoop nets: testing potential biases. Wildlife Society Bulletin DOI: 10.1002/wsb.427.

Mali. I., D.J. Brown, M.C. Jones, and M.R.J. Forstner. 2013. Hoop net escapes and influence of traps containing turtles on Texas Spiny Softshell (Apalone spinifera emoryi) captures. Herpetological Review 44( l ):44-46.

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The department received 24 comments opposing adoption of the rules as proposed. Of the 24 comments, ten provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow.

One commenter opposed adoption and stated that sustainable harvest should be allowed, that the scientific publications cited by the department have nothing to do with Texas turtles and reflect a skewed and biased agenda to infringe on the private sector, and that the rules prevent the sale of captive-bred turtles. The department disagrees with the commenter and responds, respectively, that the overwhelming preponderance of empirical data and scientific research indicate that the commercial exploitation of turtles places populations at risk of extirpation wherever such exploitation occurs, and that there is no scientific evidence to suggest that turtle populations in Texas are uniquely not susceptible to such pressures; that the impetus for the rules is not a desire to infringe on the private sector, but to conserve Texas turtle populations; and that the rules do not prohibit the captive breeding of turtles, only the collection of native turtles from the wild for commercial purposes. No changes were made as a result of the comment.

One commenter opposed adoption and stated that there should be no laws governing the collection of non-endangered species on private property. The department disagrees with the comment and responds that indigenous nongame wildlife are the property of the people of the state and the department not only has a statutory duty to protect and conserve such wildlife, but the statutory authority to do so when necessary. No changes were made as a result of the comment.

One commenter opposed adoption and stated that because the department determined that there has been little to no recent trade in the affected turtle species there is therefore no need for the regulations, and that private property should be respected. The department disagrees with the comment and responds that the decline in reported trade in the affected species of turtles indicates that those species are becoming less numerous and less easily collected. The department also notes that not all persons who collect and sell turtles comply with applicable licensing and reporting requirements, indicating that the problem could actually be worse. Finally, the department responds that the rules as adopted do not regulate the use of private property, but activities involving a public resource. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules as proposed would destroy turtle aquaculture and cause illegal collection from the wild to satisfy commercial demand. The commenter also stated that the department should survey turtle populations and establish bag limits for turtles instead of prohibiting collection. The department disagrees with the comment and responds that the rules do not prohibit turtle aquaculture and the overwhelming scientific evidence that commercial exploitation of wild turtle populations is not sustainable obviates the need for granular population data to support a prohibition on commercial collection. No changes were made as a result of the comment.

One commenter opposed adoption and stated that turtles are abundant in Texas, the rules would prohibit turtle farming, prevent landowners from managing turtle populations, prevent children from obtaining pet turtles, and harm economic opportunity for rural communities. The commenter also stated that there are no studies showing depletion of turtle populations in the wild or supporting prohibition of collection from the wild. The department disagrees with the comment and responds that the rules do not prohibit turtle farming, do not affect landowners seeking to manage turtle populations, do not prevent children from obtaining turtles from the wild, and do not positively or negatively affect any rural community. The department further responds that the department has conducted an intensive review of available scientific publications and data and has determined that the demonstrated negative population impacts resulting from commercial collection of turtles from the wild justify a prohibition on the commercial collection of turtles from the wild, and that with the possible exception of the red-eared slider, turtle populations in Texas are not abundant across the state, and many if not most species are demonstrably imperiled. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the department should not prohibit the collection and captive breeding of turtles by hobbyists. The department agrees with the comment and responds that the rules do not prohibit anyone from capturing and breeding turtles, just from engaging in commercial activities with wild-caught turtles. No changes were made as a result of the comment.

One commenter opposed adoption and stated that there should be a daily bag limit for turtles. The department disagrees with the comment and responds that because Texas is a very large state with a diverse range of habitats and populations, the survey effort needed to establish sustainable collection parameters for every lake, stream, stream segment, marsh, and wetland would be problematic, and that the most efficacious management option is a prohibition on commercial collection from the wild. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules should contain provisions that require the department to monitor turtle populations in order to determine if commercial harvest is feasible in the future. The department agrees with the comment and responds that under Parks and Wildlife Code, Chapter 67, the department is required to conduct ongoing scientific investigations to determine appropriate management information, which the department intends to do. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules are not based on good science. The department disagrees with the comment and responds that the overwhelming consensus of available scientific opinion is that commercial collection of turtles from the wild is ultimately unsustainable. No changes were made as a result of the comment.

One commenter opposed adoption and stated that basing population assumptions on commercial nongame dealer reports is a poor analogy; that the department's data is old and may not be relevant today; that the prohibition of breeding and selling would negatively affect the ability of private collections to act as refugia; that the rules are a de facto threat to hunting culture and create a precedent to outlaw hunting; that prohibition of commercial collection will result in a black market; that the rules are a money grab by the department; and that commercial breeding is a viable method for conserving wild populations. The department disagrees with the commenter and responds, respectively, that commercial nongame dealer data is one but not the only dataset used by the department to determine management strategies; that scientific literature is always useful and the department utilizes the best available scientific data to inform management decisions; that the rules do not prohibit the collection or captive breeding of turtles for non-commercial purposes such as refugia; that the rules do not and cannot be construed to impinge upon or prohibit recreational hunting because they affect only commercial collection; that the rules have no positive fiscal implications for the department nor were they intended to generate revenue; that the department cannot control those unscrupulous persons who choose to engage in unlawful collection and sale of turtles, but will enforce the law; and that the rules do not prohibit commercial breeding, only the commercial collection from the wild. No changes were made as a result of the comment.

The department received 1,184 comments supporting adoption of the rules as proposed.

The amendments are adopted under the authority of Parks and Wildlife Code, §67.004, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

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 October 15, 2018.

TRD-201804479

Robert D. Sweeney, Jr.

General Counsel

Texas Parks and Wildlife Department

Effective date: November 4, 2018

Proposal publication date: April 20, 2018

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