Texas Parks and Wildlife Commission
Conservation Committee
Jan. 22, 2003
Commission Hearing RoomTexas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744
BE IT REMEMBERED, that heretofore on the 22nd day of
January, 2003, there came on to be heard matters under
the regulatory authority of the Parks and Wildlife
Commission of Texas, in the Commission Executive Board
Room of the Texas Parks and Wildlife Headquarters
Complex, beginning at 11:20 a.m. to wit:
APPEARANCES:
THE PARKS AND WILDLIFE COMMISSION:
CONSERVATION COMMITTEE:
Katharine Armstrong, Austin, Texas, Commission
Chair
Joseph B.C. Fitzsimons, San Antonio, Texas
Ernest Angelo, Jr., Midland, Texas, Committee
Chair
John Avila, Jr., Fort Worth, Texas
Alvin L. Henry, Houston, Texas
Philip Montgomery, Dallas, Texas
Donato D. Ramos, Laredo, Texas
Kelly W. Rising, M.D., Beaumont, Texas
Mark W. Watson, Jr., San Antonio, Texas
THE TEXAS PARKS AND WILDLIFE DEPARTMENT:
Robert L. Cook, Executive Director, and other personnel
of the Parks and Wildlife Department
CHAIRMAN ARMSTRONG: First item on the
Conservation Committee's agenda is approval of the
committee minutes from the previous meeting. Do we have
any changes or corrections?
(No response.)
CHAIRMAN ARMSTRONG: If not, do I have a motion
to approve?
COMMISSIONER FITZSIMONS: So moved.
CHAIRMAN ARMSTRONG: And a second?
COMMISSIONER HENRY: Second.
CHAIRMAN ARMSTRONG: All in favor?
(A chorus of ayes.)
CHAIRMAN ARMSTRONG: All right. Bob, could you
read the chairman's charges?
MR. COOK: Today, we've got a couple of
briefings that we'll update you on -- some of the many
water resource issues that we're involved in. First,
we'll hear from Dr. McKinney concerning our regional
habitat conservation planning and the Edwards Aquifer
Association's use of this planning process. Then, we'll
have an update from Doc and Kevin Mayes concerning the
status of our cooperative agreement on instream flow
studies.
MR. McCARTY: Before we get started we're out
of order --
MR. COOK: I may have got you out of order.
DR. McKINNEY: Yes, you have. Do you want us
to --
MR. COOK: Let's let Walt do his CCC thing.
DR. McKINNEY: This is the Conservation
Committee. Can you tell?
MR. COOK: We're ready to go.
MR. DABNEY: I don't think my pictures would
have fit his presentation.
Good morning, Commissioner. My name is Walt
Dabney, State Park Director. And I'm here to brief you
quickly on the 70th anniversary of the Civilian
Conservation Corps, which will occur this March. It will
be 70 years since that program was established by
President Roosevelt.
The CCC worked extensively throughout Texas in
many of the parks that you have visited and enjoyed. The
work was not always done with heavy machinery and so
forth. But that wasn't necessarily the intent of it.
Many of the folks that came to work were farm boys and
folks that just could not find a job anywhere, doing
anything. And the program was set up to try to help get
the nation out of very difficult times.
These folks that came into these programs
learned all kinds of new skills, from furniture making to
stone masonry, and all kinds of other things. They built
beautiful facilities across not only state parks, but
national parks across the nation. And many of these
folks later went from the CCC into soldier positions in
the Second World War.
Commissioner Fitzsimons will point out to you,
on this one, this is actually one of the rooms at Indian
Lodge that we just got through renovating, which ties
also back into this revenue picture that Suzy talked
about earlier. We had half our rooms at Indian Lodge
offline. This is one of the newer rooms, not CCC. But
it is beautifully restored now. And we see these as
going to be ways to actually increase our revenue.
Anyway, the CCC, in many of our different
locations -- these folks learned everything from, as I
said, stone masonry to -- if you look in the middle of
that fireplace, that was actually a person that learned
sculpting on the job at Bastrop. The refectory that many
of these buildings -- in fact all of them -- are still
used by visitors today, with some of Prop 8 money and the
previous bond money has gone back into these historic
sites to help renovate them and stabilize them.
Approximately 30 plus state parks benefited
from the CCC and, in fact, were built by the CCC during
the '30s. What's interesting to note is, by law, these
folks made $30 a month. And they got to keep $5 of it
and $25 of it was sent home to help keep the families
afloat. And they were thrilled to have the job.
Today, we still benefit from what these folks
did. The Cooper family at Abilene comes every year,
using the CCC facilities. And their extended family
loves coming and staying with us.
Tomorrow, what I'm going to be doing is doing a
quick presentation on the overall CCC. And then we plan
to have two veteran CCC folks here, to spend just a
couple of minutes apiece with you, to share their
experiences. And they're some neat men. And they'll
give you a little background on what was going on in the
country them, and what this meant to them, and some of
the projects they worked on, and that kind of thing. I
think you'll really enjoy it.
Then we will have an actual resolution that we
would ask you to pass. And a copy of that is on page 148
in your book. It is honoring the CCC for what they did
in Texas and across the nation. Another one of these
resolutions will be given to the legislature. And,
hopefully, that will be passed, recognizing the CCC,
again, for what they did.
Seventieth anniversary -- and we'll have two of
those folks here tomorrow. I'll be glad to answer any
questions.
MR. COOK: Any questions or comments.
COMMISSIONER MONTGOMERY: You might note -- as
I understand it --
MR. COOK: Commissioner Montgomery?
COMMISSIONER MONTGOMERY: My memory is faulty.
Because I remember President Johnson was heavily involved
in the staffing and management early in his career. It
might be worth noting. And I don't know whether
activities for that might involve the Johnson family.
They might have an interest in it.
MR. DABNEY: We're going to have a nice
function out at Bastrop, with a lot of the -- it will be
a reunion. I think it's in -- it's in March, the birth
date of the establishment of the CCC. And we'll get the
information to you so that if you have an interest, and
the time to come over, you'd really enjoy meeting some of
these folks.
Thank you very much.
MR. COOK: Thanks, Walt.
CHAIRMAN ARMSTRONG: This will be moved to the
agenda tomorrow?
MR. COOK: It's just a briefing, yes.
CHAIRMAN ARMSTRONG: Okay.
MR. COOK: You have a briefing tomorrow.
CHAIRMAN ARMSTRONG: Item number three,
regional habitat conservation plan, on Edwards Aquifer,
Larry McKinney.
DR. McKINNEY: Madame Chairman, members, Larry
McKinney, Director of Park Resources, Parks and Wildlife.
It's going to take a couple of us to get through this.
But we'll do it briefly for you -- to give an
introduction to a recent habitat conservation plan
proposal by the Edwards Aquifer Authority, and why we're
involved in that.
I will digress just very briefly to give you
some history, I think, that's relevant to what we're
talking about and why we are involved. 1992, the City of
Austin went together with a number of other local
government units to develop, and adopt, and fund a
habitat conservation plan for the Endangered Species Act
to meet some requirements for species here in the Austin
area.
During that whole process, there was a number
of landowner concerns about that process, developing and
implementing this regional plan. And it prompted some
legislative action to provide a safety valve, if you
will, to address those concerns in any future plan. And
you all, this Commission, you are that safety valve.
And that's what we're going to try to brief you
on today. Now, I've put -- I'm going to cover a couple
of things as to why we're involved in this. But,
certainly, Ann Bright will spend more time on it at the
conclusion of this presentation. But there's a couple
points I wanted to make.
And it points out the fact that individuals --
they're eligible individuals of a citizen advisory
committee, part of this plan -- can bring grievances
before this Commission in regards to those regional
plans. The key operative for us is within this state law
there are a lot of "shalls" for this Commission. There
are a lot of things that you shall do.
The Commission shall review grievances. And if
the Commission finds the grievances have merit, they hold
public hearings. And you shall vote on those grievances.
And then the Commission shall instruct plan participants
to take certain actions. So there's some important areas
in here that you'll have to review and take action on.
And Ann will cover those with you.
What I want to try to do is provide you a
little bit of a background. Because the first regional
habitat conversation plan subject to this law from 1992
will likely come before you in the next year or so.
And this is the Edwards Aquifer Regional
Habitat Plan. The plan itself encompasses, for planning
purposes, all those counties in white. So you can see,
it cuts across a pretty good swath of lower Central
Texas. The actual permit itself, should it be granted,
will be, in effect, in those areas outlined in red, which
is the area of the Edwards Authority itself.
A section of our code requires several actions
on our part, which we have followed up on. It directs
the formation of a biological advisory team. And Dr.
David Bowles, who is here to my left and will talk to you
shortly, has chaired that group. And Bob Sweeney has
given them good legal advise.
And I want to make a point here with Dr. Bowles
and Bob Sweeney both, but particularly Dr. Bowles, this
has been our first shot at having to do this. And
thanks, really, to Dr. Bowles, and Bob Sweeney, I think
the process of working through that advisory team has
been very productive. They've taken great steps to keep
it on a real clear view-type level, because of your
independent scientists that are working on this type of
thing. I think the results have been useful and helpful
to the Edwards Aquifer Authority and others.
I would point out that during the middle of all
this process, Dr. Bowles was called up and served his
time in the military a little bit, for a year. And we
finally got him back. We're happy. So in all this, he's
been doing all this work. And I really appreciate what
he has done.
Also, our code directs the establishment of a
citizens advisory committee, of which 30 percent of the
members must be agricultural landowners and one member
from Parks and Wildlife. And John Herron has filled that
role. And, again, John has done a really good job in
moving that process forward, and meeting our obligations
under requirements of this piece of legislation.
Now, what prompted this is, in 1993, the Texas
Legislature passed a bill, 1477, that really established
the Edwards Aquifer Authority, as you can see on the
chart. It gave the Authority a number of really
difficult tasks to follow through with. And the one that
we're going to be focused on is this -- is that they were
directed to address the questions of preserving
endangered species habitat, as part of their charge. And
that's what they're trying to do in these regional plans.
First of all, just some background. The
Edwards Aquifer itself, of course, is very extensive
across the state. What we're talking about is just the
southern portion -- not even the portion dealing with the
Austin area, but just San Antonio. That southern portion
of the aquifer is what's in play here.
To give you a very brief idea of what it looks
like, here is a diagram of the Edwards Aquifer, with
recharge and the artesian zone, where water comes up just
briefly. The general flow of the water is, obviously,
from west to east and downhill, as you expect. And where
we see that come out, where we see the manifestation of
the aquifer, is in Comal and San Marcos Springs, where
the water comes out of this southern unit.
If you look at it from a cross-sectional
standpoint, you see that, basically, the city of San
Antonio floats on top of the aquifer. The aquifer begins
far out in West Texas, in Kinney County. And water moves
through there, again, and comes out in those springs.
And the impact of pumpage out of the Edwards Aquifer --
primarily for the city of San Antonio, but also for
agricultural and other uses -- the primary impact that we
see, and that's part of this regional habitat plan, is in
the spring flows at Comal and San Marcos.
So, basically, the regional habitat plan --
it's a framework for the Authority to apply to the U.S.
Fish and Wildlife Services, under the auspices of the
Endangered Species Act, for a [inaudible] permit. That
would allow for incidental take of several endangered
species from that southern portion. And it's a long
list. And it's species that live in the aquifer, species
that live in the springs that come out and the rivers
that those springs feed.
So this is a very, very complex undertaking.
In fact, as we're trying to put this together, this is
probably the most complex biological issue I think I've
ever looked at in the whole time I've been here. And in
a moment, I'm going to try to give you just a flavor of
why that's the case. But it's a tough one.
And everything, frankly, that I can think of
that deals with water -- except perhaps in the
Panhandle -- has some play in this issue that you may
well have to take a look at in this process. And by that
I mean, there are endangered species associated with
every aspect of it.
The Edwards still remains, from all practical
purposes, the sole source of water for the city of San
Antonio. All the major Hill Country rivers flow over and
recharge the aquifer. And there are direct impacts to
bays and estuaries from the decisions that are made under
this Authority.
To give more detail, all of Texas' larger
springs have their origin in the Edwards Aquifer, and
nearly all of them have some endangered species
associated with it. Under normal conditions, the aquifer
provides about 30 percent of the instream flows for the
Guadalupe River. But, most significantly, during drought
periods, of which we've had many, almost 70 percent of
the river flow in the Guadalupe comes out of those
springs. So it's very significant.
There are endangered species issues associated
with that. But, more importantly, the Guadalupe River
and its tributaries, the Blanco, San Marcos, and Comal,
have a tremendous impact on everyone downstream --
industry, agriculture, municipalities.
You can see from the diagram of the watershed
there that the decisions that are made in San Antonio in
regards to pumping out of Edwards Aquifer doesn't just
affect the city of San Antonio or endangered species.
Because of the water coming out of the springs, and how
they feed that river, it affects everything downstream.
So there's lots of people, with a lot of interest, in
what happens in San Antonio, obviously.
The Guadalupe River, of course, is a primary
source of freshwater inflows to San Antonio bay. And as
a result of our official inflow studies, we've determined
that in order to maintain the current health of that bay,
we need about 1.15 million acre-feet of water a year to
maintain the health of that system. And when you cut
that water back, even by a small amount, say 200,000 acre-
feet, you begin to have impacts on certain groups of
species, like brown shrimp and blue crabs. If you begin
to have an effect on blue crabs, that has effect, yes, on
another endangered species -- there are endangered
species throughout this -- that is whooping cranes.
This whole issue has been the basis of the San
Marcos River Foundation, or what we typically call the
SMRF Water Rights Permit -- which again has the attention
of our legislature. And the CDQ is one of the highest
priority issues around right now. And that permit itself
is, again, involved and related to whatever the Edwards
Aquifer Authority does. So you begin to get the feel
of -- just everything is linked together in a spider web
of this type of thing that we'll be dealing with.
So let's talk briefly about what are some of
the applications of this management issue and challenge
we'll have to deal with. Well, the regional habitat
plan, as presented by the Authority, has five management
alternatives. And we're not going to go through those.
But there are some common elements.
All of the alternatives that they're laying out
as a possibility for inclusion in this plan has some
pumping limit, obviously, of how much maximum per year
pumping that you can take out of the aquifer. Most
importantly, it also has a plan or an approach to deal
with drought situations -- such that if we enter a
drought at some point, there is a trigger that will
limit, or cap, or reduce, that pumping. And, of course,
each of the alternatives talk about how you mitigate for
the adverse impact on the springs, and endangered
species, and all of that.
Just to give you an idea of what we're talking
about, some pumping facts -- an idea of how pumping works
in the aquifer. Over ten years of pumping, they have
pumped some 327,000 to 494,000 acre-feet per year.
That's what their averages have been. And the median are
411-. The maximum pumping that they've recorded was
542,000 acre-feet.
Significantly to what we're talking about,
Comal Springs -- Comal Springs is the springs that we
kind of use as the bellwether; it tells us what's
happening in there before San Marcos reported -- but
we've seen the cessation of flows in Comal Springs in
1990, when the pumping rates were at 489,000 acre-feet.
But we see impacts, as we did in 1996, when the pumping
was around 400,000 acre-feet. The legislative cap on the
pumping is around 450,000 acre-feet.
And so you can see, there's some tough
decisions to be made. And I do want to make a point --
and we work closely with the Authority. And they're --
I'm trying to figure out some analogy -- I think, it's
like you're in a sinking boat, and you've appointed a
committee to bail, and they're bailing with a bucket with
a big hole in it. It's just -- they have almost an
impossible job. Because, obviously, they're not going to
be able to satisfy everyone.
But they've done a really -- they're doing a
good job of putting the information together, and laying
alternatives out on the tables. But there's going to be
some very tough decisions for them to make. And they
have -- they stepped forward, and are trying to take, you
know, all of the steps that are appropriate to lay these
kinds of things out and make those decision. And so,
we've appreciated that. And we're trying to work with
them closely to make a very -- almost impossible job --
as bearable as possible. But it's a tough one. And it
will be in the future.
And it really is going to be -- here are the
things that you all are going to hear, I think, if you're
going to lay this down. There will be discussions about
what should that pumping cap be. What should be that
maximum level, and how it affects springs?
The next issue that you'll hear about is, at
what point do you begin to put restrictions on that
pumping cap? When do we have a drought? When does it
start? What restrictions are they? How do we deal with
that plan, to begin to limit pumping when it needs to be
limited?
What is the acceptable risk -- and this is one
that the Fish and Wildlife Service will have to be
answering and opposed by -- what's the acceptable risk
for Comal Springs, or all the springs, going dry? Can we
expect those springs to go dry during the drought of
record? Is there anything we can do, or anything short
of that?
What is the level of risk that the Fish and
Wildlife Service might be willing, or think that they
can, sign off on, to issue an incidental take permit.
And, of course, if they do, what is the appropriate
mitigation options to compensate for the take that's
going to occur with those species? So it's going to be a
handful of issues.
Just recently -- I'm trying to pass this over
to Dr. Bowles -- I think he's on my left -- recently, the
BAT met, just last week actually, and gave their first
report back to Edwards Aquifer. So I asked David to give
you a quick summary of the issues that came up in that
meeting. And the biological advisory team is seven, I
think.
DR. BOWLES: Six.
DR. McKINNEY: Six. They're all -- they work
independently. They're from all across -- from many
aspects, from industry and so forth, scientists that have
these backgrounds. And they work to come out to their
conclusions, on an independent basis, so we can make sure
we're looking in that direction. David, if you want to
kind of give them a call.
DR. BOWLES: Thank you.
COMMISSIONER AVILA: Dr. McKinney, can I ask
you a question?
DR. McKINNEY: All right.
COMMISSIONER AVILA: An acre-foot, is that a --
tell me what that is. Is that volume, or is that square
footage? What's the unit of measure?
DR. McKINNEY: 326,000 gallons.
COMMISSIONER AVILA: Okay.
DR. McKINNEY: And basically, an acre-foot is,
in the agricultural use is -- it's one foot of water on
an acre of land. That's what's it is.
COMMISSIONER AVILA: It's a volume?
DR. McKINNEY: It's a volume.
DR. BOWLES: It's also -- another way of
looking at it would be the amount of water that a family
of six would require for a year's use.
COMMISSIONER AVILA: Say that again.
DR. BOWLES: It's the amount of water that a
family of about five to six people would require for one
year's use.
COMMISSIONER AVILA: Okay.
DR. BOWLES: Commissioners, I am David Bowles.
I'm the Chairman of the Biological Advisory Team. The
BAT, as we call ourselves, did meet last Tuesday.
Following our independent and individual reviews of the
HCP, we unanimously concluded that it was inadequate for
its stated goal of protecting, conserving the endangered
species habitat. In effect, the spring runs at Comal and
the San Marcos Springs and the downstream interests to
the Gulf Coast estuaries.
Following our review, we asked the Edwards
Aquifer Authority to strongly consider revising the HCP
to prepare a draft that a predecessor of stewardship for
those systems, including our interests downstream. And
they have agreed to do so.
Let me quickly go through some problem areas
that we identified. But in general we had problems with
the biological goals that this HCP was going to meet.
One is that we felt that it certainly did not
consider instream flow impacts, particularly one species
there called the Cagles-Matt [phonetic] turtle the
National Wildlife Service has considered as listing as
warranted for federal endangered status. They felt it
properly considered that, as well as downstream user
interests such as the later chemical companies along the
Lower Guadalupe.
Along the same lines, they did not adequately
consider the freshwater inflows into the San Antonio bay
system. In fact, they didn't consider them at all. And
we have a lot of interest there, such as the commercially
important brown shrimp, fishes, and what have you, crab,
that depend on those freshwater inflows.
Part of their mitigation strategy for the
pumping limits they arrived at was to be captive breeding
programs for the endangered species. However, we
considered that to be totally unrealistic since of all
the species that Dr. McKinney showed you in the earlier
slide, only one of those can be successfully reared in
captivity at this time. And most of them, we're not even
sure where in the aquifer they actually occur. So we
don't have that data at all.
Also, they prepared several adaptive management
strategies to deal with the pumping levels that they
selected. There was many of these that were just in the
concept phase of development. They've never even been
tested; or they would be extremely expensive to
implement.
Among these was one called spring flow
augmentation, where they would artificially charge
springs, like Comal Springs, during times of drought.
The scientific community has previously indicated that
that is not a credible option. And it's just fraught
with all sorts of problems that would actually make a
situation worse rather than better, in all likelihood.
Of course, as you know, the Lower Guadalupe
River, to which Dr. McKinney indicated much of the flows
in that lower river are coming from San Marcos and Comal
Springs, in fact in droughts, it's upwards of 70 percent.
There's, obviously, a large recreational base in New
Braunfels, in San Marcos, all the way down to the Gulf
Coast, estuaries.
The HCP, as it was read, did direct economic
analysis, but only how it would affect irrigators and
water users south of San Antonio, or west of San Antonio.
It failed entirely to consider the economic impacts on
downstream interests, including commercial and sport
fishery interests, and other users as well.
And I'm not going to show you any other things
here. But that's some of the big stroke issues we had
troubles with. My letter that we will be presenting to
the Edwards Aquifer Authority on January 31, summarizing
these problems, is over six pages long. And that's
single spaced. So we have a lot of issues. But those
are the major problems.
So at this point, I'll hand it over to Ann
Bright, who will discuss some legal issues.
DR. McKINNEY: Just to kind of follow up with
the dates again. The Authority, you know, recognized
that they had some issues. And they said, Look, we'll
pull it back and we'll work with this. They're working
with us on the biological side to try to correct all
those type of things, which is a positive. But they've
got a long way to go because it is so complex.
MS. BRIGHT: Good afternoon. I'm Ann Bright,
General Counsel. And I should first say that the bulk of
the discussion that I want to have with you today will be
in executive session, under the exception to the Open
Meetings Act, that allows legal consultations in
executive session. But there are a few things I wanted
to go ahead and point out.
First of all, the citizen's advisory committee,
as well as the biological -- the BAT -- advisory team --
they're both subject to the Open Meetings Act. So all of
these meetings, all these discussions, have actually been
in public. So a lot of the information that you're
getting today has been publicly presented.
Dr. McKinney found this wonderful little slide
bulletin, about whether we can expect a grievance. And I
think the answer is yes.
There are a few things -- Section 83.020 is the
primary provision that is going to affect the Commission.
It provides that a member of the citizen's advisory
committee who feels that the plan was not developed in
accordance with the statute can file a grievance with the
Commission.
There are a few things that are very clear
about this procedure. The grievance has to be filed
within 60 days after the plan is finalized. It has to
state the sections of the statute that were not complied
with, according to the grievant. And it has to state the
facts that the grievant bases his grievance upon
Once it gets to the Commission -- and the
section we're probably going to look the most at is
Section 83.020(c). And there are a number of options
that have been discussed and can be discussed, in
connection with how the Commission handles grievances
under this section, including presentations before this
Commission, referral under the Administrative Procedures
Act under grievance to the State Office of Administrative
Hearings, or a combination of those.
And there are legal consequences and legal
issues connected with all of those that will be discussed
more in providing legal advice to you.
And that's pretty much it for my presentation,
my portion of this.
COMMISSIONER MONTGOMERY: I'm going to ask some
real basic questions, because I'm brand new on this one.
These committees -- we have appointed or will appoint?
MS. BRIGHT: The BAT and the CAC, they have
both been appointed. They're required to be appointed --
the members are appointed by different groups. The
Commission appointed a member to the biological advisory
team, which was Dr. David Bowles, to chair that. Also
appointed was a member of the CAC, which was Mr. Herron.
And the -- I'm trying to recall. I believe
that the plan participant -- in this case, the Edwards
Aquifer Authority -- appoints a number of the members to
the citizen's advisory committee. And I'm not sure about
the biological team.
COMMISSIONER MONTGOMERY: The individual
participants are stakeholders in that process, David?
DR. BOWLES: Yes.
MS. BRIGHT: Okay.
DR. BOWLES: For the biological advisory team,
the chairman of that by statute Senate Bill 1272 is
required to be coming from Parks and Wildlife.
COMMISSIONER MONTGOMERY: What is the
consequence of the grievance? We hear it. We act on it.
What is the consequence or the remedy for a grievance?
MS. BRIGHT: The consequence is that the plan
participant cannot seek the federal permit until -- if
there is a grievance that is filed, and the Commission
should decide ultimately that there is a problem with the
development of the plan, the plan participant cannot seek
the federal permit until it adequately addresses those
issues.
CHAIRMAN ARMSTRONG: It sounds -- do we have
any other questions from the commissioners?
(No response.)
CHAIRMAN ARMSTRONG: We look forward to your
further information. This is a very complicated issue
and not one that's likely to go away. But we look
forward to wrestling with all that out.
COMMISSIONER FITZSIMONS: Wrestling?
CHAIRMAN ARMSTRONG: Wrestling with it.
COMMISSIONER FITZSIMONS: We might get an
alligator.
CHAIRMAN ARMSTRONG: We have some other items
on the Conservation Committee agenda. But we're going to
postpone them until after lunch. We are hungry.
So I would like to announce that pursuant to
the requirements of Chapter 551, Government Code,
referred to as the Open Meetings law, an executive
session will be held at this time, for the purpose of
consideration of Section 551.071 of the Texas Open
Meetings Act regarding pending litigation and legal
advice, and Section 551.072 of the Texas Open Meetings
Act regarding real estate matters.
(Whereupon, at 12:15 p.m., the hearing was
adjourned, to reconvene this same day, Wednesday, January
22, 2003, at 3:05 p.m.)
A F T E R N O O N S E S S I O N
3:05 p.m.
CHAIRMAN ARMSTRONG: We are reconvening the
Conservation Committee, agenda item number four. We will
have the status report on the cooperative agreement on
instream flow studies with the Texas Commission for
Environmental Quality, and Texas Parks and Wildlife, and
the Texas Water Development Board. And Dr. Larry
McKinney and Kevin Mayes will brief us on this.
DR. McKINNEY: Chairman, Larry McKinney, Senior
Director of Aquatic Resources. I'm just going to do a
brief introduction and turn it over to Kevin, who has
been doing the main work on this project we have here.
I want to introduce this just by -- I'll give
you a little bit of history, I think, which sets the
background on what we're doing on this instream flow
studies. Of course, we've been looking at determining
how much water we need into our estuaries, and our bays,
and our rivers to maintain their ecological health. And
we finished a long series of studies on determining those
freshwater inflows on our bays and estuaries.
I think that it really -- in the last couple of
years, and certainly in the last year -- has begin to hit
home with a lot of people about how important these
studies are, and how much attention they have garnered,
as we make some very important decisions about water
across the state, for example, the briefing we just gave
you on the Edwards Aquifer Authority.
And one of the things that the legislature did
last session, in Senate Bill 2, was to direct our agency,
in conjunction with our other two sister agencies in
Water Resources, to do the same thing for our rivers as
we did for the bays and estuaries.
And so what we have done -- and I want to very
much acknowledge the leadership of our chairman, and Bob
Cook, in helping to make sure -- working with the other
two agencies, the CDQ, TCEQ, and the Water Development
Board -- to work together on this and to make sure that
we learn the lessons of how we do our inflow studies, and
what to do and what not to do; to make sure that when we
complete these instream flow studies that they are going
to be very useful, the best science that's available; and
that all of the state agencies are right there at the
table so we can implement those and make the best use of
them.
So that is what we are going to cover today.
Kevin is going to cover that. By way of introducing
Kevin -- of course, we draw on lots of experts from
around the country and universities, to talk about
instream flow studies. But we have them on our staff.
In fact, with Kevin, Dr. Randy Moss is here. And Joe
Tringle [phonetic], our hydrologist, is also here.
We have some of the best folks in the country
right on staff doing this. In fact, Kevin is one of the
authors of this, which is basically the Bible, Instream
Flow Studies Across the Country. So by way of -- I'm
telling you these guys know what they're talking about.
And we're going to benefit from that.
So, Kevin, I'm going to let you go. And I
think that's the button. And tell them what we're doing.
MR. MAYES: Okay. Dr. McKinney, Madame
Chairman, and Commissioners, my name is Kevin Mayes. I'm
the team leader for the River Assessment Team, as part of
the Resource Protection Division.
And last legislative session, there was Senate
Bill 2, which modified the water code to include a
section on the collection of instream flow data; and,
basically, just laying out the three state agencies
mentioned, would jointly establish and continuously
maintain an instream flow program to determine, you know,
how much water does a river need.
And they gave us a timeline of, basically, the
end of 2010; and, you know, told us to develop a work
plan that prioritizes the studies; and set some
deadlines; and that these studies would be used in the
Commission's review of water rights, and their management
plans, and their basic transfers.
So I'm going to talk mostly about that, what we
call the programmatic work plan. It kind of lays it out,
the priorities, et cetera.
MR. COOK: Kevin, let me ask you to move that
microphone closer. There you go. Good.
MR. MAYES: Thank you. The joint studies are
guided by an MOA, which was signed in October 2002 by the
three agencies and by this work plan, which we have a
final of the draft. We're just kind of waiting on some
signature pages to get together on that before we finish
that.
So that work plan, you know, was finished in
December. And we're starting on another product that the
staff of the three agencies are working on, called the
technical overview, which is going to be more detailed in
its methodologies.
So we have some time frames laid out in the
programmatic work plan, in some of the basins and sub-
basins that we want to do these studies in. So we have
the schedule, you know, basically to hit these six
basins. And that's based upon whether or not mother
nature cooperates. And it's been part of the problem
with the Guadalupe River study that we've been doing
since '98 -- is we either have a drought or we have
floods. And so we haven't been on the Guadalupe in a
year because of the floods in July 2002.
We're looking at the Lower Guadalupe. It's
ongoing. We hope to have that one done by the end of
2004. Some work's going on, on the Lower Brazos, but we
would need to start fresh on the Lower San Antonio, the
Middle Trinity, the Lower Sabine, and the Middle Brazos.
So, you know, one of these studies might take four or
five years to get accomplished.
We came up with a second tier of studies, just
in case priorities changes, or, you know, additional
resources are made available. We came up with a second
list and those include the Upper Guadalupe, the Neches
River, the Red River -- really a tributary to the Red
River, and the Upper Sabine, being upstream of Toledo
Bend.
Two special studies include something on the
Sulphur River and then the Lower Colorado River -- kind
of a follow-up because there's already been an instream
flow done on the Lower Colorado. We need to find out if
those numbers that have been implemented in the
management plan are being effective at protecting the
ecological goals that were set in that state.
The scope of the studies, basically -- I don't
want to go into a lot of detail about these -- but, you
know, the biology. We need to understand what species
we're dealing with. And we need to understand the
patterns of flow in the river.
We need to understand how those patterns of
flow affect the geomorphology, which is the transport of
sediment and the building of habitat in the river; the
water quality -- primarily factors like dissolved oxygen
and temperature -- and then, you know, a term that the
book refers to -- it's called connectivity. And we're
talking about lateral connectivity and longitudinal
connectivity. So you have to have connections in the
river system, both to the flood plain and upstream and
downstream, to try to maintain these ecosystems.
So that slide there is a, basically, an oxbow
that's forming on the Lower Brazos. And so that
connection to that oxbow -- between the river, and the
flow, and that habitat -- those are important areas. And
we need to understand those connections.
So for each one of these studies we have a plan
of attack. And, basically, it's to come up with a study
design. In that study design, we need to be able to
synthesize existing information, you know, gather some
baseline information on what species we're dealing with,
and what are the resources used, you know, the water
resource use as well.
But then once we get that done, then we'll
start doing the actual evaluations. And there's four of
those that we've categorized into physical processes,
which covers that geomorphology and connectivity, the
biology, water quality, and the hydrology, and the
hydrologics. So that's actually -- you know, we're on
the ground collecting data that we need to develop some
models.
And part of that model development is we're
going to have to integrate these different pieces, and
provide some interpretation of that information, and
develop a study report, and the recommendations on, you
know, how much water a river needs. And then to follow
that up, once those numbers are implemented, you need to
do some monitoring and validation to see if you're
meeting your goals.
The programmatic work plan also lays out what
the roles of the different agencies are going to be.
Some of them -- there was a natural fallout, you know,
primarily, Parks and Wildlife having the lead on biology,
and fish and wildlife-type resources. A lot of the other
elements of the work plan, we assigned them to joint
responsibility because there was a lot of
interdisciplinary nature in those requirement of
multidisciplinary team of engineers, and biologists, and
hydrologists, and a geomorphologist to be able to
actually, you know, to handle those elements.
There is a peer review component of this. And
the part that's going to be peer-reviewed initially is
this technical overview that's going to describe the
means and the methods in much more detail than the
programmatic work plan is going to do.
The National Academy of Sciences is going to
provide that first level of peer review on that technical
overview, which we plan to have done by the end of March.
So then we'll submit it to NAS, get some feedback on what
they think, if we're on the right track, or the wrong
track, or what we've forgotten, or, you know, what they
might think are unnecessary.
The ongoing review, we hope to use the Instream
Flow Council, which is, you know, able to provide reviews
of study plans and reports. Something, you know, if we
have new methods that are developed during the process of
this, then they can help us with that. And also provide
expert assistance, if we have an issue that comes up
where we need to bring in somebody that maybe we don't
have the expertise somewhere.
And then the final part is to have, basically,
ongoing involvement of our cooperators, river authorities
and other affected stakeholders. That will be ongoing
throughout the process. We want to bring them in at the
beginning and all the way through the end.
So, basically, it's, you know, a strategic goal
with Parks and Wildlife to develop not only the
freshwater inflow numbers but also instream flow numbers
for rivers and streams. And we instream flow biologists
think in terms of regimes, a water quality regime or a
water quantity regime. A flow regime is necessary to
maintain these ecosystems.
So, with that, I'm finished.
DR. McKINNEY: We'd like to answer any
questions.
COMMISSIONER MONTGOMERY: Quick question. The
NAS -- who actually reviews it? How does that work?
MR. MAYES: The National Academy of Sciences --
I believe, it has different compartments, or organized
departments. There's a water resources department that
can handle this type of, you know, science and
engineering issue.
COMMISSIONER MONTGOMERY: I want to -- I'm sure
the Commission realizes the importance -- I want to
compliment you in taking this template to that level so
that we end up with very sound objective footing in this
process. Because I think we all understand how
potentially contentious this whole area will get. And
having a strong foundation with that seal of approval on
your methodology is a great route to go.
DR. McKINNEY: We'd like to take credit for it.
But a good part of it goes to our chairman at the end who
has helped on that very much, to get that done. And we
work with the other agencies. But she's been
instrumental in getting us on the inroads there, and
recognized early on how important it was to do it. So we
do thank you on that.
COMMISSIONER MONTGOMERY: I hope we keep that
kind of standard with all our science and engineering.
CHAIRMAN ARMSTRONG: I want to mention here the
importance of the cooperation that we have received from
Wales Madden at the Texas Water Development Board, and
the executive director there, Kathleen White, Chairman,
Houston, and Margaret Hoffman, and Kevin at Water
Development Board, and, of course, our staff.
I also want to compliment our staff. I've only
been on the Commission for three years. And not being a
scientist, it was very difficult for me to assess the
quality of our own science. And I am very proud to say
that three years later my confidence in the work that's
done by Parks and Wildlife, the Water Development Board,
and the Texas Commission on Environmental Quality has
only grown.
And I think the quality of the work you do is
supportable in every way. That's not to say that science
is a static beast. It's not. It's dynamic. It should
always be. It should be encouraged to be as dynamic as
possible.
But I think in learning some of the lessons
from the past, as you said, that the three agencies agree
up front on a process, a methodology, that not only they
can rely on -- and that is reviewed on a regular basis by
the National Academy of Science, by the science community
in general -- will only improve the quality of the
knowledge that we have in making tough policy decisions.
And my compliments to the other agencies. I
think everybody's working very well together.
DR. McKINNEY: Absolutely. And we appreciate
those words for it all. I think you're right on track
with it. Thank you very much.
COMMISSIONER FITZSIMONS: Larry, I have a
question, or Kevin, whoever.
DR. McKINNEY: I'm sorry.
COMMISSIONER FITZSIMONS: When you're looking
at instream flow -- this is probably a pretty basic
question -- as to minimum requirements for biological
health in a stream, that's often -- is that different,
maybe, than the minimum in the estuary? In other words,
one level of water is necessary to maintain the health of
the -- an estuary. And a different level may be the
minimum necessary to maintain a freshwater river
ecosystem, or not. Are they --
MR. MAYES: I believe that not only do you need
to look at the magnitude, but you have to look at the
timing of those flows as well. The freshwater --
COMMISSIONER FITZSIMONS: The whole regime?
MR. MAYES: Yes, sir. The timing of the flows
that are needed in the river. You know, most fish spawn
in the springtime. And the spawning can be triggered by
higher flow events that normally occur in the spring. So
they've timed their reproductive strategies with higher
flow events. And that higher flow, you know, is good
for, you know, that there's more habitat available for
the fry, that there's probably more protection from
predators during that time period when you have higher
velocity.
So you have to look at the timing of the flows
in the river and the timing of the flows of the
freshwater inflows going into the bays and estuaries. So
if you get a big slug of water going into the bay and
estuary, that's considered pretty good. Because it
brings in a lot of sediments and nutrients. But it also
is beneficial.
But I don't think anybody's correlated that the
needs of a particular bay are the same as the needs of
the river system.
DR. McKINNEY: Historically, of course, they
were.
COMMISSIONER FITZSIMONS: Exactly.
DR. McKINNEY: Because rivers ran to the sea
and they all kind of formed together. Where it's begun
to get disjointed -- and we see it in places like the
Colorado River and others -- is we manage the river
system, putting reservoirs in, and manipulate that water
where we capture floods and so forth. Those things have
become more separated. So you begin to look at -- okay,
what can you do to get a minimal amount of water to
sustain an estuary? And how does that work with the
river?
So at one time, it was the same thing.
COMMISSIONER FITZSIMONS: They were the same
number.
DR. McKINNEY: But it's growing apart.
COMMISSIONER FITZSIMONS: Well, once you
segment the river system, it's no longer the same number.
DR. McKINNEY: Just like on those ranches, when
you start managing something, you're going to be managing
it from then on. You don't just let it go once you've
got into it. It's hard to go back to let it go.
MR. COOK: I'd like to follow up a little bit
on the Chairman's comments and Commissioner Montgomery's
comments. You know, the studies -- and I do, sir -- and
I have, likewise, learned to appreciate the value, the
importance of this science. Water and the need for water
over the next several decades, we're all going to be
dealing with on a daily basis.
And this data that we're talking about here,
this instream flow study data, and our basin-estuary data
are going to be questioned every day by people, by
cities, by users, whether they're fisherman or hunters.
You know, is that a good study? Is that good data? Is
there better data? Is there a different way we should
have done it?
So this review, right now, early in this
process, and this agreement between these three agencies,
I think is something that our legislature will benefit
from. I think the resources will benefit from it. And
it will help us, I think, as far as the credibility. You
know, we know it's good information. But that peer
review, that holding it up to the light, right from the
very beginning, is, I think, very important from the
standpoint of standing the challenges that we're going to
have almost daily from now on.
DR. McKINNEY: Thank you.
(Whereupon, this Conservation Committee meeting
was concluded.)
C E R T I F I C A T E
MEETING OF: Texas Parks and Wildlife Department
Conservation Committee
LOCATION: Austin, Texas
DATE: January 22, 2003
I do hereby certify that the foregoing pages,
numbers 1 through , 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 Department.
02/12/03
(Transcriber) (Date)
On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731
Top of Page