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
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