Presenter: Scott Boruff

Commission Agenda Item No. 12
Action
Implementation of Recommendations of the State Auditor's Office Audit of State Parks Financial Processes
August 23, 2007

I. Executive Summary: In March 2007, the State Auditor's Office (SAO) issued a report titled Financial Processes at the Parks and Wildlife Department (the audit). TPWD takes the SAO's audit recommendations seriously and is committed to fully addressing the issues raised by the SAO as set out in TPWD's responses contained within the audit report.

II. Discussion: TPWD staff will brief the Commission on the audit recommendations and the status of the TPWD's implementation of those recommendations. Staff will seek Commission approval of a resolution attached as Exhibit A supporting the SAO recommendation 2.B.7 that TPWD seek input from legislative oversight committees and local communities in order to maintain a state park system that has statewide merit and serves TPWD's goals and mission. Staff will also seek Commission approval of prioritized criteria for capital improvement and repair needs attached as Exhibit B. This action will support implementation recommendation 3.6.

Staff will also seek Commission input on the changes to the agency's land transaction and conservation policy, attached as Exhibit C. The changes require public hearings and six month's notice to the Legislative Budget Board and the Governor's office of planned facility closures. Also, planned facility closures would be presented to the Commission in at least two meetings. In addition, this policy change would require that before a state parks site can be transferred to a local governmental body, the local governmental body must submit a management and operating plan to be approved by TPWD. These policy changes will address SAO findings 2.B.4, 2.B.6 and 2.B.8.

III. Recommendation: Staff recommends the following motions:

Motion 1

"The Texas Parks and Wildlife Commission adopts the resolution attached as Exhibit A requiring that TPWD staff seek input from legislative oversight committees and local communities in order to maintain a state park system that has statewide merit and serves the Department's goals and mission."

Motion 2

"The Texas Parks and Wildlife Commission adopts by resolution (Exhibit B) the prioritized criteria for capital improvement and repair needs (Exhibit C)."

Attachments – 4

1. Exhibit A – Resolution - SAO Recommendation 2.B.7
2. Exhibit B – Resolution - SAO Recommendation 3.6
3. Exhibit C – Prioritized Criteria for Capital Improvement and Repair Needs
4. Exhibit D – Land Transaction and Conservation Policy - SAO 2.B.4, 2.B.6 and 2.B.8

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Commission Agenda Item No. 12
Exhibit A

A Resolution by the Texas Parks and Wildlife Commission Requiring the Solicitation of Input on the State Parks System

Robert L. Cook
Executive Director
Texas Parks and Wildlife Department

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Commission Agenda Item No. 12
Exhibit B

A Resolution by the Texas Parks and Wildlife Commission Clearly Establish Prioritization Criteria for Repairs and Capital Improvements

Robert L. Cook
Executive Director
Texas Parks and Wildlife Department

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Commission Agenda Item No. 12
Exhibit C

Prioritized Criteria for Repairs and Capital Improvements
Texas Parks and Wildlife Department
August 23, 2007

I. Health and Safety

Projects necessary to prevent hazardous conditions that may negatively impact the physical well being of staff and the public.

II. Regulatory

Projects necessary to bring assets into compliance with current rules, laws, codes, and regulations.

III. Business Continuity

Projects necessary to maintain the successful operation of department programs, facility assets, and services and promote visitation and revenue such as major repair, minor repair and maintenance.

IV. Mission Support

Projects necessary to support the conservation and preservation of cultural and natural resources, and enhance recreational and educational opportunities.

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Commission Agenda Item No. 12
Exhibit D

Land Transaction, and Conservation and Facility Closure and Transfer Planning Policy

Policy Number: LF-03-01
Type of Policy: Lands and Facilities
Date: July 2003 (Revised: January 2007)

Purpose

This document establishes policies that ensure Texas Parks and Wildlife Department's (TPWD or Department) land conservation decisions are based on Department priorities and conducted in a fair and open manner with ample opportunity for public comment. It also creates procedures to coordinate all TPWD resources efficiently when conducting land transactions.

Background

The Department must carefully consider and coordinate capital improvements to facilities because of the long-term implications of these sizeable investments. Decisions relating to the divestiture and acquisition of land will have especially long lasting impact on the Department. The need exists to prioritize potential land acquisitions and the reinvestment of proceeds from strategic land sales so that limited land acquisition funds are invested wisely for the state and the Department.

TPWD's legal authority for various land transactions is found in the Parks and Wildlife Code. Some examples include:

• §§11.037(c), 13.002-003 - Purchase of Land for use as a State Park, Natural Area
• §§11.043(c), 81.401 - Purchase of land for use as a Wildlife Management Area
• §13.005 - Purchase of land for use as a Historic Site
• §13.008 - Solicitation, Receipt, and Transfer of Land
• §13.009 - Sale or Exchange of Land
• §26.001-26.004 - Protection of Public Parks and Recreational Lands
• §§81.102-103 - Purchase of Land for Use as a Fish Hatchery

Definitions

For the purpose of this policy the following applies:

Land Acquisition:

Transfer and transfer of jurisdiction, purchase, donation, or land exchange resulting in additions to TPWD's real property inventory.

Land Disposition:

Sale, exchange, transfer and transfer of jurisdiction resulting in a loss to TPWD's real property inventory.

Land Trade:

An exchange of real property per §13.009 Sale or Exchange of Land, Parks and Wildlife Code.

Land Transactions:

Transactions involving land disposition, land acquisition, land trade, granting surface use privileges, easements and/or recommending mineral leases on TPWD lands. A land transaction under this policy does not include the acquisition of non-possessory property rights, such as a third party right to enforce conservation easements or other restrictive covenants.

Land Conservation:

• Coordinating and executing land transactions on behalf of TPWD;
• Evaluating, planning, and implementing statewide land conservation needs for TPWD consistent with TPWD's Land and Water Resources Conservation and Recreation Plan;
• Coordinating the development of mitigation banks in accordance with the TPWD Mitigation Banking Policy.

Right of First Offer to Adjacent Landowners:

A procedure in which TPWD establishes a sales price for TPWD property and offers the property to an adjacent landowner at that price. If the adjacent landowner declines the offer or if terms cannot be reached with the adjacent landowner, TPWD may offer the property to all proposed buyers at the highest price.

Facility Closure

The complete or partial closure of a state park, state historic site or wildlife management area by TPWD, including significant reduction in programs, services or hours of operation.

Planned Facility Closure

A non-routine facility closure that is reasonably foreseeable by TPWD. A planned facility closure does not include a facility closure due to a weather or other type of emergency, including, but not limited to a water or wastewater system failure, destruction of a facility by an act of nature or otherwise, the closure of a facility for construction, repair or maintenance, and the normal seasonal closure of a facility.

Policy

• All Department land transactions will be executed in compliance with:
  • TPWD's Land and Water Resources Conservation and Recreation Plan
  • Existing department plans and directives
  • Texas Parks and Wildlife Department Commission policy and directives
  • Texas law and appropriation authority
• All land negotiations will be carried out with sensitivity to the privacy of the landowners the department is dealing with. "Terms and Conditions" of in-process negotiations will be handled in such a way as to protect the confidentiality for both the buyer and the seller, while recognizing that disclosure of this information is governed by the Texas Public Information Act. Before signing or otherwise entering a non-disclosure agreement, employees should consult with a Legal Division lawyer to ensure compliance with the Texas Public Information Act.
• All real property transactions will be carried out in a manner that is easily understandable, fair, and consistent with the agency's intent to conduct its affairs openly and with ample opportunity for public comment by TPWD's conservation partners and the general public.
• TPWD will not employ the power of eminent domain in land transactions.
• The Land Conservation Program (LCP) will be the primary Department contact for TPWD statewide land conservation efforts that result in changes to Department property inventory.
• All Department land conservation strategic planning activities (e.g., TPWD Land and Water Resources Conservation and Recreation Plan, Texas Outdoor Recreation Plan) will be coordinated with the Land Conservation Program.
• All TPWD land transactions will be coordinated through the Land Conservation Program. The Land Conservation Program will implement and maintain a procedure for the prioritization, coordination and funding of proposed and required land transactions relating to TPWD programs and facility operations. (see, Procedure A, "Land Acquisition Procedures"). The LCP will implement and maintain a procedure for the coordination and review of easement and surface use requests on TPWD facilities (see, Procedure B, "TPWD Easement Review Process").
• The Land Acquisition Coordination Committee is comprised of the following staff positions (or appointed delegate):
  • Director, Land Conservation Program
  • Director, State Parks Division
  • Director, Wildlife Division
  • Director, Infrastructure Division
  • Director, Inland Fisheries Division
  • Director, Coastal Fisheries Division
  • General Counsel
  • Chief Financial Officer
• The Land Acquisition Coordination Committee will meet on a regular basis to:
  • Prioritize potential land acquisitions and land dispositions
  • Formulate funding strategies for the highest priority land projects
  • Make land transaction recommendations to the Deputy Executive Director for Operations for consideration and action
• When a property is proposed for acquisition as a result of settlement negotiations related to a claim that is in litigation or that could be litigated, the proposed acquisition shall be submitted to the LCP for consideration at the earliest practicable time in the process. The Land Acquisition Coordination Committee shall respond to the proposal within deadlines applicable to the specific negotiation process. The Land Acquisition Coordination Committee shall recommend to the Deputy Executive Director for Operations that the proposal be recommended to the Commission, eliminated from consideration. or recommended to the Commission subject to the satisfaction of identified conditions.

Public Notice And Input To Tpwd Land Transactions

Requirements Applicable to both Land Acquisitions, and Dispositions and Planned Facility Closures, and Facility Transfers

• Land acquisitions, and dispositions and planned facility closures will normally will be presented in at least two Commission meetings.
• Public notification. A notice will be published in the Texas Register and on the TPWD Internet web site at least 30 days prior to the Commission meeting at which any action on a proposed land transaction will be considered. Notice of the proposed transaction will also be published in a local newspaper prior to the Commission meeting at which action will be considered.
• Open Meetings Act Compliance.
  • Notice of both meetings at which the transaction will be discussed will be posted with the Secretary of State in accordance with the Open Meetings Act. TPWD will normally post notice of meetings 9 days in advance of the meeting, rather than the 7 days required by the Open Meetings Act.
  • Proposed land transactions may be discussed in Executive Session if such a discussion is consistent with the requirements of the Open Meetings Act.
• Public input. After a briefing in Executive Session and/or Public Session at the first meeting, the Commission may direct staff to proceed with gathering public input and official comment, including comment from appropriate local and state officials. Public input may be by written comments, at a public hearing and/or through another method likely to obtain public input. This public input will then be presented to the Commission at the next or later scheduled meeting for open discussion and public testimony. The Commission may then take action or not, at its discretion.
• If necessary, the Commission may schedule a special meeting to consider land transactions, consistent with state law.
• Process exceptions. Exceptions for this process may be approved by the Executive Director for easements, for the acquisition and disposition of small parcels that are clearly housekeeping in nature, and for recommendations to the Board for Lease regarding oil and gas operations. In such cases, the Commission could be briefed in committee meeting with action scheduled the next day during open Commission meeting (or later the same day, in the case of a single-day Commission meeting). In such situations, staff will endeavor to publish notice in the Texas Register and on the TPWD web site at least 30 days prior to the Commission meeting at which the proposed transaction will be considered.

Additional Requirements for Land Disposition and Planned Facility Closures

• The 30-day notice of the meeting at which action will be considered will contain enough detail for the public to easily identify the property in question, including sales price, restrictions, conditions and rationale for the disposition.
• TPWD staff will hold a public hearing prior to the Commission meeting at which action is to be taken on a land disposition or planned facility closure.
• TPWD staff will notify the Legislative Budget Board and the Governor's office at least 6 months prior to a planned facility closure.
• When selling land, TPWD may give a right of first offer to adjacent landowners.
• Additional Requirements for Land Acquisition
• The 30-day notice of the meeting at which action will be considered will not include sales price or information that would identify the private sector seller or the specific tract of land and will normally be posted only after a contract is in place.

Legislatively Mandated Acquisitions and Dispositions

These transactions will take place in accordance with the legislation mandating the transaction. Unless the legislation requires action by the Commission, such transactions may occur without Commission action. If the legislation requires Commission action, an effort will be made to conduct the transaction in accordance with the normal policy for land acquisitions and dispositions, set out above.

Transfer of Property to the Texas Public Finance Authority

This policy shall not apply to a transfer of property to the Texas Public Finance Authority for the purpose of issuing revenue bonds or other debt for the benefit of TPWD pursuant to Chapter 1232 of the Texas Government Code, so long as the Commission has entered an appropriate resolution authorizing the issuance of the revenue bonds.

Transfer of Property to Local Governmental Entities

Proposals submitted by local governmental entity seeking transfer of a state park to the governmental entity should contain a plan for future management and operation of the park. Any state park land transferred to a local governmental entity must be permanently dedicated for public park and recreation purposes and shall revert to TPWD if the governmental entity fails to use the property for these purposes. TPWD shall furnish the receiving governmental entity with any biological survey, site assessment, natural and cultural resource data and management planning documents in TPWD's possession. Based on this information, the local governmental entity must prepare and submit to TPWD a Site Management Plan that addresses public use, cultural and natural resource protection at the site to include resource-based vegetation management, riparian and water quality protection, and wildlife management. TPWD must approve the Site Management Plan before the site can be transferred.

Roles And Responsibilities

The Land Conservation Program (LCP)

• The Land Conservation Program will:
  • Coordinate with the land-holding divisions to develop acquisition priorities;
  • Coordinate within the conservation community (non-governmental organizations or governmental organizations that provide public access to land) to facilitate TPWD statewide land conservation strategies;
  • When directed by executive management, and in cooperation with the appropriate Division Director or designee, negotiate the "terms and conditions" under which the Department might acquire, dispose, or accept real property obligations to include operations and maintenance responsibility, except when the proposed transaction is the result of settlement negotiations related to a claim that is in litigation or that could be litigated, in which case negotiations will be conducted by representatives from the affected division and the department's legal counsel;
  • Coordinate department land issues with the Texas General Land Office to include actions concerning "unused and underutilized land".

Wildlife, Inland Fisheries, Coastal Fisheries and State Parks Division Directors

As the Department's major land-holding divisions, the directors will coordinate within their divisions to identify land acquisition/disposition needs and function within the Land Acquisition Coordination Committee to prioritize specific transactions and recommend funding strategies based on overall department needs and limitations.

Chief Financial Officer and Infrastructure Division Director

These positions will function within the Land Acquisition Coordination Committee to prioritize land transaction recommendations that are in the long-term strategic interest of the department and are in compliance with applicable laws, directives, and legislative appropriation.

General Counsel or Designated Department Lawyer

This position will function within the Land Acquisition Coordination Committee to ensure that all transactions comply with applicable law and receive appropriate legal review.