Texas Parks and Wildlife Commission
Commission Meeting
Nov. 3, 2011
Commission Hearing RoomTexas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744
BE IT REMEMBERED, that heretofore on the 3rd day of November 2011, there came to be heard matters under the regulatory authority of the Texas Parks and Wildlife Commission in the Commission Hearing Room of the Texas Parks and Wildlife Department Headquarters Complex, to wit:
APPEARANCES:
THE TEXAS PARKS AND WILDLIFE COMMISSION:
- T. Dan Friedkin, Houston, Texas, Chairman
- Ralph H. Duggins, Fort Worth, Texas, Vice-Chairman
- Antonio Falcon, M.D., Rio Grande City, Texas
- Karen J. Hixon, San Antonio, Texas
- Dan Allen Hughes, Jr., Beeville, Texas
- Bill Jones, Austin, Texas
- Margaret Martin, Boerne, Texas
- S. Reed Morian, Houston, Texas
- Dick Scott, Wimberly, Texas
THE TEXAS PARKS AND WILDLIFE DEPARTMENT:
- Carter P. Smith, Executive Director, and other personnel of the Texas Parks and Wildlife Department
| Division | Name | Title | Location | Years |
|---|---|---|---|---|
| WL | Johnny R. Cathey | Fish & Wildlife Tech III | Taylor | 29 Years |
| INF | Leonard C. Williams | Program Supervisor II | Austin | 28 Years |
| COMM | Carol Otto | Printing Serv. Tech V | Austin | 22 Years |
| WL | Jerry Warden | Program Spec. V | San Antonio | 22 Years |
| Division | Name | Title | Location | Years |
|---|---|---|---|---|
| LE | Kenneth L. Baker | Captain | McAllen | 40 Years |
| IF | Toni L. Oldfather | Staff Services Officer V | Austin | 30 Years |
| WL | Jacob Damon Vidrine | Fish & Wildlife Tech III | Port Arthur | 25 Years |
| IF | Jeffrey Bowling | Fish & Wildlife Tech III | Tyler | 20 Years |
| LE | Irma A. Gutierrez | Administrative Asst. IV | San Antonio | 20 Years |
| Donor | Description | Detail & Purpose of Donation | *Amount | |
|---|---|---|---|---|
| 1 | Coastal Conservation Association, CCA of Texas | Capital Property Item | Law Enforcement during night time patrol duties ATN PVS7-3 Night Vision Goggles | $17,100.00 |
| 2 | Bill Engledow | Other Goods | Late 1800's Doctor's Buggy , Condition-Refurbished-Good | $2,200.00 |
| 3 | Recreation Equipment Inc., REI | Cash | Specific to fund printing of State Park Guide publication in Spanish | $25,000.00 |
| 4 | Bay Area Master Naturalist | Other Goods | Assist with prairie restoration at Sheldon Lake SP - AG5881 Agmeier Tractor Mount post hole digger w/9" auger | $989.00 |
| 5 | Texas Wildlife Association and Foundation | Cash | Funding specifically for desert bighorn sheep restoration and management | $136,800.00 |
| 6 | Texas Hunter Education Instructor Association | Controlled Item | 200 Series Laser Detection Camera Package(a component of the Laser Shot System) - Qty 13 | $6,500.00 |
| 7 | Brazos Bend SP Volunteer Organization | Capital Property | John Deere Gator ATV, Serial # 1m04x2sjkbm061232 | $7,259.00 |
| 8 | Texas Parks and Wildlife Foundation | Cash | Sheldon Lake Observation Tower | $23,000.00 |
| 9 | Nancy Perkins | Cash | Wildlife Rehabilitation in memory of Paul Mack | $500.00 |
| 10 | Faith Biggs | Cash | Park Support-Is a regular customer | $500.00 |
| 11 | LDL Friends of Dinosaur Valley SP | Controlled Item | 4x6 Enclosed Interpretive Trailer | $1,250.00 |
| 12 | Friends of Monahans Sandhills SP | Capital Property | One Ice Machine and One 4 shelf Refrigerator | $3,517.50 |
| 13 | Black Sheep, Inc. | Other Goods | 742 Personal Flotation Devices-Youth, Child and Infant Sizes | $4,908.49 |
| 14 | Southwest Operating Co. | Other Goods | 873.46 feet of 2 3/8" pipe | $1,222.84 |
| 15 | Texas Parks and Wildlife Foundation | Cash | Sheldon Lake Observation Tower | $22,000.00 |
| Total | $252,746.83 | |||
*Estimated value used for goods and services
| Name/Organization, Address | Item Number | Matter of Interest |
|---|---|---|
| Katharine Armstrong and, Tina Buford, Taking Care of Texas, | Presenters for #3 – Taking Care of Texas – Briefing | |
| Dick Brown, Attorney, P.O. Box 160575, Austin, TX 78716 | Action Item #11 – Contested case hearing – application of Joe Long & Mark Stephenson for a sand and gravel permit (SOAH Docket No. 802-09-4552), | Against |
| Brad Rockwell, 707 Rio Grande, Suite 200, Austin, TX 78701 | Action Item #11 – Contested case hearing – application of Joe Long & Mark Stephenson for a sand and gravel permit (SOAH Docket No. 802-09-4552), | For protestants |
| Vic Ramirez, LCRA, 3700 Lake Austin Blvd.,, Austin, TX 78703 | Action Item #11 – Contested case hearing – application of Joe Long & Mark Stephenson for a sand and gravel permit (SOAH Docket No. 802-09-4552), | Against |
1
1 PROCEEDINGS
2 COMMISSIONER FRIEDKIN: Good morning,
3 everyone. Welcome. This meeting is called to order
4 November 3rd, 2011, at 9:05 a.m. Before proceeding with
5 any business, I believe Mr. Smith has a statement to
6 make.
7 MR. SMITH: I do, Mr. Chairman. Thank
8 you. Public notice of this meeting contain all items on
9 the proposed agenda has been filed with the Office of
10 Secretary of State, as required by Chapter 551
11 Government Code, referred to as the Open Meetings Act.
12 I would like for this fact to be noted in the official
13 record of the meeting.
14 Mr. Chairman, I just want to join you in
15 welcoming everybody this morning. It's nice to see some
16 friendly and familiar faces out there in the audience.
17 This may be the one day of the year we actually get to
18 welcome you in from out of the cold, so delighted you
19 found a warm spot here. We're going to kick off the
20 morning here with some special recognitions, folks for
21 extraordinary service to this Agency, some colleagues
22 that are retiring, and also some special recognition to
23 some partners that have helped this Agency in some very
24 special and unique ways. And then after the
25 recognition, we'll have a quick break in which folks can
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
2
1 exit the room and then we'll go forward with the regular
2 Commission meeting.
3 For those of you that are going to stay
4 for the regular Commission meeting, I just want to
5 remind you that if you plan to speak on any item, if you
6 will sign up out there and let us know that and when
7 it's your time to speak, the Chairman will call you and
8 ask you to come forward, you'll be given three minutes
9 to state your position on the matter that you're going
10 to speak on. I'm going to be your timekeeper. Green
11 means go, yellow means start to wind it down, and red
12 means stop. So just make sure everybody is mindful of
13 that.
14 We've got a good meeting today and also
15 just because the acoustics aren't great in this room, if
16 you've got a cell phone or a PDA, I just ask that you
17 put it on vibrate or silence and if you need to have a
18 conversation, if you don't mind just stepping outside of
19 the room. Otherwise, welcome. We're delighted you
20 joined us today.
21 So thank you, Mr. Chairman.
22 COMMISSIONER FRIEDKIN: Thanks,
23 Mr. Smith. Appreciate it. Next is approval of the
24 meeting minutes from the previous Commission meeting
25 held August 25th, 2011, which have already been
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
3
1 distributed. Motion for approval? Commissioner Hughes.
2 Second? Mr. Commissioner Scott.
3 All in favor?
4 (A chorus of ayes)
5 COMMISSIONER FRIEDKIN: Any opposed?
6 Hearing none, the motion carries.
7 Next up is acknowledgment of the list of
8 donations, which have also been distributed. Motion for
9 approval?
10 COMMISSIONER DUGGINS: So moved.
11 COMMISSIONER FRIEDKIN: Moved by
12 Commissioner Duggins.
13 Second? Commissioner Hixon.
14 All in favor?
15 (A chorus of ayes)
16 COMMISSIONER FRIEDKIN: Any opposed?
17 Hearing none, motion carries.
18 And now the service awards and special
19 recognitions. Mr. Smith.
20 MR. SMITH: Thank you, Mr. Chairman,
21 Commissioners. For the record, my name is Carter Smith.
22 And a couple of things we want to do this morning; but
23 first and foremost before we do the service awards and
24 retirement, I want to have an opportunity to recognize a
25 very special group of partners for you this morning.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
4
1 I think all of y'all are certainly aware
2 by now that that Bastrop complex fire was absolutely the
3 worst fire that this State has ever seen and, in fact,
4 the third worst in U.S. history. And you're very well
5 versed in the statistics -- 1,600 homes that were lost.
6 Just utter devastation there in Bastrop County. We had
7 17 of our own colleagues that lost their homes in that
8 devastating fire and well over half of that just
9 spectacular Lost Pines Forest and 96 percent of our
10 State park that was significantly impacted from the
11 fire.
12 And you're going to hear a presentation a
13 little later on this morning from our lead resource
14 professionals that were on the front lines helping to
15 protect the park and fight the fires. And let me tell
16 you they did a Herculean job. I mean just make you
17 very, very proud of your State Park and Wildlife
18 firefighters and their professionalism and their
19 effectiveness.
20 But there's another group of individuals
21 that without them, we would likely not have a park to
22 rebuild from and in all of the stories about what was
23 lost and what was damaged, we don't have enough of a
24 chance to talk about what was saved. And what was saved
25 at Bastrop State Park was one of the great historical
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
5
1 features in your State Park system, the relic of the old
2 Civilian Conservation Corps buildings that were built
3 back in the 30s and 40s by the men and boys of the CCC.
4 Just extraordinary artisans and masons and architects
5 and builders who literally built that park from the
6 ground up and they would be awfully proud of the people
7 that you're about to recognize for helping to save those
8 buildings.
9 When the fires started to come through on
10 Sunday and Sunday night it became pretty clear that if
11 the weather predictions were right for Monday, there was
12 no way we were going to be able to stop the fire. And
13 our firefighters on scene very quickly made a decision
14 that our only hope was to try to protect the
15 infrastructure on the western end of the park, the
16 historic CCC cabins and refectory and so forth. And
17 Monday morning, our Parks team, lead by Dan Sholly, put
18 out a call and said "We don't have the dozers, we don't
19 have the water trucks, we can't fight this fire without
20 some help."
21 And so Scott Boruff called our sister
22 agency over at TxDOT, who immediately agreed to send
23 over a bulldozer to help us with dozing lines. The
24 first call I made was to Chairman Friedkin, who answered
25 that call Monday morning. Talked to his ranch manager
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
6
1 down in Carrizo Springs, Mike Thompson, and literally
2 within the matter of an hour, hour and a half, had
3 scrambled his D8, loaded on a trailer with guys and run
4 it up to Bastrop to help us.
5 Was able to reach Chairman Holt, who got
6 in touch with his regional director here in Austin, Dale
7 Layne. And without hesitation, all of these men -- Dale
8 said, "Let me send a track loader your way to help you
9 fight those fires."
10 I said, "Do you have a water trucks?"
11 And he said, "Carter, it's a bad, bad
12 drought and all of our water trucks have been leased out
13 to farmers and ranchers in the area that need it for
14 their own purposes; but I've got just the guy you need
15 to call and his name is Al Niece and he may be able to
16 help you."
17 And I remember calling Mr. Niece that
18 Monday morning and for him, it must have been a very,
19 very surreal call because he literally was just in the
20 process of unloading his water trucks and tankers. That
21 morning he had driven over to Bastrop. Hauled a truck
22 and a tanker over there, gone to the operation center
23 there, and offered to help fight the fires with his
24 trucks and whoever was dealing with him, you know, said
25 "We don't have any money to pay you."
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
7
1 And he said, "No, you don't understand.
2 I'm here to volunteer. I'm here to help."
3 And they said, "Well, we don't have any
4 money to pay you."
5 And he said, "I'm here to volunteer to
6 help."
7 And after -- went back and forth on that
8 and didn't seem to get message, Mr. Niece had to turn
9 around and he had gone back to Blanco, his ranch, and
10 was unloading his trucks. And I said, "Mr. Niece, if
11 you'll load them back up, I promise you we'll give you a
12 job."
13 And God bless him, he was willing to do
14 it and he and his guys turned around and through the
15 connections of Dale Layne and Jimmy Evans Construction,
16 we were able to also find another D8 and D6 from Jimmy
17 Evans Construction and then Mustang Excavating, the --
18 or Ranger Excavating, the guys that are building the
19 Formula 1 track. And I guess what I want you to know is
20 every single one of these companies and State agencies,
21 when they got that call Monday morning, Labor Day, this
22 was not on their agenda that day let me assure you,
23 nobody hesitated. Everybody said "What can we bring?
24 How can we help?"
25 And it wasn't just for a day. This was
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
8
1 an entire week and in some cases two weeks that these
2 companies lent equipment and operators on the front
3 lines with our guys fighting the wildfires as part of
4 the team and the reason that infrastructure is there is
5 no doubt in big part to their efforts. And so what I
6 would like to ask this morning is to invite
7 representatives from these companies that are here to
8 come forward and ask Chairman Friedkin if you'll come
9 forward here as we provide certificates and I'll call
10 them up.
11 From Niece Equipment, we have Al Niece
12 and Marshall Everett. From the Texas Department of
13 Transportation, we have Toribio Garza and Gilbert
14 Jordan. From HOLT CAT, we have Jonathan Baker, Dale
15 Layne, and Abraham Vallejo. And from Comanche Ranch, we
16 have Mike Thompson.
17 Let's give all these men a great round of
18 applause.
19 (Round of applause)
20 MR. SMITH: If y'all would come forward,
21 we'll get a picture and -- thank you.
22 (Photographs are taken and another round
23 of applause)
24 MR. SMITH: Okay. We're going to now
25 honor some colleagues that are retiring from the Agency
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
9
1 and just have a chance to thank them for their many and
2 selfless years to the State of Texas and this great
3 Department. We're going to start off with one of our
4 colleagues in the Wildlife Division, Johnny Cathey. And
5 Johnny served this Agency as one of our Wildlife
6 Technicians for almost 30 years, 29 years. And he
7 started out as a Wildlife Technician over in Williamson
8 County, worked both then at the Somerville Wildlife
9 Management Area and the Granger Wildlife Management
10 Area. In '87, he was named kind of the day-to-day
11 manager of our Granger Wildlife Management Area and led
12 a very active and busy management program, planning food
13 plots, disking, burning, a lot of habitat management
14 practices, doing research, helping with biological
15 surveys, taking care of fences and roads and trails and
16 vehicles and all of the things that you expect on our
17 wildlife management area and Johnny is very proud that
18 every day at his career at Parks and Wildlife, he helped
19 advance the mission of this Department at the Granger
20 Wildlife Management Area.
21 We're very grateful for Johnny's 29 years
22 of service. Johnny.
23 (Round of applause and photographs)
24 MR. SMITH: Johnny, there's only one
25 condition. You've got to smile.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
10
1 Our Creative Services Division are really
2 the masterminds, the creative capital, the creative
3 talent by -- you know, that lay out all the design and
4 brochures and magazines and publications that this
5 Agency is so well known for. And as you might imagine,
6 there's a bunch of work that goes on behind the scenes
7 to make all of that happen. And today, we're going to
8 recognize one of our colleagues, Carol Otto, who is
9 retired after 22 years of service to this Agency.
10 She started out as a Printing Services
11 Technician and kind of the mastermind behind how to lay
12 out and design publication, a lot of high volume things,
13 helping different divisions inside the Agency get out
14 their publications. She's also helped lead or was our
15 liaison with the Gary Job Corps Internship Program. And
16 so helping these young men, give them a sense of
17 responsibility and a job and helping to provide
18 volunteer hours to this Agency. And I know Carol was
19 very, very proud of all of her work with her boys and
20 she just did an extraordinary job and 22 years with this
21 Agency, Carol Otto. Carol.
22 (Round of applause and photographs)
23 MR. SMITH: I think a number of y'all
24 have had a chance to meet Jerry Warden and most of you
25 know him and his role as the Director of the Texas Youth
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
11
1 Hunting Program. Just an extraordinary partnership that
2 we've had with the Texas Wildlife Association. Jerry
3 has retired with the Agency after 22 years; but
4 thankfully, he's continuing on in that role. He's just
5 working for our partner, the Texas Wildlife Association;
6 so he hasn't gone very far thankfully. Jerry has got a
7 great career. He actually started with us an
8 Engineering Technician in State Parks working out in --
9 out in West Texas. Ultimately, was promoted to our
10 Regional Director out in far West Texas. And then he
11 left the Agency to go serve our country. Went back to
12 the Army where he achieved the rank of Colonel and upon
13 retirement of that, he was hired as the first Executive
14 Director of the Texas Youth Hunting Program.
15 And Jerry has served this program,
16 continues to serve this program very well, and you know
17 worth noting that since its inception and the great
18 leadership that TWA has provided on this and Parks and
19 Wildlife, you know, that program has reached 15,300
20 youth and given them an opportunity to go out and hunt
21 deer and doves and turkey and ducks. They have trained
22 over 1,300 volunteer ambassadors and provided almost
23 50,000 people with some kind of a hunting experience and
24 that program that really Jerry helped build, has now
25 been replicated in Colorado and Florida and Oklahoma and
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
12
1 he's just done on extraordinary job and we're very proud
2 of Jerry's service to this great Agency and very proud
3 of the service that he'll give to TWA going forward. So
4 22 years, Jerry Warden. Jerry.
5 (Round of applause and photographs)
6 MR. SMITH: We're now going to recognize
7 some folks who are not retiring, and I want to make that
8 abundantly clear just so we can banish those thoughts
9 from their minds. Ken Baker, who doesn't know Ken Baker
10 on this Commission? Ken has been with us for 40 years,
11 a game warden's game warden. When he got out of the
12 Academy there at A&M, he was sent down to Edinburg in
13 South Texas and, you know, since then as a couple of our
14 Commissioners can attest he's been our man in South
15 Texas. And Ken has just got wonderful relationships
16 with the ranching community, the law enforcement
17 community.
18 Ken has watched this Agency and his
19 responsibilities change over time. He was there when
20 the Agency acquired its very first tract of land with
21 White-winged dove stamp money to help provide some dove
22 hunting opportunities and protect habitat there, to
23 where we are now in terms of the border operations. And
24 Ken and his team just play an extraordinary role on the
25 coast.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
13
1 Ken was one of the founding members of
2 the Texas Game Warden Association. He's received a
3 number of citations from the Law Enforcement Division,
4 Meritorious Service Award and the Director's Award. He
5 also takes very good care of Pete Flores. I'll tell
6 this story quickly. After my first year here, I noticed
7 that Pete was spending a lot of time in South Texas and
8 he was always talking about what a good host that Ken
9 was and so I decided to go check on this one day and
10 meet Dr. Falcon down there in Los Fresnos. And so we
11 hooked up with Ken and he said, well, I'm going to show
12 you where Pete likes to stay down here and it's the Inn
13 at Chachalaca Bend. And this is just this kind of
14 gentrified bed and burning operation where our Colonel
15 goes to stay.
16 And so Dr. Falcon and I are with Ken and
17 we go down this winding lane through the brush and you
18 come out into this magnificent bed and breakfast and,
19 you know, there are just birds everywhere and people
20 running around with binoculars and we kind of ease
21 around to the back porch and we see the Colonel there
22 sitting there in his bathrobe and he's got -- he's got
23 these binoculars around him and he's prattling on about
24 Yellow-billed cuckoos and Ken kind of taps the Colonel
25 on his shoulder and says, "Colonel, there's some people
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
14
1 to see you."
2 He turns around with his binoculars and
3 he says "Look, there's a Commissioner."
4 Forty years of service for our Captain
5 Ken Baker. So, Ken.
6 (Round of applause and photographs)
7 MR. BAKER: That's quite a story.
8 MR. SMITH: Thanks, Ken.
9 Congratulations.
10 Our next colleague is in Inland
11 Fisheries, Toni Oldfather. And God bless Toni. She's
12 trained a bunch of people inside this Agency and broken
13 them in, including our very own Gene McCarty. Toni
14 started 30 years ago as a secretary and she reminisces,
15 I'm not sure very fondly, about the old days when she
16 had to do shorthand dictation. And so things have
17 changed quite a bit. I think Gary Saul bought her a
18 typewriter now; so thank you, Gary, for helping with
19 that.
20 She has served many Division directors
21 from Bill Rutledge to Larry McKinney, Phil Durocher, and
22 now Gary Saul, whereas she's the budget manager for
23 Inland Fisheries. She broke in Gene McCarty. Helped
24 hold his hand while he was getting his master's degree
25 and working through it and so I think she gets part of
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
15
1 that degree, Gene, from that I hear. But she has just
2 been a great part of the culture of this Agency. She's
3 always smiling and really does an extraordinary job.
4 Thirty years of service, Toni Oldfather. Toni.
5 (Round of applause and photographs)
6 MR. SMITH: Our next colleague is from
7 the upper coast, Commissioner Scott, up in your neck of
8 the woods. Jacob Vidrine is one of our Wildlife
9 Technicians there at the Murphee Wildlife Management
10 Area and started his career there on the marshes there
11 at Sea Rim as a Park Ranger with State Parks and then in
12 '97, since '97, he's been our Senior Fish and Wildlife
13 Technician there at the Wildlife Management Area where
14 he wears multiple hats and very involved in all of the
15 coastal wetlands and habitat management, managing public
16 hunts for waterfowl and alligator.
17 He's also responsible for leasing land
18 for our public dove hunting program. He's our safety
19 officer there. He's certified as an NWCG firefighter,
20 and just really has done a great job representing the
21 WMA. He's had some wonderful milestones over the course
22 of his career. He was very involved with the
23 Sesquicentennial celebration there at San Jacinto
24 Battleground back in '86. Is also -- and you heard a
25 little bit yesterday about the State bison herd at
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
16
1 Caprock Canyon and Jacob was responsible for helping to
2 weld and build those pens where those bison had their
3 start.
4 And so we're really proud of his 25 years
5 of service, so let's welcome him.
6 (Round of applause and photographs)
7 MR. SMITH: Yesterday, we talked about
8 the annual stocking report for Inland and Coastal and in
9 Wildlife. And we just talked about the long and rich
10 history of stocking fish and game in the state and what
11 that's meant in our lands and waters and to our hunters
12 and anglers and you're going to get a chance now to meet
13 one of the guys who's had a major role in that, both on
14 the coastal and inland fisheries side, Jeffrey Bowling.
15 And so Jeffrey has been with us for 20
16 years. Started out as a Technician there at the CPL
17 Marine Development Center there in Corpus helping to
18 rear literally millions and millions of Redfish
19 fingerlings and Spotted Seatrout for stocking. He then
20 transferred to Sea Center in Lake Jackson and was part
21 of that team and that hatchery and that aquarium and
22 that coastal education facility, moved on to Seabrook,
23 and then kind of came full circle back to Tyler there
24 where he's with our management team in Inland Fisheries
25 and responsible for a fisheries management crew that is
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
17
1 responsible for eight counties and over 30 lakes and
2 reservoirs.
3 And we're going to recognize him today
4 for 20 years of service, Jeff Bowling. So, Jeff.
5 (Round of applause and photographs)
6 MR. SMITH: Our next colleague, Irma
7 Gutierrez, works in our Law Enforcement Office there in
8 San Antonio and she's been an important part of that
9 team for 20 years riding herd on the game wardens there.
10 She's one of our Administrative Assistants, known for
11 her customer service. I think she was the first
12 employee in Law Enforcement, Pete, that got the customer
13 service award --
14 UNIDENTIFIED SPEAKER: That's correct.
15 MR. SMITH: -- for the Division agency
16 agencywide. Very, very proud of that. And so on the
17 front lines for us there in San Antonio and we're going
18 to recognize her today for 20 years of service, Irma
19 Gutierrez. Irma, please come forward.
20 (Round of applause and photographs)
21 MR. SMITH: Back in 1993, the National
22 Sporting Clays Association provided funding for this
23 Agency to hire an expert in shooting sports and someone
24 to help create a mobile shooting range that we could
25 take around the state to introduce young people and
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
18
1 families to the joys of the shooting sports. And you
2 met that gentleman yesterday, Charlie Wilson. And you
3 heard Charlie's passion and professionalism for the last
4 20 something years as Charlie has literally roamed the
5 state helping to teach young people how to shoot and
6 introduce them safely to that sport.
7 During his career, he's just forged
8 extraordinary partnerships with 4-H and FFA. He's
9 responsible for creating all kinds of shooting sport's
10 competitions, the Whiz-Bang competition that you heard a
11 little bit about yesterday. They have the competition
12 for the 4-H clubs for different communities around the
13 state. Responsible for creating the clay target
14 shooting course as part of the Ag Science "Wildlife and
15 Recreation Management" course in high school and the new
16 partnership that he's forged with junior high and high
17 school rodeo teams. Again, just been a great
18 ambassador.
19 And so it's very fitting that this year
20 Charlie was inducted into the National Sporting Clays
21 Association Hall of Fame and recognized with the
22 Hill-Adams Service Award. And before we ask him and
23 Michael Hampton, the Executive Director from the
24 Association, to come toward, let's just take a minute
25 and we're going to watch a quick video.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
19
1 (Video played)
2 MR. SMITH: We love Charlie, too. Bravo.
3 Let's celebrate his induction and ask he and Michael to
4 come forward.
5 (Round of applause and photographs)
6 MR. SMITH: You know, each year the
7 Shikar-Safari Club honors a game warden for just their
8 extraordinary service to the country and the state and
9 we could not be more pleased that this year our winner
10 is Michael Hanson. A game warden out of Shelby County,
11 lives there in Center right there on the Texas line, so
12 to speak. When he got out of the game warden academy,
13 he was sent up to Shelby County where he has proudly
14 served the State and the Pineywoods ever since.
15 And, you know, if you look at Michael's
16 personnel file, it just tells you everything you need to
17 know about him and letters of commendation from the --
18 his local historical society for providing information
19 on the history of the game warden service there, a
20 letter from the Navy thanking him for his tireless and
21 tireless leadership during the efforts to recover the
22 Space Shuttle Columbia when it has its tragic fall. You
23 have letters of commendation from local law enforcement
24 officials thanking him for his service, the cattle
25 raisers and so forth. He's just been a great member of
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
20
1 that community.
2 And certainly during his career -- and I
3 can attest to this -- he has been exposed to more than a
4 few very, very difficult situations that he has managed
5 very, very well and in ways that would make you proud
6 and I'll talk about one of those, a letter of
7 commendation that he got recently from Barry Grissom,
8 United States Attorney out of Kansas. And Michael was
9 instrumental in working with Sergeant Brad Chappell from
10 our special operations team, special agents with the
11 U.S. Fish and Wildlife Service in breaking up what is
12 thought to be the largest White-tailed deer poaching
13 ring ever in the history of our country.
14 And a couple of brothers that had gone up
15 to Kansas and set up Camp Lone Star and illegally sold
16 hunts to hunters that were coming in to take Mule deer
17 and White-tail out of season illegally without licenses
18 and then transporting them back and forth across state
19 lines. Ended up over 100 White-tails that were
20 confiscated as a function of this operation and made an
21 extraordinary case on the two brothers operating the
22 guiding service. Both of them doing time in the federal
23 pen, where they have a little opportunity to think about
24 their choices in life.
25 And Michael has just done an
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
21
1 extraordinary job serving this Agency. We could not be
2 more proud to see him get this very, very prestigious
3 award from Shikar-Safari International and Michael is
4 here with his wife and I want to ask him to come
5 forward. I think Eric Stumberg is also with us today
6 from Shikar-Safari. Many of you know Eric. Of course,
7 his father Louis Stumberg, who served on this
8 Commission. So let's congratulate Michael and ask Eric
9 to come forward, too. So, Michael.
10 (Round of applause and photographs)
11 MR. STUMBERG: Just a couple of notes.
12 Shikar-Safari Club International has been really
13 recognizing the feet on the ground that enforce the game
14 laws that keep animals available for hunting and just
15 for enjoyment, the things that are special. We
16 recognize wildlife officers in 50 states, all 50 states,
17 all the Canadian provinces and territories; and it's a
18 peer award. So this is something that we think for
19 Mr. Hanson is really special that he's been recognized
20 by his peers for excellence and so I just wanted to --
21 all too seldom the officers aren't being recognized, so
22 this is really special that we can do it. Thank you for
23 allowing us to participate here in Texas.
24 (Round of applause)
25 MR. SMITH: Thank you, Eric. And
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
22
1 congratulations again, Michael, and congratulations to
2 all of our colleagues that we had a chance to recognize
3 today and again, a special thanks to all of our partners
4 who helped protect Bastrop State Park when it needed it
5 most.
6 So with that, Mr. Chairman and
7 Commission, I'll conclude my presentation. Thank you.
8 COMMISSIONER FRIEDKIN: Thanks,
9 Mr. Smith. Appreciate it. I also just -- I noticed
10 former Chair of the Commission, Katharine Armstrong, is
11 with us. I didn't see you earlier. Welcome. Thank you
12 for being here. I certainly look forward to hearing
13 from you a little bit later.
14 And I also failed to recognize our newest
15 Commissioner and welcome him formally to the Commission,
16 Bill Jones; so we're happy to have you, Bill.
17 COMMISSIONER JONES: Thank you,
18 Mr. Chair.
19 (Round of applause)
20 COMMISSIONER JONES: Thank you,
21 Mr. Chair. It's a pleasure to be here and an honor to
22 serve. For those of you who have not met me, I'm
23 originally from Caldwell, Texas, where I grew up on my
24 dad's ranch where I got an appreciation for wildlife and
25 the wide open spaces of the country where we hunted not
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
23
1 for sport, but to help put food on the table.
2 And just a little warning, I also went to
3 Texas A&M and if Dan and Gene McCarty and I break into
4 loud noises and swaying and doing other things, don't
5 worry about it. It will be over shortly. It's just
6 ritualistic things we have to do as Aggies.
7 I also discovered that my vocabulary has
8 been quite limited. I had just a couple of names that I
9 would call people that disagreed with me. Typically,
10 you know, horse's rear or, you know, mule face or
11 something like that. But I realized after studying my
12 materials for this first meeting, that there are many
13 other things that I could use such as a Rafinesque's
14 Big-eared bat; a Chihuahuan mud turtle; and one of my
15 favorites, Reticulated gecko; or Red-cockaded
16 woodpecker; and my favorite, but it's exclusively for
17 native Texans, a Texas fatmucket.
18 So I'm looking forward to expanding my
19 vocabulary, serving the State of Texas, and working with
20 some very fine people. And if I might add, one of the
21 first things I got to do after I was appointed was to
22 visit the Bastrop State Park. And to see some of the
23 work that the people with this Agency have done and that
24 they were doing, even as we were doing the tour of the
25 park -- for those of you who have not seen the park, it
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
24
1 is -- it is -- the pictures and the video footage that
2 you see on TV can't do it justice. You have to go see
3 it for yourself to see just how devastating it is. And
4 I've made a couple of observations to Carter when I
5 visited. I said, you know, it was devastating, the
6 people there were tired, I could tell they were tired;
7 but nobody was complaining. They were just figuring out
8 what to do next. And I knew then that this was a very
9 special Agency with very special people in it and I look
10 forward to working with you.
11 COMMISSIONER FRIEDKIN: Thank you, Bill.
12 We look forward to working with you.
13 (Round of applause)
14 COMMISSIONER FRIEDKIN: And now we know
15 we have one who reads all of the fine print. Like I
16 thought it -- I thought it was just Commissioner
17 Duggins, but welcome.
18 Okay, at this time I would like to inform
19 the audience that everyone is welcome to stay for the
20 remainder of the meeting. However, if anyone wishes to
21 leave, now would be an appropriate time to do so. Thank
22 you all for being here. Appreciate it.
23 (Recess taken)
24 COMMISSIONER FRIEDKIN: Okay. So first
25 order of business is Action Item No. 1, approval of the
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
25
1 agenda. Do we have a motion for approval?
2 COMMISSIONER FALCON: So moved.
3 COMMISSIONER FRIEDKIN: Commissioner
4 Falcon. Second by Commissioner Morian. All in favor?
5 (A chorus of ayes)
6 COMMISSIONER FRIEDKIN: Any opposed?
7 Hearing none, motion carries.
8 Action Item 2, election of a new
9 Vice-Chair. Do we have any nominations?
10 COMMISSIONER FALCON: I have a
11 nomination. I would like to nominate Commissioner Ralph
12 Duggins to serve as Vice-Chair of this Commission.
13 Commissioner Duggins has been on the Commission now
14 since 2008. He has worked very hard, tirelessly for the
15 Commission. He's meticulous in his work, and and I
16 think he would be a great asset to the Commission to
17 have him as Vice-Chair if he would accept the
18 nomination.
19 COMMISSIONER FRIEDKIN: Thank you,
20 Commissioner Falcon. Do we have a second? Seconded by
21 Commissioner Hughes. All in favor?
22 (A chorus of ayes)
23 COMMISSIONER FRIEDKIN: Any opposed?
24 Hearing none, motion carries.
25 COMMISSIONER DUGGINS: I'd be happy to.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
26
1 (Round of applause)
2 COMMISSIONER FRIEDKIN: I guess we didn't
3 ask you, Ralph; but we're certainly very excited about
4 it and looking forward to working together.
5 COMMISSIONER DUGGINS: Thank you for this
6 honor. I look forward to working -- continuing to work
7 with this fabulous group of people.
8 COMMISSIONER FRIEDKIN: Thank you.
9 Briefing Item 3, Taking Care of Texas. I think, Carter
10 Smith, you're going to start this one out; is that
11 right?
12 MR. SMITH: I'm going to introduce some
13 folks.
14 COMMISSIONER FRIEDKIN: Excellent,
15 excellent.
16 MR. SMITH: So, Mr. Chairman, members of
17 the Commission, for the record, my name is Carter Smith
18 and it's my great privilege today to introduce to all of
19 you two ladies and leaders and ranchers and hunters and
20 conservationists that all of you know well, former Parks
21 and Wildlife Chair Katharine Armstrong and Tina Buford.
22 Katharine and Tina have been very
23 involved in helping to create a new organization called
24 Taking Care of Texas. And this is an organization that
25 they help found with former First Lady Laura Bush and I
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
27
1 think it's one of those great rays of sunshine looking
2 forward in terms of an organization that is carrying a
3 very positive message about stewardship, private lands,
4 conservation, and how all stakeholders can work together
5 to help protect the very, very special places and
6 treasures in our state. And so Katharine and Tina are
7 going to talk a little bit about this initiative today
8 and talk about a partnership with Parks and Wildlife.
9 So let's welcome them.
10 (Round of applause)
11 MS. ARMSTRONG: Chairman Friedkin,
12 honorable Commissioners, it's a pleasure to be here
13 today. As a former Chairman of the Texas Parks and
14 Wildlife Commission, a private landowner, a fifth
15 generation Texan, I appreciate the commitment of Texas
16 Parks and Wildlife Department and its Commissioners to
17 taking care of our State's land, water, and wildlife,
18 and the recreational opportunities that connect all
19 Texans with the outdoors.
20 Most importantly, I appreciate your
21 commitment to private landowners and to the vital role
22 they play in conservation. It's an honor to be here on
23 the other side of the podium -- and by the way,
24 congratulations, Ralph -- to tell you about one such
25 dedicated private landowner and her inspiring vision for
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
28
1 taking care of Texas, my friend and our former First
2 Lady from Texas, Laura Bush.
3 Mrs. Bush, along with a board of
4 scientific experts, private landowners, and
5 conservationists, and business people as well, has
6 recently founded an initiative called Taking Care of
7 Texas. I am joined today by two of our board members.
8 Our Vice-Chairman, Regan Gammon --
9 MS. GAMMON: Good morning.
10 MS. ARMSTRONG: -- is the former Chairman
11 of the National Parks and Wildlife Foundation and a
12 close personal friend of Laura Bush's. Whitney Marion
13 is our program manager and will be running the
14 day-to-day affairs of Taking Care of Texas, and Tina
15 Buford, who will speak with you in a minute and who you
16 know well.
17 Our mission is to spur conservation
18 efforts that benefit communities, build on the success
19 of others, and inspire all Texans to join in. Our
20 vision is for Texas to be the state dome for the best
21 practical, scientific, and citizen led innovations in
22 conservation. Credibility, cooperation, and
23 collaboration are our underpinning values.
24 There are people and organizations that
25 feel right now, as you well know, working together to
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
29
1 care for our State's land, water, and wildlife and we
2 want to build on their good work. A good example are
3 the many Lone Star land stewards who are partnering with
4 State agencies, their neighbors, and local schools to
5 improve habitat, watershed -- watersheds and outdoor
6 education opportunity for our children.
7 We revere conservation literacy,
8 especially among children and youth. Projects like the
9 TWA Conservation Lands Program and so many Parks and
10 Wildlife programs which have taught thousands of
11 students about our State's resources will have a vital
12 impact on our State's future. Taking Care of Texas
13 celebrates the conservation heros who have created and
14 supported great projects. We are committed to spreading
15 knowledge of established conservation successes so that
16 they can be replicated elsewhere.
17 We are not looking to reinvent the wheel.
18 We want to leverage the wheel, and increase its
19 benefits. As our logo suggests, our strategy is to
20 communicate, catalyze, and connect. We will communicate
21 the value of our natural landscapes and ways to care for
22 them in rural and urban settings. We will showcase
23 these effective projects in a major conference in 2013.
24 We will catalyze additional conservation success stories
25 based on proven practices, transforming challenges into
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
30
1 opportunities that produce measurable outcomes that are
2 great for the land and great for the economy.
3 We will connect natural resource users,
4 science based experts, and financial supporters to
5 implement practical, innovative solutions that not only
6 solve a problem but also lay the groundwork for
7 continuing partnerships. Our strategy will have
8 tangible benefits for people, nature, and our economy.
9 Texas Parks and Wildlife Department has been a vital
10 partner in so many successes we are proud of in Texas.
11 We know you will continue your good work and ask you to
12 partner with us in this endeavor. I thank you for your
13 time, and I appreciate being here. It's a wonderful and
14 warm occasion for me to be back here and you all are
15 doing such a great job.
16 With that, I want to turn it over to Tina
17 Buford. Thank you.
18 MS. BUFORD: Thank you, Katharine.
19 Chairman Friedkin and honorable Commissioners, thank you
20 for the opportunity to be here today to tell you more
21 about Taking Care of Texas and why it is an important
22 partner to Texas Parks and Wildlife Department.
23 The reason why I joined Taking Care of
24 Texas is simple. Taking Care of Texas was a natural
25 extension of my involvement in Texas Wildlife
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
31
1 Association because I saw the alignment in their
2 founding principals -- collaboration, supporting private
3 land stewardship, and promoting natural resource
4 literacy. I know that Texas Parks and Wildlife is
5 well-known for upholding these principals.
6 As you all pledge to uphold the mission
7 of Texas Parks and Wildlife, we think that a partnership
8 with Taking Care of Texas is a natural fit. Together we
9 can build relationships between people, communities, and
10 corporations who rely on natural resources and people
11 who have the know-how to steward those resources.
12 Together we can provide information, introduction, and
13 ties to those to -- invested in the land and its
14 conservation. We can help you.
15 By adding to your efforts, we hope to
16 make the private sector in conversation at least as
17 well-known in Texas as government sponsored efforts.
18 Government's role is necessary, but private initiative
19 is critical. Especially as budgets are being tightened
20 in many State agencies, we see our role as an
21 additive -- not a substitute -- to the work of the
22 government and nongovernment organizations. Like
23 Katharine said in her remarks, we want to build on other
24 good work of others.
25 The character of the land plays a vital
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
32
1 role in our personal histories. The creek that's a
2 favorite fishing hole, the ancient live oak that shades
3 picnickers and livestock, and the hill where a
4 heart-stopping view comes -- a heart-stopping vista
5 comes into view. By introducing land users to
6 conservation experts, each party can exchange knowledge
7 for shared benefits that endure forever.
8 I believe Texans are can-do people. We
9 care about our natural resources and recognize their
10 abundant benefits. When given the right knowledge and
11 expertise, everyone can help take care of Texas. I am
12 proud to be a part of this organization and,
13 Commissioners, I hope that you will partner with us in
14 this endeavor. Thank you for your time, and thank you
15 for taking care of Texas.
16 COMMISSIONER FRIEDKIN: Thank you both
17 very much. Appreciate it. I think, Tina, what you just
18 said about leveraging, the Department leveraging private
19 initiative is very important. I know it's a focus of
20 this Commission and we'll certainly take that into
21 consideration and look forward to learning more about
22 your organization. I know we have the opportunity to
23 meet a little bit later today, so I'm certainly looking
24 forward to that and appreciate your time. Thanks.
25 MS. BUFORD: Thank you.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
33
1 COMMISSIONER FRIEDKIN: Briefing Item 4,
2 September 2011, Bastrop complex wildfires. I think
3 we're starting out with Brent Leisure. Brent, how are
4 you?
5 MR. LEISURE: I'm doing well, Chairman.
6 Thank you, Commissioners. Brent Leisure, Director of
7 State Parks. Once again, we're here to provide a
8 briefing on the catastrophic fire that we've all heard
9 so much about and I just want to introduce a few people
10 that are -- that I'm particularly proud of and I know
11 that you are as well.
12 Bastrop State Park is an iconic park
13 within our system, dating back to the Civilian
14 Conservation Corps development period. And as a matter
15 of fact, it was recognized as a national historic
16 landmark back in 1997 as one of the finest examples of
17 public works' projects throughout the nation. One of
18 only six state parks across the country to have that
19 distinguished designation.
20 And the events that took place on Labor
21 Day weekend were certainly catastrophic. It has changed
22 the landscape in a remarkable way, but I have the
23 distinct privilege to be able to introduce some of my
24 colleagues that truly were heros in the way they
25 responded. This was an Agency wide effort in both State
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
34
1 Parks and Wildlife Division firefighting staff that
2 responded to this fire.
3 And, Carter, it was fitting and
4 appropriate to recognize the people that donated their
5 equipment and time to help us in this effort. But I
6 think it's also fitting and appropriate to recognize you
7 and this Board and our leadership within this Agency
8 because immediately and without hesitation, you stepped
9 forward to provide relief to the employees that were
10 affected, I received calls, I learned of your personal
11 contributions and your reaching out to communities all
12 across this state and individuals to help lend their
13 support and I thank you and on behalf of all the State
14 Park employees, the Parks and Wildlife employees that
15 were affected by that, we thank you very much.
16 So Jeff Creacy -- excuse me. Jeff Sparks
17 and Greg Creacy are going to come forward and give us a
18 briefing and let us know what transpired on this day and
19 what it looks like looking forward for us and what steps
20 we might take to recover this very special place. Jeff
21 is the Director of our Fire Program in State Parks and
22 does a very -- he does an outstanding job and very
23 capable. And Greg Creacy is a biologist working in
24 State Parks. He's also our regional fire coordinator.
25 And these two guys were on the fire line and getting it
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
35
1 done. So, Jeff, Greg.
2 MR. SPARKS: Good morning, Commissioners
3 and Chairman. I'm going to go through today this
4 morning kind of what it was like on September 4th when
5 we had the wildfire come through the park. The fire
6 started September 4th, about 1400 hours or 2:00 p.m. in
7 the afternoon and quickly raced about eight miles that
8 day reaching the Colorado river by that night. The fire
9 actually burned for nearly a month and was fully
10 contained on October 9th or declared fully contained on
11 October 9th.
12 During this time period, it burned 33,500
13 acres and destroyed more than 1,600 homes. This was --
14 the fire was actually caused by two downed power lines.
15 Two fires started that simultaneously burned into each
16 other. And high winds and extremely dry fuel loads
17 allowed these fires to burn at rates of spread or at
18 speeds and an intensity that has never been seen in this
19 area.
20 Extreme conditions statewide and multiple
21 starts on the same day because there were extremely
22 windy conditions, caused a lack of resources to actually
23 respond to the fires. So local resources were all that
24 were available on the first day, and even on the second
25 day of the fire. As Mr. Smith mentioned in his --
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
36
1 earlier this morning, when we arrived on the 4th and
2 then on the morning of the 5th, we could realize we were
3 not equipped to stop the fire within the wildland
4 environment and we were just going to have to protect
5 the buildings and infrastructure of the park. Most of
6 which were of national historic significance.
7 So at that point, we began working on
8 that and we were actually very successful. We were able
9 to save all the infrastructure in the park except for
10 two scenic overlooks that were more in the wildland
11 environment along trails that we just could not access.
12 Our elements of success were based on three items and if
13 any of these would have not fallen into place, our
14 success -- we would not have been successful.
15 First of all, the timing of approaching
16 fire front. On Day 1 on September 4th, the fire
17 actually did race all the way through the park, actually
18 starting in strength about three miles outside the park
19 to the north, it raced all the way through the park, and
20 exited the park on the south end and actually on that
21 day, burned the -- or caused some destruction to our
22 regional office complex there. It jumped Highway 71,
23 and ran all the way to the river. But the timing of
24 that, which I'll show in the next slide, allowed us to
25 prep our structures.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
37
1 Second of all, the fact that we have
2 trained and qualified staff now that we've been training
3 for the -- in both the Wildlife and State Park divisions
4 for the last five to six years following NWCG training
5 standards, we had the equipment and the training to
6 quickly respond to these fires. And then we had
7 equipment and operators loaned to us by TxDOT and other
8 private individuals, which we honored them this morning.
9 You can see on the slide here, this is
10 the fire perimeter of the actual fire and you can see
11 the origins of the fire on your computer screens. When
12 we -- on the morning of the 5th, the orange line that
13 you see stretched through there is about where the
14 fire -- the western boundary of the fire line was. So
15 at this point, it had not encroached within but about a
16 half a mile from our park infrastructure and it was what
17 we called a flank fire. So it was not racing. It was
18 more moving at just a steady pace, but it had flat fire
19 line intensity and flame lengths that exceeded what we
20 could actually control with hand tools.
21 Also at this time, the emphasis for the
22 whole incident was actually protect structures and
23 protect residences, houses; so there was no direct
24 attack going on on the fire line. As the day went on
25 and the temperatures heated that day and the winds
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
38
1 picked up, the fire did come closer to the structure and
2 sunset you can see is the red line, that is where our --
3 that's where the fire was at sunset on the 5th.
4 It still had not gotten up to our park
5 infrastructure yet, but it had gotten very close. And
6 this provided us more than 12 hours of time to prep our
7 buildings and infrastructure, remove all fuels away from
8 anything, remove any debris that might be flammable, and
9 begin wetting roofs. So with our trained firefighters,
10 we were able to establish hose lays and that is we were
11 able to put pumps near the lake and pump water up to the
12 cabin areas, wrap the cabins in hoses that we've been
13 trained for by following NWCG training, and be prepared
14 for the oncoming fire front.
15 We had 55 firefighters that participated
16 in these suppression efforts, both from the Wildlife and
17 State Park divisions and we had 85 non-firefighters that
18 served as Peace Officers for us, logistics, command
19 staff, and support staff. No firefighter had to leave
20 their duty station to go get anything. They would just
21 call on their radio what they needed and these
22 non-firefighters would actually bring that to them and
23 that was a great help.
24 So during this time, we were able to,
25 like I said, clean all the debris around these
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
39
1 structures, we were able to start wetting down all the
2 roofs, and we spent literally 12 hours that Monday doing
3 nothing but wetting these wooden shake roofs, which
4 wooden shake roofs are extremely flammable and it just
5 takes one little spark. But what we -- what the goal
6 was, was to try to make these roofs as least receptible
7 to fire brands if possible.
8 So we did this with our staff and our
9 engines and the water we had available and then that
10 afternoon, we started getting the loaned equipment to us
11 and this was -- this was instrumental in saving these
12 buildings. We received four or five of these
13 construction type water tenders that were able to squirt
14 water to the sides and they could quickly go refill
15 because they brought a water tower station to put in our
16 maintenance area. They would pull up to these buildings
17 and they would hose a building down and then they would
18 go to the next one and hose it down. And they did this
19 all of Monday. They did it all again on Tuesday for us,
20 actually, when the battle actually was in the cabin area
21 on Tuesday.
22 So we also received some dozers and track
23 loaders, which we used to create a firebreak around the
24 facilities. Knowing that it was not going to stop the
25 fire with the fire intensity we were seeing, but it
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
40
1 would slow it down enough for our firefighters to have a
2 little bit of breathing room to put out any spots that
3 actually came over. So the loaning of that equipment
4 from Niece, Ranger Excavating, TxDOT, Jimmy Evans, and
5 Comanche Ranch and HOLT CAT, were very instrumental in
6 the protection of all this park infrastructure.
7 And I guess with that said, I'll give it
8 over to Greg to talk about post severity and where we're
9 moving forward.
10 MR. CREACY: Thanks, Jeff. Mr. Chairman,
11 Commissioners -- is it this one? All right. Okay. So
12 about a week after the fire was under control -- well,
13 within the park that is -- we had 40 long-term
14 vegetation monitoring plots that are in the park and we
15 used those to monitor and adapt our management in the
16 park after we do any kind of management activities.
17 We resampled those 40 vegetation plots
18 and used a national standardized method to estimate burn
19 severity and then we mapped the entire park based on the
20 data we collected on those vegetation plots. So what
21 you see in front of you, the red areas are the areas
22 that were burned most intensely. The red areas on your
23 map, those areas -- and I'll show you a photo coming up
24 next -- consumed pretty much all of the organic material
25 above the ground. The only thing left is just the major
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
41
1 tree trunks and larger branches.
2 You get into the orange, it's a little
3 less severe and to the yellow and a little less severe
4 than that and we have a couple of areas that weren't
5 burned much for a couple of different reasons. Either
6 they were along Alum Creek in the bottomland hardwood
7 areas that do not burn very intensively or they were
8 recently treated with prescribed fires, which really
9 lessened the severity of the fire.
10 This is an example of what a heavily
11 burned area looks like in the park. About a third of
12 the park looks like this now. This is a photo taken at
13 one of our long-term vegetation monitoring plots
14 pre-fire and post-fire. As I said, most all the organic
15 material was consumed, both ground litter and above
16 ground vegetation. Moderately burned is the next
17 category down. Usually when you're looking at this
18 burned severity classification system, in most cases you
19 get a nice well-defined -- the heavily burned, you know,
20 100 percent mortality on your trees and then you go down
21 75 percent for moderate, 50 percent, you know, and so on
22 and so forth.
23 We have been in such a prolonged drought
24 and our habitats were so stressed already, what we see
25 is tree mortality is really skewed. Even in our
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
42
1 moderately burned category, we lost about 95 percent of
2 the trees. We lost 100 percent in the heavily burned,
3 95 percent in the moderately burned. Even in the
4 lightly burned, we lost 80 percent of our timber. So
5 the fire effects were magnified by our drought.
6 Here is an example of lightly burned.
7 You'll notice that it did not consume, you know, all of
8 the vegetation, all the leaves on the trees and whatnot;
9 but it did consume pretty much everything on the ground.
10 It did kill most of the timber anyway, even though the
11 intensities were quite a bit less. And about 15 percent
12 of the park, again along our Riparian areas and some of
13 the areas that were recently treated with prescribed
14 fire, this is what it looked like. A meandering fire
15 that didn't even consume all of the litter on the ground
16 and had very little impact on the overstory. Killed
17 about 15 percent of the timber.
18 COMMISSIONER FRIEDKIN: Excuse me. Is
19 that due to the intensity of the fire in this particular
20 area, or due to the prescribed burning that was
21 conducted prior to the fire?
22 MR. CREACY: That is due to the intensity
23 of the fire. The intensity of the fire was much less in
24 what we're calling this scorched category. But the
25 reason the fire intensity was less was because there
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
43
1 wasn't as much fuel on the ground to support --
2 COMMISSIONER FRIEDKIN: Sure, yes.
3 MR. CREACY: -- the fire. That's because
4 of our previous prescribed fire treatments. So we've
5 got two categories right now that we're involved in.
6 We've kind of divided them up into our short-term
7 immediate restoration management and then we have
8 long-term response efforts.
9 We have a contract that's already in
10 place for commercial timber salvage. That should start
11 on Monday. We are not salvaging timber on the entire
12 park. We just chose a few locations. It's also an
13 incredible research opportunity, which I'll talk about
14 in just a second. We'll be comparing logged versus
15 unlogged areas, and how our habitats respond to that.
16 We've also got quite a bit of work to do to remove all
17 of the dead trees adjacent to roads, near structures,
18 hiking trails, our boundary lines, our fences; and so
19 it's an incredible amount of work.
20 Not all of that timber will be salvaged.
21 Some of it will just be cut and left laying. The
22 approximate cost of these operations is $680,000. There
23 will be some revenue generated from the commercial
24 timber salvage; but that's very, very small compared to
25 the costs that are associated with removing all of the
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
44
1 dead trees from adjacent to the roadways.
2 The other project that is rather urgent,
3 it's a short-term immediate need, is erosion mitigation.
4 Not all areas are going to require active mitigation.
5 Pretty much, we're looking at areas with steep slopes,
6 slopes greater than 15 percent, areas that were heavily
7 burned in that most intense category, and areas that did
8 not have any grasses, any herbaceous vegetation on them
9 before. They had a closed tree canopy and they were in
10 the shade, so there was no grasses. If you have those
11 three conditions, we're facing the potential of extreme
12 erosion. So we're looking at everything from straw
13 waddles and straw logs to slow down sheet flow, some
14 hydro mulching and check dams and various strategies to
15 minimize erosion.
16 The outlook for the Houston toad is
17 tentative, at best. Most of the toads we believe and
18 from the data so far survived the fire. They were
19 buried underneath the ground at the time of the fire,
20 but the habitat is not going to be very suitable when
21 they do emerge. We've lost 41 percent of the suitable
22 habitat in Bastrop County, so it's another hard hit to
23 our Houston toad. With that being said, we're not
24 throwing our hands up in the air.
25 We've got several plans to try and
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
45
1 increase the suitability of our remaining burned
2 habitat, and we've got an upcoming volunteer work
3 weekend in two or three weekends to get a lot people out
4 on the grounds spreading mulch and building brush piles
5 and other things to make the habitat more suitable when
6 the toads do come out hopefully this winter.
7 Long-term post-fire management, we've got
8 a lot of research opportunities. We are already talking
9 to several universities and our in-house scientists and
10 biologists and putting together plans for research,
11 habitat and wildlife response to the fire, all of our
12 plans for restoration and re-vegetation, we'll rack
13 quite a bit of research into that. So we're excited
14 about those opportunities. That will take money as
15 well. The long-term habitat restoration will -- the
16 figure you see there, 2.2 million, the long-term habitat
17 restoration is the bulk of that. The research is a
18 small portion of that.
19 But the areas were so intensely burned
20 and the condition of the habitat before the fire, it's
21 going to require active management. We're going to have
22 to actually get in there and replant and do some civil
23 cultural management to restore our pine forest. Thank
24 you, that's all I have.
25 COMMISSIONER FRIEDKIN: Appreciate it.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
46
1 Thank you very much and I thank all three of you for
2 your leadership through this. It's just been
3 tremendous, and it's a great example of what makes this
4 state great. So thank you and please convey our
5 appreciation, the Commission's appreciation, to your to
6 teams in Bastrop.
7 What have we -- we take away from this --
8 what have we learned about prescribed burns? Obviously,
9 this was a fuel intensity and, you know, an extreme
10 situation and I'm sure -- I'm assuming that prescribed
11 burning can't cover every scenario. But, you know,
12 how -- and Bastrop particularly, how much of the
13 prescribed burning that was conducted before was -- you
14 know, how much of that is sort of -- did we do an
15 adequate job of prescribed burning? You know, is there
16 an extreme amount where it just becomes, you know,
17 inefficient and we can't plan for these outlier events
18 and what can we learn from it in terms of prescribed
19 burning and how could we as a Commission translate that
20 into a State plan?
21 MR. SPARKS: You go ahead. You know
22 Bastrop more.
23 MR. CREACY: First of all, we -- the
24 Bastrop State Park, we had had an active fire management
25 program there for the past ten years. We were making
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
47
1 lots of progress. We were very pleased with our
2 direction. That being said, restoring those forests to
3 their historic condition after 80 years of fire
4 suppression is a very long-term endeavor and we were
5 nowhere near where we needed to be.
6 We had reduced fuel loads. We had -- we
7 were starting to restore the forest structure with less
8 trees and more grass and less brush, but we were still
9 probably 20 years away from reaching that end goal; so
10 we still had excessive fuel loads that supported a
11 pretty intense fire. What we did see is that in areas
12 that had been treated with prescribed fire -- we had
13 control areas in the park that we had never burned, and
14 then we had areas that we had burned. We saw dramatic
15 differences in fire intensities. Particularly if those
16 areas had been treated with prescribed fire in the last
17 12 months, dramatic decreases in the fire intensity that
18 came through.
19 With that being said, it was still such
20 an intense fire due to long-term drought, due to the
21 weather we had for that couple of days, and the momentum
22 that that fire had, the treatments on the ground,
23 they -- the fire intensity was still at a point where
24 you could not get out in front of it and stop it, but
25 there are lessons to be had. We can demonstrate with
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
48
1 our data that our prescribed fires made a difference.
2 It's very obvious when you look at the
3 aerial photos, and I believe there is a message there
4 that we can use. We're already really talking about the
5 importance of prescribed fire as a management tool to
6 benefit wildlife habitat and to restore that, but also
7 as a tool to reduce -- to mitigate, you know, these
8 dangerous accumulations of wildland fuels. We had that
9 example at Bastrop and so while it was still a
10 destructive fire and there was so little we could do
11 about it, we can demonstrate that at Bastrop I feel.
12 COMMISSIONER FRIEDKIN: Good, thank you.
13 MR. LEISURE: I would just like to add
14 one thing to what Greg said. State Parks, like wildlife
15 management areas, are great opportunities to showcase
16 our environment, our natural world to Texans as
17 demonstration areas. And there's tremendous opportunity
18 here moving forward for us to be able to articulate the
19 messages, the benefits of fire, the principals of fire
20 ecology, and the implementation of prescribed fire on
21 the landscape and what a difference it makes in reaching
22 some of our goals in fuel reduction, the risk to
23 catastrophic fire, and increasing biodiversity and
24 things like that.
25 So that is certainly in our plans and
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
49
1 what we hope to do moving forward. And my expectation
2 is and hope is that we're going to utilize Bastrop State
3 Park as a demonstration area to help convey that
4 message.
5 COMMISSIONER FRIEDKIN: Very well.
6 Appreciate all your efforts. I do -- Carter, do you
7 have something on that? I do think it would be helpful
8 for the Commission if we could -- I know we've had this
9 discussion before, and I may be remiss. Perhaps I've
10 seen the plan recently. But it would be helpful to come
11 up with a statewide integrated plan on prescribed burns
12 and further educate the Commission, you know, in the
13 next couple of meetings if we can.
14 MR. SMITH: Yeah, we can certainly do
15 that, Chairman. And I just build on what they said.
16 You know, after the State has endured almost 4 million
17 acres that have burned and then the catastrophic
18 experience at Bastrop, the natural reaction for most
19 citizens is to be scared of fire.
20 COMMISSIONER FRIEDKIN: Sure.
21 MR. SMITH: And so what we don't want is
22 a backlash against prescribed fire out of concern.
23 COMMISSIONER FRIEDKIN: Yes.
24 MR. SMITH: And so where the Commission
25 can play a leadership role is helping to advance that in
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
50
1 message and policy. Two days ago at the Senate hearing
2 on drought and wildfire, Parks and Wildlife, Department
3 of Agriculture, and Texas Forest Service carried that
4 message strongly and I think that is a real important
5 leadership role the Commission can help us with to try
6 to make prescribed fire safe prescribed fire easier
7 rather than harder and there may be some things ahead of
8 us that we can do. So we can --
9 COMMISSIONER FRIEDKIN: I think that's a
10 very good point. If we could come up with sort of a --
11 sort of, you know, a summary list, a one-sheet summary.
12 You know, just major points that we could use I think as
13 ambassadors for that message, it would be very helpful.
14 So that's a good plan. Good, thank you so much.
15 Appreciate it. Thanks for all your efforts.
16 Excuse me, Vice-Chairman Duggins.
17 COMMISSIONER DUGGINS: Jeff or somebody,
18 I would like to know a little bit more about the power
19 line that started the fire. I'm thinking about a
20 possible lawsuit, that sort of thing.
21 MR. SPARKS: The Texas Forest Service did
22 do a report actually on that, and I believe it's on
23 their website. It was a secondary power line, I
24 believe; and I'm not sure which company it actually was
25 that operated that power line.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
51
1 COMMISSIONER DUGGINS: But have we -- are
2 we exploring -- maybe this a question better suited for
3 you, Ann. But it seems to me that -- I was involved in
4 a lawsuit a year or so ago that was brought by a large
5 ranch in North Texas against an oil operator where a
6 power line had started a -- allegedly started a huge
7 fire. And I'm just wondering if given the amount of
8 economic loss that we've suffered and the amount of
9 money we're going to have to spend, I think we ought to
10 at least explore whether there are claims that should be
11 considered in respect to the power line.
12 MR. SMITH: Commissioner, I guess I'll
13 answer that. We have not done that to date, you know,
14 and I think that as we have learned more about this and
15 just those very, very heavy intense winds that ended up
16 blowing those power lines into the trees that ultimately
17 started the fire and one of the things we've learned
18 from the Texas Forest Service, the measurements of trees
19 before that fire around the state and particularly in
20 this area looking at live fuel moisture, were the
21 lowest -- the live fuel moisture -- the lowest they have
22 ever seen a tree in the state and still be alive.
23 And so it literally was kind of the
24 perfect storm. I'm not sure that as that investigation
25 has gone on trying to find the source of it, that
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
52
1 there's been any culpability per se; but just
2 unfortunately a result of those really, really bad
3 storms. And so we haven't looked into that and there's
4 been so much damage in the community as a whole, that
5 we've focused more just with working everybody on the
6 restoration and clean up.
7 COMMISSIONER DUGGINS: Well, I'm not
8 suggesting that we sue anybody. I'm just suggesting
9 that we look into it. And I realize that the result was
10 exacerbated by the conditions, but you still could have
11 a potential claim that I think we ought to at least
12 analyze.
13 MR. SMITH: Understood.
14 COMMISSIONER FRIEDKIN: Thank you.
15 Briefing Item No. 5 is License Buyback Program, Robin
16 Riechers. Good morning, Robin.
17 MR. RIECHERS: Good morning, Chairman,
18 Commissioners. For the record, my name is Robin
19 Riechers. I'm Director of Coastal Fisheries. As
20 indicated, I'm here to present to you a briefing
21 regarding the License Buyback Programs that we have for
22 inshore shrimp, crabs, and the finfish fishery that we
23 have.
24 When we established these programs, there
25 were some short-term goals and long-term goals and I'm
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
53
1 going to briefly cover those. Obviously, short-term
2 goal was to use the voluntary buyback program to reduce
3 the number of overall license holders. And then the
4 second part is an important one here. We had basically
5 too many fishermen chasing too few fish and the notion
6 was to reduce those licenses through time. We could
7 have done the effort control with traditional management
8 measures -- bag limits, seasonal time, time in the area,
9 and closures. But through a buyback program, you can do
10 that with a slower approach and basically minimize your
11 social and economic disruption to those local
12 communities who were so dependent on that on the Gulf
13 Coast region of Texas.
14 Obviously then the long-term goals again,
15 once again, is to reduce the overall fishing effort. We
16 would hope that would then stabilize the fishery and
17 raise the income levels to those -- and profits to those
18 fishermen. Meaning basically that their catch per level
19 of effort goes up. Their catch per hour fished goes up.
20 And then lastly in addition to the resource conservation
21 of the selected species that you were managing for
22 shrimp, crabs, or the finfish species, Black Drum and
23 flounder -- you also would receive resource conservation
24 benefits through less dragging, through less disturbance
25 of the bottom, and through bycatch organisms. So
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
54
1 overall, you get kind of an ecosystem effect or
2 ecosystem management effect as well.
3 With that, basically these buyback
4 programs were all established in the context of the
5 limited entry programs that went into effect. Bay and
6 bait license, ensure shrimp licenses went into effect in
7 1995. We followed that up in the next session in 1997
8 with crab, and then we did -- we did the finfish limited
9 entry program in 1999. All of them had a voluntary
10 buyback component to that whole program.
11 When we established the programs and the
12 buybacks, we looked around the country at different
13 programs that would have some sort of auction or reverse
14 auction, reverse bid type of system. Frankly, there
15 weren't a lot. There were some overseas going on, and
16 we settled in on a reverse bid type procedure.
17 Basically, they give us a bid. We rank those bids based
18 on both the value of the bid and compare that against
19 what we would estimate the value of that license is and
20 the way we would estimate the value of that license is
21 based on what we would call fishing power and length of
22 vessel as a proxy for that and then also the license
23 tenure.
24 When we started those programs, we didn't
25 want to reward speculators. Captains who have been in
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
55
1 it longer, typically know the fishery better and can
2 fish and catch more and so we wanted to reward those
3 people who had more tenure and who didn't just buy the
4 license the year before.
5 So now catching you up to kind of where
6 we are to date in all three of these programs. With the
7 Inshore Bay and Bait License Program, we've had 28
8 rounds. We typically hold a fall and a spring round.
9 We've purchased a little over 2,000 licenses. That is
10 65 percent of the original licenses that we had when we
11 started the program. The average price in the very last
12 round was about $8,700. Our average price over all of
13 the rounds were $6,600. And I can tell you the very
14 first round, we bought 30 licenses and the average price
15 was about $3,300. So you can see that gradual increase
16 through time. Obviously, the value of those licenses go
17 up as we pull more of them out of the system.
18 When you look at this, this is kind of an
19 annual total. Obviously as indicated, we have a spring
20 and fall round; so those are combined. What you can see
21 by this slide, we started this program with a surcharge
22 on licenses who handled shrimp, raised about $170,000 a
23 year, and so they were part and parcel to this, the
24 industry itself. And you'll see in that very first
25 round, you know, we spent a little over $50,000 there --
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
56
1 I'm sorry, bought a little over 50 licenses in that
2 first year.
3 In about 1998, we received a $1.4 million
4 disaster relief grant. You can see us kind of flow
5 through that with the first little peak there. And then
6 in 2000 is when we approved or y'all approved a $3
7 surcharge to the recreational saltwater stamp and that
8 then allowed us that funding stream you see basically
9 there from about 2002 to 2007. And then at that point,
10 the funding stream is still there; but our overall
11 license application started to die down basically.
12 People -- we had reached a point where we stabilized the
13 fishery and people aren't as willing to sell out at this
14 point in time. Today, we now have 416 Bay Licenses and
15 403 Bait Licenses.
16 We update you on the Crab License buyback
17 summary at this point. We've held 14 rounds to date.
18 We've purchased 51 licenses. That's 18 percent of the
19 original license. Our average price in the last round
20 was $9,700. And we've spent a little over $300,000
21 total. This fishery is the fishery where we received
22 the fewest applications. It was the fewest number we
23 started with and up until recently, we might receive
24 somewhere in the neighborhood of five to six
25 applications per time. We might actually purchase one
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
57
1 or two of those.
2 You can see that through this graph.
3 Obviously, the number on the X axis there is a lot
4 smaller than what we were dealing with in shrimp. You
5 know, you can see there annually we're purchasing in the
6 neighborhood of six to eight and obviously as low as one
7 or two licenses in some years. Overall, same kind of
8 funding cycle. What you do see though there is the
9 tendency from about 2007 on, we've tried to increase our
10 emphasis on that. We've actually tried to increase our
11 value we're willing to pay so that we can pull more of
12 those licenses out. Right now, we have 193 licenses
13 left in the crab fishery.
14 When we look at finfish, it's very
15 similar to crabs in some respects. Started about the
16 same time, had about the same number of rounds. In
17 finfish and crabs, we often just hold one round per year
18 because we just weren't receiving the number of
19 applicants where it wasn't as worth it to us as much as
20 it was to shrimp to hold the two. But we've purchased
21 237 licenses. That's about 43 percent of the original
22 licenses when we started. Average price there around
23 8,900. Overall average price -- and this is a little
24 bit shocking as I looked at these numbers -- is $8,800.
25 So we're still hanging in there right at the average.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
58
1 We haven't had the increase very much to start
2 attracting more folks.
3 We've spent a little over 1 million
4 dollars at this point. Again, the thing to note, very
5 heavy emphasis on getting as many out the first few
6 years and then reemphasis of that as we move through the
7 last four or five years. So to date, when you combine
8 all of those totals, we've purchased 2,300 licenses.
9 That's in all three of those programs about 58 percent
10 of the original license total, and we've spent about
11 $15 million. Again, while an expensive program, when
12 you think about minimizing that social and economic
13 disruption and that long-term thinking that the
14 Legislature and the Commission and others here working
15 on the programs when they were established helped to
16 provide, it's been beneficial to the community and the
17 resource as we move through time.
18 Obviously, from the perspective of
19 buyback as you all know, that was one of our budget
20 reductions in the next biennium; so the appropriated
21 money that funded this program will not be with us for
22 the next two years. We do look forward to continuing
23 the buyback program. We've had very strong donations in
24 the neighborhood of -- throughout the entire program --
25 around 1.5 to 1.6 million dollars and we have some of
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
59
1 that in reserve to help make us -- to have an
2 opportunity to continue buybacks through the next two
3 years.
4 With that, I would be happy to answer any
5 questions.
6 COMMISSIONER FRIEDKIN: Thanks, Robin.
7 Commissioner Hughes.
8 MR. HUGHES: Hey, Robin, are we
9 approaching some of our constituent groups, letting them
10 know we don't have funding for this program for the next
11 two years to see if we can't get them to kick in and
12 help us?
13 MR. RIECHERS: Well, we have about --
14 and, yes, the answer is yes, first off; but we do have
15 about $1.2 million based on the Negley Conservation
16 Fund, which was established in the Texas Parks and
17 Wildlife Foundation. That money is there, and we
18 certainly are going to go to that well first; but
19 obviously our partners -- and they've been very, very
20 quick to jump to this program in the past and if we
21 reach a point, they'll be there again I believe.
22 COMMISSIONER FRIEDKIN: Commissioner
23 Jones.
24 COMMISSIONER JONES: I assume we don't
25 issue new licenses for these various categories.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
60
1 MR. RIECHERS: Yeah. When the limited
2 entry programs basically went into effect, that capped
3 the number of overall licenses and then that was part of
4 this whole notion. Then we would, through time, draw
5 those numbers down and reduce that fishing effort. Yes,
6 sir.
7 COMMISSIONER JONES: And have you seen --
8 and I know you have different percentages for the
9 different categories. Your overall percentage is
10 58 percent decrease in licenses. Have you seen or can
11 you track whether you've seen a similar decrease -- or,
12 no -- increase I guess in the number of fish, crab,
13 shrimp, whatever that are available? I mean has there
14 been a correlation with decreased licensure, increased
15 populations?
16 MR. RIECHERS: Our abundance trends for
17 shrimp are certainly going up, and offshore shrimp has
18 really shown the impacts of both this program and our
19 management efforts. We had a significant management
20 package that went through in 2000. Crabs, most recently
21 we've seen an increased abundance. And Black Drum, we
22 were fortunate when we did it in the finfish fishery,
23 which Black Drum was a big portion, we basically did
24 that at a time when we were at a very high level of
25 abundance.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
61
1 So we've either maintained that or seen
2 it increase. In addition, this kind of ecosystem
3 management focus that we've talked about in reduction of
4 bycatch, we're at a period of time where we're seeing in
5 our gears that we -- where we collect the same way every
6 time -- we're seeing a diversity or a suite of species
7 that is greater than we've seen in the past. So we're
8 seeing a biological benefit. It's not one to one, but
9 it's certainly there.
10 COMMISSIONER FRIEDKIN: Okay. So it's --
11 we've quantified that, and that's a great question. And
12 tied to that, what are our goals? I mean what do we
13 want to see in terms of buyback? You know, I don't know
14 if we can correlate it, you know, exactly. But what
15 would you -- at some point, it becomes inefficient to
16 keep buying back a small number. At what point do we
17 say we've succeeded with this program, we're where we
18 need to be, the impact on population dynamics and the
19 resources is measured and it's positive and we're done?
20 MR. RIECHERS: Certainly from a shrimp
21 perspective, I think we're -- we've neared that point.
22 In fact, we were even discussing that prior to the
23 hurricanes, how to kind of wind that program down. Now
24 there's some dedicated moneys coming from shrimp
25 licenses; so we'll have to work with the Legislature in
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
62
1 regards to that.
2 From crabs and finfish, we believe based
3 on some of the modeling that we've done, we still have a
4 ways to go there. But, you know, good point and we're
5 definitely trying to measure as closely as we can with
6 those models and determine where it is -- when we reach
7 that point.
8 COMMISSIONER FRIEDKIN: All right.
9 Thanks, Robin. That's great. I know this was a big one
10 for former Commissioner or Chairman Fitzsimons as well.
11 So I'm sure he's -- he'll be pleased to hear the report
12 as well. Thank you. Appreciate it.
13 Okay. Briefing Item 6, development of
14 best watershed management practices for conservation of
15 Texas aquatic ecosystems, Tim Birdsong. Good morning.
16 MR. BIRDSONG: Good morning. Chairman,
17 Commissioners, my name is Tim Birdsong. I'm Chief of
18 the Inland Fisheries Division's Habitat Conversation
19 Branch. And this presentation is a good follow up to
20 the Bastrop State Park presentation where Greg
21 highlighted some of the watershed best management
22 practices that are being implemented there such as
23 waddles and brush fences and check dams to minimize
24 erosion and negative impacts to habitat there at the
25 park.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
63
1 And so in this presentation, I want to
2 highlight a new conservation tool that provides
3 web-based access to over 2,000 best management practices
4 that have been shown to protect, restore, and enhance
5 these functional processes within watersheds, providing
6 for healthy rivers and streams and productive aquatic
7 ecosystems. So if you were to think of some of the more
8 pristine rivers in the state, you might think of the
9 Devils River or various streams of the Texas Hill
10 Country, such as the Sabinal, the Frio, the Nueces and
11 then stretches of the Guadalupe River or the Llano
12 River. And one commonality among all those rivers is
13 that the majority of their watersheds are intact. So
14 those functional processes are in place.
15 And when I talk about functional
16 processes, I'm talking about upland habitats and natural
17 cover that allow for spring recharge, Riparian zones
18 that maintain natural levels of input of sediment and
19 nutrients and provide that connection between
20 terrestrial and aquatic food webs. We also talk about
21 natural flow regimes. We talk about instream
22 connectivity wells, movement of organisms within the
23 river and stream. And in contrast to those more
24 pristine rivers that have these intact watersheds, more
25 and more Texas rivers are starting to look like this.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
64
1 These really engineered, altered systems.
2 This is a creek near Fort Worth and most
3 of these urban streams have a similar story in that
4 there was unsustainable growth and development within
5 the watershed, there were high levels of impervious
6 cover and stormwater runoff that led to altered flows
7 within these rivers and streams that led to bank erosion
8 and flows that were not able to be maintained within the
9 natural floodplain. So there were threats to homes and
10 infrastructure within the area, and this was an
11 engineered solution to that problem. And here is
12 another photo early on in the construction of that
13 engineered stream.
14 And one thing I'll point out is most of
15 these engineered streams, this doesn't provide any
16 lasting solution typically; and in addition, it really
17 eliminates habitat for fish and wildlife. So these best
18 management practices or BMPs that we've tried to
19 identify, help us promote resiliency of rivers and
20 streams and watersheds and avoid the need to try to move
21 to these sorts of engineered systems.
22 So the specific objectives of this
23 project were to identify landscape factors affecting the
24 health of our watersheds, develop specific BMPs to
25 address those impairment issues, provide that
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
65
1 information through a web portal so it could be used by
2 landowners, the public, practitioners and others, and do
3 it in a way that facilitates planning and implementation
4 of on-the-ground projects.
5 And so to meet that first objective of
6 conducting a watershed condition assessment or assessing
7 the health of our watersheds, we used these measures of
8 landscape disturbance and we looked at over 70 different
9 variables that have been shown to directly effect the
10 health of habitats in rivers and streams. And I won't
11 go into detail on these two figures here. These are a
12 couple of examples. The one on the left shows the
13 health of Riparian zones throughout the state, and the
14 one on the right shows the percentage of impervious
15 cover within the watershed. Red is bad. Green is good.
16 You'll notice high levels of alteration in urban areas
17 and then also on the upper coast.
18 And so through that assessment, we were
19 able to identify what the specific watershed degradation
20 issues were in each ecoregion of the state. We then did
21 an extensive literature review to identify BMPs to
22 address those specific issues. We aligned those BMPs
23 with conservation actions and priorities identified in
24 the State Regional Conservation Plans. We identified
25 restoration and preservation projects that had -- that
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
66
1 were ongoing or had recently been implemented that
2 employed some of these BMPs. And then we identified
3 conservation partners, funding, sources of funding and
4 technical assistance and other resources that we could
5 offer to organizations that might be interested in
6 working with us to implement these BMPs.
7 So just a quick screen grab, this is a --
8 this is the web portal where all of this information is
9 being made available to the public. And I want to
10 quickly point out Megan Bean, who's sitting in the back
11 of the room here. She was hired through a cooperative
12 agreement with Texas State University and has been
13 working on this for about the last year, year and a
14 half, and has, like I mentioned earlier, assembled over
15 2,000 of these BMPs.
16 And so now I want to quickly highlight
17 how we're using those in one ecoregion of the state, the
18 Edwards Plateau. This is an area with numerous spring
19 fed high quality rivers and streams and the majority of
20 those have healthy, intact watersheds. Although there
21 are some issues. So human populations on the Plateau
22 are expected to increase by 25 percent by 2020, so
23 upsets to the region are expected to double in
24 population size and so those increased water demands and
25 land use changes associated with that human population
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
67
1 growth are going to place considerable threats on these
2 watersheds and the rivers and streams.
3 Real quickly, this is a figure that
4 summarizes all of the data from those 70 plus variables
5 that we looked at. Again, red is bad. Purple and blue
6 means that you have low levels of alteration. And
7 again, lots of red along that -- you can see San Antonio
8 and Austin listed there, so lots of red along the
9 San Antonio/Austin corridor. And as you know, we're
10 just continuing to move westward on the Plateau; so lots
11 of concerns there.
12 But I want to take you to the South Llano
13 River. I highlighted this Guadalupe bass restoration
14 initiative to you-all back in January of this year. And
15 since I've highlighted that project and, you know, I
16 talked a lot about these projects that we're working on
17 with landowners through our landowner incentive program,
18 we had a 10,000-acre wildfire in that watershed. And so
19 now we're actively working with landowners to implement
20 some of these BMPs. Some of the same BMPs that Greg
21 mentioned in the Bastrop State Park presentation.
22 So here's some brush fences that have
23 been designed within the burned area, and this is just
24 adjacent to the South Llano River. And just real
25 quickly, I want to throw up one of the documents that
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
68
1 we've identified there. This is a BMP document that
2 lays out a design for how to construct these brush
3 fences and here is a rock fence or trinchera that we've
4 designed on another property and this again is just in a
5 dry creek bed. And here is post rain. This is a few
6 weeks ago and you can see the amount of sediment that
7 was captured by that structure and not moved into the
8 river.
9 And we're working on a number of other
10 properties, private properties primarily within the
11 South Llano River watershed. We have areas like this
12 that have been overgrazed and that resulted in some bank
13 erosion, so we have BMPs to support design of Riparian
14 restoration. Instream cover like these submerged trees
15 are real important habitat for Guadalupe bass and other
16 native species and again, we have BMPs that help us
17 design those rock and bolder complexes. Again, another
18 set of BMPs there.
19 One issue with just about all Hill
20 Country Streams is these poorly designed road crossings
21 and this alters flows and usually backs up sediment
22 upstream of those crossings and then you have flow
23 velocities coming through those culverts that don't
24 allow fish to move upstream, so it's a barrier to
25 movement and limits access to spawning and nursery
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
69
1 grounds and creates a lot of other problems with these
2 streams and there are a number of BMP documents,
3 hundreds of BMP documents, on how to effectively design
4 these culverts and a lot of those BMPs were employed in
5 the design of a new crossing that was recently
6 constructed there in Junction near the Llano River field
7 station.
8 And so you can see the design here
9 minimizes impacts to the stream bed, allows for fish
10 movement, and a real plus here is that this is an area
11 within that paddling trail that I mentioned that we're
12 about to move forward with on the South Llano. And so
13 those tunnels there are of a size to allow for canoers
14 and kayakers to be able to move through that area. So
15 as we implement all these BMPs within the South Llano
16 River watershed, especially as we implement those at
17 South Llano River State Park and at the Llano River
18 field station, we're trying to connect that paddling
19 trail with upland hiking trails that we have at both of
20 those locations and we'll be putting up these kiosks
21 that highlight the BMPs that we've implemented, talk
22 about the ecological and recreational importance of Hill
23 Country streams, and really try to demonstrate to
24 landowners and the public why we do these things and how
25 they can implement those on their own properties.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
70
1 So next steps for this project, we're
2 putting on a watershed BMP demonstration workshop on
3 November 12th in Junction at the Llano River field
4 station and then we have BMPs that we've set up at
5 several private properties within the watershed and
6 those landowners are working with us. So we're going to
7 be taking members of the public, landowners and
8 practitioners, out to these sites and talk about how
9 those projects were implemented.
10 And for the last two years, we've been
11 supporting these Riparian conservation workshops that
12 have been conducted in the Nueces River watershed and
13 we're expanding those to other areas of the state and
14 we're trying to incorporate more of these BMPs and BMP
15 guides into the agenda for those workshops. We're also
16 working with the Nature Conservancy to incorporate
17 coastal habitat BMPs into this tool and so they have
18 recently produced some practitioner guides on oyster
19 reef restoration and coastal wetland restoration and
20 other techniques, so we're going to be pulling all that
21 into the system.
22 And then we have several regional and
23 national partners that we've been working with and we've
24 had review this as we've gone along and there's a lot of
25 the interest in expanding this BMP's portal to become
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
71
1 more of a regional tool or possibly even a national
2 tool, so that's the direction that we're headed. Here
3 are lots of partners that were involved in developing
4 the tool for Texas, and I'm sure we'll add lots more if
5 we end up expanding this to regional or national
6 settings. So that's what I've got, thank you.
7 COMMISSIONER FRIEDKIN: Great work, Tim.
8 Thank you so much. Any questions, comment? Commission
9 Duggins.
10 COMMISSIONER DUGGINS: Actually a
11 question. When you look at the partners, one I don't
12 see is Brazos River Authority. Are we -- do we
13 contemplate getting with someone like that?
14 MR. BIRDSONG: Sure. And so I should
15 have listed the Lower Colorado River Authority because
16 they have been involved somewhat in the work on the
17 South Llano River watershed. And so most of our BMP
18 examples have been developed there, at least those that
19 are specific to Texas because that's where we're doing
20 most of our watershed restoration.
21 But, yeah, hopefully river authorities
22 will be partners as we expand this initiative to other
23 watersheds around the state.
24 COMMISSIONER DUGGINS: It seems like we
25 probably ought to stay in touch with them or at least
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
72
1 offer the work -- good work you're doing to make it
2 available to them and encourage them to follow through.
3 MR. BIRDSONG: Sure, thank you.
4 COMMISSIONER FRIEDKIN: Thanks, Tim.
5 Appreciate it. Any other questions or comments for Tim?
6 Okay, thank you.
7 Action Item 7 is implementation of
8 legislation during the 82nd Texas Legislative Session,
9 House Bill 3722, relating to fees for the Boater
10 Education Program of Texas Parks and Wildlife
11 Department, recommended adoption of proposed changes,
12 Ms. Nancy Herron. Good morning.
13 MS. HERRON: Good morning, Commissioners.
14 I'm Nancy Herron. I'm the Outreach and Education
15 Director, and I'm here today to request an action
16 related to the implementation of -- hello -- of House
17 Bill 3722 concerning boater education fees.
18 As a little background, boater education
19 is mandatory for those who are -- were born after
20 September 1st, 1993, and are at least 13 years of age.
21 They must pass a course or equivalency exam to legally
22 operate a vessel more than 15 horsepower, a windblown
23 vessel over 14 feet in length, or personal water craft
24 alone in public waters. Between the ages of 13 and 18,
25 they can operate under the supervision of a legal
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
73
1 operator over the age of 18 on board with them.
2 Boater education is offered through
3 in-person classes, through home study, and internet
4 courses. You only have to take it once. It's a
5 lifetime certification. The law also allows for a
6 deferral program under certain conditions and under
7 approval of rule of Commission. Law enforcement and
8 education staff are working with representatives from an
9 advisory panel on recreation boating safety to come up
10 with that recommendation for deferral, and we'll come to
11 you at a future meeting with that.
12 But today we're talking about House Bill
13 3722, which allows for an increase in the service fee
14 that agents may collect. And currently, $3 may be
15 retained by providers of boater education. Our internet
16 providers have said that not only does Texas charge less
17 than the other states, but that $3 is not sufficient to
18 cover their cost of providing the course. In addition,
19 there are some new requirements coming from the national
20 level that we expect will increase their costs.
21 Over 70 percent of our students take the
22 course online. We anticipate that this trend is going
23 to continue and, in fact, we made recent budget cuts in
24 boater education staffing to reflect that trend. So
25 this bill not only responds to the needs of the private
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
74
1 sector and our web providers, it also removes the burden
2 of adjusting those fees as a legislative action.
3 Staff therefore recommends that we put
4 boater education in rule under the same chapter, the
5 Texas Administrative Code Chapter 53.50, that already
6 has those rules that the Department sets the fees for
7 marine enforcement, safety training, as well as hunter
8 education fees. We're proposing that the rules define
9 the term agent, place the $10 required State fee in
10 rule, allow the Department's Executive Director to set
11 the agent service fee, and exempt the State fee for
12 internet course or exams.
13 Agent would be defined as a person or
14 entity acting on behalf of the Department in the
15 administration of boater education course or course
16 equivalency exam in accordance with the Department
17 guidelines. This would also place the $10 statutory
18 course fee and agent service fee in rule and establish a
19 30-day period in which an agent remits the fee to the
20 State. It would also allow the Department's Executive
21 Director to establish the agent service fee schedule.
22 This is the amount that they may collect and retain, and
23 cap that fee at $25.
24 Additionally, we recommend that the rules
25 exempt providers of internet courses or exams from
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
75
1 collecting and remitting to the Department that $10 fee;
2 so they would be exempt. Lastly, the rule would not
3 restrict the fee for enhanced courses established by
4 approved independent providers. Those might be, for
5 example, the U.S. Coast Guard Auxillary or the Power
6 Squadrons. Students may choose to get additional
7 training or certification, special hands on training on
8 the water, etcetera. Providers can have these options
9 available to students and we would recognize that, not
10 restrict their fee as long as they meet state and
11 national standards.
12 The benefits of this action would be to
13 help ensure continued availability of online courses.
14 It will encourage the private sector to provide a
15 variety of course and fee options. It simplifies
16 setting the fee schedule, and sets a cap for service
17 fees, clarifies the term agent, and establishes a
18 deadline for remittance of the $10 course fee.
19 We've received two public comments, both
20 in favor of this change. And, therefore, our
21 recommendation is that the Texas Parks and Wildlife
22 Commission amends Texas Administrative Code 53.50
23 concerning training and certification fees with changes
24 as necessary to the proposed text as published in the
25 July 22nd, 2011, issue of the Texas Register.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
76
1 And with that, I would be glad to answer
2 any questions you might have.
3 COMMISSIONER FRIEDKIN: Thank you.
4 Vice-Chairman Duggins.
5 COMMISSIONER DUGGINS: Is it clear that
6 this only applies to vessels in public water?
7 MS. HERRON: Clear in the -- you mean the
8 boater education law?
9 COMMISSIONER DUGGINS: Yeah. I mean is
10 it -- where is it -- where does it state that these
11 boater education requirements apply only to people who
12 operate in public water?
13 MS. HERRON: I would like to turn -- Jeff
14 Parrish, would you like to address that?
15 MR. PARRISH: Mr. Chairman,
16 Commissioners, Jeff Parrish, Parks and Wildlife
17 Department Boating Law Administrator for the Law
18 Enforcement division.
19 Yes, it does say it. It says to legally
20 operate a vessel on public waters in Texas, Chapter 31.
21 COMMISSIONER DUGGINS: Is that in our
22 regulations or --
23 MR. PARRISH: Yes, sir. It's in
24 Chapter 31 of the Parks and Wildlife Code.
25 COMMISSIONER DUGGINS: Okay. Next
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
77
1 question is we say an agent is a person acting on behalf
2 of the Department. Does the person have to be -- I mean
3 as I understand it, the person has to be approved?
4 MS. HERRON: That's correct. And they go
5 through a process with us, a training course, and they
6 sign a contract with us as a volunteer trainer or we
7 have a memorandum of understanding with a group, such as
8 the Coast Guard Auxillary that has their own process, so
9 that they are trained instructors.
10 COMMISSIONER DUGGINS: So when we say at
11 the end of the proposed language that we've got where it
12 says "in accordance with the Department guidelines,"
13 that's what you're referring to?
14 MS. HERRON: That is true.
15 COMMISSIONER DUGGINS: I think that what
16 I would suggest then is a slight modification to
17 proposed (c)(1) where it would say agent is an
18 approved -- a person approved in accordance with
19 Department guidelines, rather than the way it's phrased.
20 MS. HERRON: A person...
21 COMMISSIONER DUGGINS: So again, after
22 person I would insert approved in accordance with the
23 Department guidelines.
24 MS. HERRON: Okay.
25 COMMISSIONER DUGGINS: That's the first
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
78
1 suggestion. And then the question -- the next one I
2 have is a question on proposed (5). We talk about a
3 boater education provider; but in each of the other
4 subsections, we use the word "agent." Is that intended
5 to be different, or should boater education provider be
6 agent in (5)?
7 MS. HERRON: Let me pull that up. Yes,
8 we can change that to agent. It's meant to be agent.
9 COMMISSIONER DUGGINS: Isn't that what
10 you meant is agent?
11 MS. HERRON: Yes, it is.
12 COMMISSIONER DUGGINS: To be consistent
13 since you used agent in two, three, and four --
14 MS. HERRON: Correct.
15 COMMISSIONER DUGGINS: -- I would suggest
16 you use agent instead of boater education provider.
17 MS. HERRON: Yes, sir.
18 COMMISSIONER DUGGINS: And with that, I
19 would move for approval.
20 COMMISSIONER FRIEDKIN: Thank you. Okay,
21 so with the proposed modifications, motion for approval,
22 Commissioner Duggins. Second? Commissioner Hughes.
23 All in favor?
24 (A chorus of ayes)
25 COMMISSIONER FRIEDKIN: Any opposed?
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
79
1 Hearing none, motion carries. Thank you.
2 MS. HERRON: Thank you.
3 COMMISSIONER FRIEDKIN: Action Item 8,
4 acceptance of land donation, Orange County, 111 acres at
5 the Tony Houseman WMA, Mr. Ted Hollingsworth. Good
6 morning, Ted.
7 MR. HOLLINGSWORTH: Good morning.
8 Chairman, Commissioners, good morning. My name is Ted
9 Hollingsworth. I'm with the Land Conservation Program.
10 This item and the item that follows are closely related.
11 They fall out from an easement, a pipeline easement,
12 that you authorized back in May for a 20-inch diameter
13 hydrogen pipeline that crosses the Tony Houseman
14 Wildlife Management Area in deep Southeast Texas right
15 on the Sabine River on the Texas-Louisiana border. In
16 the city of Orange basically.
17 And as a result of you authorizing this
18 easement for this pipeline, there were -- there was
19 compensation. We've been working on compensation to
20 fish and wildlife resources both in response to federal
21 regulations for impacts to wetlands and also to offset
22 fish and wildlife resources in the wildlife management
23 area itself. We've been working closely with the
24 Conservation Fund, as has the applicant, to identify
25 tracts of land adjacent to the wildlife management area
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
80
1 with suitable fish and wildlife habitat for acquisition
2 and addition to the wildlife management area, at the
3 expense of the applicant.
4 This 111-acre tract is contiguous.
5 Actually, takes up a slice of land that's undeveloped;
6 but that separates the wildlife management area from
7 encroachment from a nearby neighborhood. It's healthy
8 habitat. It's suitable for hunting and fishing, and you
9 can see it in this map. It is bisected by I-10; but
10 again, it is good habitat and protects the wildlife
11 management area, adds valuable habitat. And the
12 Conservation Fund has acquired that and will transport
13 to Texas Parks and Wildlife again as partial
14 compensation for that easement from the Air Products
15 pipeline.
16 This is a precedent we set about three
17 years ago with the Denbury Green pipeline that came
18 through the wildlife management area in attempting to
19 offset those impacts by adding land to the wildlife
20 management area. In this case, we're looking at about 4
21 acres of impact in the wildlife management area. About
22 15 acres of wetland impacts along a 25-mile stretch of
23 the pipeline. And as a result, we're adding roughly 300
24 acres of habitat to the wildlife management area.
25 And with that, staff recommends that you
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
81
1 adopt the following motion. The Executive Director is
2 authorized to accept the donation of approximately 111
3 acres of land adjacent to the Tony Houseman Wildlife
4 Management Area for addition to the WMA. I'd be happy
5 to answer any questions you have.
6 COMMISSIONER FRIEDKIN: Thanks, Ted. Any
7 questions, comments for Ted?
8 Okay, motion for approval?
9 COMMISSIONER JONES: So moved.
10 COMMISSIONER SCOTT: Second.
11 COMMISSIONER FRIEDKIN: Commissioner
12 Jones; second, Commissioner Scott. All in favor?
13 (A chorus of ayes)
14 COMMISSIONER FRIEDKIN: Any opposed?
15 Hearing none, motion carries.
16 Action Item 9 is acceptance of land
17 donation, Orange County, 218 acres at the Tony Houseman
18 WMA, Ted Hollingsworth.
19 MR. HOLLINGSWORTH: Chairman,
20 Commissioners, good morning. My name is Ted
21 Hollingsworth. I'm with the Land Conservation Program.
22 This item is closely related to the previous item. The
23 111-acre donation came to us to help offset impacts to
24 fish and wildlife resources on the wildlife management
25 area. An additional 218 acres has been acquired by the
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
82
1 Conservation Fund on behalf of the applicant, Air
2 Products, to compensate for impacts to wetlands along
3 the course waters of the U.S. along the course of the
4 pipeline in Texas.
5 This is a federal process, but the Corps
6 of Engineers also has worked with us to offset those
7 impacts by allowing the acquisition and donation of
8 these lands to Texas Parks and Wildlife to be managed as
9 part of the wildlife management area. Something I would
10 like to do, I believe Andy Jones is here.
11 Andy, are you still in the room?
12 Andy Jones is with the Conservation Fund.
13 This is one of those projects that really requires a lot
14 of leg work. Andy has worked closely with those
15 adjacent landowners to get those properties appraised,
16 to bring those landowners on board, and to identify
17 willing sellers, to do all the homework to get those
18 transactions to close. Without partners like Andy,
19 there's a lot of work that the existing staff at Parks
20 and Wildlife just simply couldn't have done and I really
21 do want to recognize them for their role in making this
22 we believe a real net benefit to fish and wildlife
23 resources of the state of Texas.
24 Again, these properties are adjacent to
25 the wildlife management area. They actually simplify
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
83
1 our boundaries. They add a significant amount of
2 bottomland hardwood forest. They are huntable
3 properties and will be added to the public hunts and to
4 the overall wildlife management for the wildlife
5 management area. And again with that, staff recommends
6 adopting the following motion. The Executive Director
7 is authorized to accept the donation of approximately
8 218 acres of land adjacent to the Tony Houseman Wildlife
9 Management Area for addition to the WMA.
10 And again, I'd be happy to answer any
11 questions.
12 COMMISSIONER FRIEDKIN: Any questions or
13 comments for Ted? Ted, thank you very much.
14 Okay, motion for approval? Moved by
15 Commissioner Morian. Seconded by Commissioner Scott.
16 All in favor?
17 (A chorus of ayes)
18 COMMISSIONER FRIEDKIN: Any opposed?
19 Hearing none, motion carries. Thank you, Ted.
20 Action item -- don't go away. Action
21 Item 10, request for easement, Ward and Winkler
22 Counties, water distribution easement at Monahans
23 Sandhills State Park.
24 MR. HOLLINGSWORTH: Chairman,
25 Commissioners, my name is Ted Hollingsworth. I'm with
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
84
1 the Land Conservation Program.
2 COMMISSIONER JONES: Are you the same Ted
3 Hollingsworth that gave the last two presentations?
4 Because y'all look alike.
5 MR. HOLLINGSWORTH: I'm not going to make
6 any promises I can't keep. This item is a second
7 reading of a request from the Colorado Municipal Water
8 District for an easement to place a water line across
9 the Monahans Sandhills State Park in Ward and Winkler
10 Counties out in West Texas.
11 This a very special state park. As you
12 can see in this picture, these are inland sand dunes
13 that are the result of some pretty unique geological
14 forces that come together right there in that corner of
15 the state. The State Park itself is located about
16 30 miles southwest of Odessa. There is an existing
17 33-inch pipeline that crosses in what I've labeled here
18 the water line corridor. That line was installed in
19 1971. The customer service base for the Municipal Water
20 District has increased dramatically since 1971.
21 Their abilities to supply water has been
22 exacerbated by the current drought, and they now propose
23 to add a 48-inch water line along side the existing
24 33-inch water line. They have convinced staff that
25 there really is not a prudent and reasonable alternative
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
85
1 to using the existing corridor for this new water line.
2 The park is actually leased from the
3 Sealy & Smith Foundation in Galveston. We have a
4 hundred year -- we're about halfway through a hundred
5 year lease on that property and we've worked -- been
6 working closely with the Foundation and with the Water
7 District to come up with the terms and conditions that
8 protect the State Park to the maximum extent possible.
9 Obviously, installation of a 48-inch pipeline in sand
10 dunes is a pretty invasive process and we're working
11 with their engineers and consultants now to try and
12 minimize the long-term effects by making sure that the
13 stratigraphy of the soils is maintained before and after
14 installation of the pipeline, minimize impacts to Horned
15 lizards, sand dune lizards, other wildlife that are
16 endemic to the park. And again, we're working closely
17 with the Foundation. We're going to prepare those terms
18 and conditions that protect the State Park and then
19 essentially we'll split the compensation for the impacts
20 from that easement.
21 Staff does recommend that the Commission
22 adopt the following motion, the Commission adopts the
23 resolution, which you have attached as Exhibit A. And
24 I'd be happy to answer any questions. I would also
25 point out that John Grant, the general manager for the
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
86
1 Water District is here with us today in case you have
2 any questions for him.
3 COMMISSIONER FRIEDKIN: Any questions?
4 COMMISSIONER JONES: I have a follow-up
5 question. Did we ever determine if our water source to
6 the park is adequate or will be adequate into the --
7 MR. HOLLINGSWORTH: Yes, sir, we did. We
8 looked into that. Currently, the park draws water from
9 two wells on site. The water supply is adequate and has
10 been adequate. It is possible to tap into one or the
11 other water lines that would cross the pipe -- the
12 Municipal Water District. That is not potable water.
13 We would have to construct a treatment facility to use
14 that water. The closest the pipeline passes to any of
15 our existing infrastructure is a little over a mile. So
16 while it is possible and while we'll hold onto that as
17 an option for future water supply, currently the
18 arrangement we have with the on-site water wells is
19 providing the water we need at much less cost.
20 COMMISSIONER FRIEDKIN: Thank you, Ted.
21 Appreciate all your hard work on this.
22 Motion for approval? Commissioner
23 Martin. Second Commissioner Falcon.
24 All in favor?
25 (A chorus of ayes)
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
87
1 COMMISSIONER FRIEDKIN: Any opposed?
2 Hearing none, motion carries. Thank you.
3 Okay, before we proceed with Action Item
4 No. 11, contested case hearing, application of Joe B.
5 Long and Mark L. Stephenson for a sand and gravel
6 permit, I would like to advise the audience that you are
7 welcome to stay for this presentation. However, it
8 could take as long as two hours. Not to discourage you.
9 Would love to have you if you want to be here. We'll
10 take about a five-minute recess before we proceed.
11 Thank you.
12 (Recess taken)
13 COMMISSIONER FRIEDKIN: Okay, thanks. Am
14 I on? I am. We will now hear and consider State Office
15 of Administrative Hearing's Docket No. 802-09-4552,
16 involving a contested case regarding the application of
17 Joe Long and Mark Stephenson for a sand and gravel
18 permit.
19 Before we proceed, I understand that
20 Commissioners Hixon and Scott wish to make a statement.
21 MS. HIXON: Mr. Chairman, I understand
22 that one of the parties in this case, Mr. Leo -- that
23 one of the parties is a Mr. Leo Perron, who is a
24 personal friend of mine. Although Mr. Perron and I have
25 certainly not discussed this case -- in fact, it was
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
88
1 only recently that I found out he was involved -- I feel
2 that in order to avoid any suggestion of a conflict,
3 that I should recuse myself.
4 COMMISSIONER FRIEDKIN: Thank you.
5 COMMISSIONER SCOTT: Mr. Chairman, I
6 understand that one of the parties in this case is the
7 LCRA. As y'all know from early 2009 until late 2010, I
8 was on the Board of Directors of the LCRA. I don't know
9 anything about it. I don't remember anything. I don't
10 think there's any conflict; but just to make sure, I
11 choose to recuse myself as well.
12 COMMISSIONER FRIEDKIN: Thank you,
13 Commissioner Scott. Appreciate it, thanks.
14 Okay, I'll ask Ann Bright, general
15 counsel, to provide some brief procedural background
16 regarding this case and then each party will be given
17 the opportunity to address the Commission. The
18 allotment of time among the parties will be as follows:
19 Applicants, 20 minutes; protestants, 15 minutes; LCRA,
20 five minutes; TPWD staff, five minutes; and then
21 Applicant rebuttal, five minutes.
22 Ms. Bright, please make your
23 presentation.
24 MS. BRIGHT: Good morning, Commissioners.
25 For the record, my name is Ann Bright. I'm general
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
89
1 counsel. As you know, the next agenda item is the
2 consideration of the application of Joe B. Long and Mark
3 L. Stephenson for a sand and gravel permit.
4 For purposes of this matter, TPWD's
5 Deputy Executive Director for Administration, Gene
6 McCarty -- there -- and I have been screened from any
7 participation in this case in order to allow us to
8 advise and assist the Commission in rendering a decision
9 here; but without violating any of the rules against ex
10 parte communications.
11 To assist the Commission in rendering a
12 decision, the Commission has been provided background
13 information about this cause, including the following:
14 The Administrative Law Judge's proposal for decision,
15 the Applicants' exceptions to the proposal for decision,
16 the protestants' exceptions, the LCRA support and
17 exceptions, staff's reply -- TPWD's staff's reply to the
18 exceptions, a letter from the ALJ about the exceptions
19 and replies, post hearing correspondence and a post
20 hearing motion by the Applicants.
21 I would also like to let the Commission
22 know that Judge Michael O'Malley, who is the ALJ that
23 presided in this case, is here in the event there are
24 any questions about whether a particular piece of
25 evidence is in the record. But unless called upon, he's
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
90
1 really just going to be here to observe. I would also
2 like to inform the parties that George Rios, who is our
3 Director of Information Technology, is going to be
4 operating the timing system. The green light will
5 appear as the end of the allotted time approaches, the
6 yellow light will indicate the time is almost out, and
7 the red light will indicate that time has expired. And
8 that concludes my comments.
9 COMMISSIONER FRIEDKIN: Thank you.
10 Counselor for the Applicants, the Commission and I have
11 each have had the opportunity to review the proposal for
12 decision and the Applicants' exceptions to it. We are
13 now ready to hear your argument. You have 20 minutes,
14 thank you.
15 MR. BROWN: Thank you, Mr. Chairman and
16 members of the Commission. My name is Dick Brown, and I
17 represent Mark Stephenson and Joe Long. They are
18 lifelong residents of Llano County. Both are licensed
19 plumbers, and they've applied for a permit. What
20 they're proposing to do is to mine a 24-acre island that
21 was created in the Llano River in a flood that happened
22 in 1997.
23 This island rises about 8 feet up out of
24 the Llano River. It used to be part of the BC Long
25 Ranch; but it was cut off in the 1997 flood, which is
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
91
1 the largest flood that ever occurred on the Llano River.
2 And what they're proposing to do is to mine that sand
3 deposit that constitutes the island. That sand island
4 is -- was attached to the Long Ranch. It's now across
5 the stream of the Llano River from it. And this is a
6 ranch that's downstream from another mine called the
7 Chanas Ranch Mine, which is next to a piece of property
8 that used to be owned by Mr. Leo Perron, who's one of
9 protestants.
10 This is not a typical sand and gravel
11 case to come before this Commission because this isn't a
12 dredging operation. We've got a lot of dredging
13 operations in coastal rivers, but this is not one of
14 those. This is digging up sand with an excavator. And
15 we're here today because the Administrative Law Judge,
16 in our opinion and as we'll show, made some legal errors
17 that need to be corrected.
18 Primarily what he did is he
19 misinterpreted and resulted in creating nonsense out of
20 a part of the Texas Parks and Wildlife Code. And that
21 part is Section 86.004 that grants the Commission its
22 discretion to act in these cases. He also failed to
23 apply the clear meaning to the words the "water used in
24 the operation" that appears in that statute and in
25 Section 86.005. He also misinterpreted your regulation,
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
92
1 your Commission rule that's in the Texas Administrative
2 Code at 31, Administrative Code Section 69.108.
3 He then misplaced the burden of proof by
4 failing to recognize that once the Applicants had put on
5 a prima facie case showing that they had met the
6 requirements of the statute, the burden shifted to those
7 opposed to demonstrate that the opposite was true and
8 the opponents failed to do that. And those errors
9 combined to have him make the wrong recommendation to
10 you.
11 Your obligation being to follow the law,
12 you can correct those errors and render the proper
13 decision. And when you do so, the decision should be
14 that the application will be granted and Mr. Long and
15 Mr. Stephenson will be permitted to mine this sand and
16 provide revenue to the State of Texas. Now the
17 Legislature and the Governor have made this Commission a
18 steward of some of the State's resources. Obviously,
19 our parks and our wildlife; but also a part of the
20 State's natural resources.
21 I've given you a handout and the first
22 page in that handout is some excerpts from Parks and
23 Wildlife Code Chapter 86. The mandates of the
24 Commission is in Section 86.001. It says the Commission
25 shall manage, control, and protect certain resources.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
93
1 The resources at issue are marl, sand of commercial
2 value, and gravel and shell and mudshell. But it's not
3 all of those resources throughout the state. It's those
4 resources that exist in four specific locations
5 identified in the statute.
6 First, within the tideland water limits
7 of the state; second, on islands within the tidewater
8 limits; third, on freshwater areas that belong to the
9 State of Texas and are not in a private land survey; and
10 forth, on islands that are within the freshwater areas
11 of the state. And it's the last one that this case is
12 concerned with. Sand and gravel that's on an island
13 within the freshwater areas of the state not embraced by
14 a survey of private land.
15 Now we've talked a little bit 86.001.
16 The Commission having been given a mandate to control
17 these things is given very broad discretion on how to
18 exercise that stewardship. And that discretion is
19 limited only by Section 86.004. 86.004 tells the
20 Commission when it does not have the jurisdiction to
21 grant a sand and gravel permit, and that's a very narrow
22 exception.
23 If you look at that statute, it says you
24 can -- you may, operative word is may, grant a permit as
25 long as the application -- as long as the permitted
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
94
1 activity would not do every one of five bad things and
2 those are listed. And it's every one of those five
3 things because the statute says that the operation will
4 not and then it lists A, B, C, D, and E. So that means
5 that it's all five of those. It's not one of those.
6 It's not two of those. It's not three of those. You
7 have the discretion to issue the permit unless every one
8 of the five is violated.
9 Now some may argue that that's a strange
10 kind of statute; but nobody, neither you nor the Courts,
11 are entitled to try and figure out what the Legislature
12 intended when the Legislature issues clear language.
13 And it did here. It said will not A, B, C, D, and E.
14 Now you-all come from different areas of the state, so
15 I'm going to take just a minute to orient us to what
16 we're talking about geographically. We're talking about
17 a place on the Llano River which is a tributary to the
18 Colorado River. The Colorado River comes through Austin
19 and it's dammed for the first time in Austin at Lady
20 Bird Lake and then we have Lake Austin, Lake Travis
21 where the Pedernales River comes in, then Lake LB --
22 then Lake Marble Falls and then Lake LBJ, where the
23 Llano River enters the Colorado River.
24 Lake LBJ is very a big lake. It's more
25 than 6,500 acres of surface area, and it holds in
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
95
1 excess -- or nearly 6 billion cubic feet of water. A
2 huge volume of water. The Llano River itself drains
3 over 4,200 square miles of the Edwards Plateau and Llano
4 uplift. Importantly, there's no flood control structure
5 anywhere on the Llano River. So when the rain falls on
6 the rocks and runs off the rocks and into the river, the
7 river floods and it floods frequently. It floods
8 several times a year on average.
9 The flow is widely variable. This summer
10 it virtually dried up. The average flow is 378 cubic
11 feet per second; but the normal flow on a day when
12 there's neither a drought nor flood, is about 100 cubic
13 feet per second. Contrasted with that, the maximum
14 reported flow of the Llano River compared to the 100
15 cubic foot normal flow, was 260,000 cubic feet per
16 second in 1997, a huge flood, but it has smaller floods
17 that occur several times a year.
18 We heard earlier this morning a
19 presentation about the South Llano River, and that's one
20 of the State's pristine rivers. The part of the Llano
21 River that we're talking about in this case is not a
22 pristine river. The lowest reaches of the Llano River
23 are now part of Lake LBJ. Immediately above that, the
24 river has been clogged with sand that's washed down the
25 river. People who bought waterfront homes on that
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
96
1 stretch of the Llano River now have beachfront homes.
2 Where they -- instead they have boat docks that are
3 completely sanded in, and they don't have access to the
4 river.
5 Moving upstream, you come to a low water
6 bridge. A concrete bridge that goes across the Llano
7 River, Farm Road 3404. It's the first bridge, first
8 public crossing downstream of the proposed mining
9 operation. With this low water bridge, it's typical of
10 low water bridges in the state of Texas whatever falls
11 on the bridge goes in the river. Either it runs off, or
12 it gets washed off.
13 If we move up the -- if we move up the
14 river from there, go around a couple of big bends, you
15 come to the BC Long Ranch. Now the BC Long Ranch is on
16 the south side of the Llano River. It's a ranch that's
17 been in the Long family since the 1880s. It's a working
18 cattle ranch, about 1,100 acres. Joe Long, one of the
19 Applicants, lives there and his half brother, Mark
20 Stephenson, spent his childhood there. There's been
21 sand and gravel mining on the ranch since the 1970s.
22 In that area the Llano river, except in
23 flood, is about 50 feet wide and less than a foot deep.
24 It's just an easily walked across or forded river.
25 Upstream and downstream of the BC Long Ranch are
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
97
1 property owned -- are properties owned by two of the
2 protestants. Across the river are the properties of the
3 other protestants. In fact, there's only one protestant
4 in this case who isn't a landowner adjacent to the Long
5 Ranch and that's Mr. Leo Perron, who is a close relative
6 of several of the protestants.
7 Moving up the Llano River from the Long
8 Ranch, you go a couple of miles and then you come to
9 something called the Chanas Ranch. Now the Chanas Ranch
10 has a very large sand and gravel operation that is not
11 on State owned property. It's on private property, and
12 it is operated in ways that render the river anything
13 but pristine in that area. If you'd turn to the next
14 page in the papers that I've put before you, these are
15 two exhibits from the protestants' witness Dr. Lauren
16 Ross. The first is a photograph that she took while
17 kayaking down the Llano River, showing large piles of
18 sediment of mined sand and gravel that have been piled
19 right next to the river by the Chanas Ranch operation.
20 A complete violation of anything approaching a best
21 management practice, creating a severe danger of
22 materials being washed into the river in any flood
23 event. Typical of the operations that occur there.
24 If you turn to the next page, this is an
25 aerial photograph that Dr. Ross used in her testimony.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
98
1 You can see Highway 1431 running diagonally across and
2 then the Llano River and there's a white line that sort
3 of goes up the left side of the paper. Where that
4 crosses the Llano River, that is one of those concrete
5 bridges with small apertures that was talked about this
6 morning by some of your employees. This one was built
7 without any permit, without any authority. It's an
8 illegal bridge built by the Chanas Ranch and their
9 operations. And the evidence in this case is that it's
10 a severe interference with recreational use of the
11 river.
12 So if there is -- if there are problems
13 with the -- with bad operations in the Llano River,
14 they're up the river at the Chanas Ranch. They're not
15 in the area where my clients propose to operate.
16 Turning back to Section 86.004, the Supreme Court has
17 said in its case of Robinson versus Reliable Life
18 Insurance Company, construction of "and" to mean "or" is
19 never resorted to except for strong reasons. It should
20 never be so construed unless the context favors the
21 conversion and where not doing so would render the
22 meaning ambiguous or result in an absurdity or be a
23 tantamount to a refusal to correct a mistake.
24 In this case, what the Hearing Examiner
25 did is he did construct "and" to mean "or" and doing
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
99
1 that actually reaches an absurd result. And that's
2 clearly demonstrable. If you look at the first page in
3 the handout to Section 86.005, which is where the
4 Legislature tells the Commission what it has to look at
5 in considering an application for a permit, what I've
6 highlighted there, it says it "Shall consider the
7 injurious effect on oysters, oyster beds, and fish in or
8 near the water used in the operation."
9 Now the Hearing Examiner's construction
10 of "and" to mean "or," would mean that this Commission
11 doesn't get to consider any case in which there's any
12 injurious effect on oysters, oyster beds, and fish in or
13 near the water used in the operation. So the
14 Administrative Judge says, well, if there's any injury,
15 you can't consider the case and then when you do
16 consider the case, you have to consider the injury.
17 That's an absurd interpretation on its face.
18 There's an old Attorney General's opinion
19 that made the same mistake, and it further speculated
20 about what the Legislature must have been thinking
21 about. It hasn't been tested in any court case, and is
22 not entitled to any weight at all. The Administrative
23 Law Judge also made a mistake of interpreting the word
24 "significantly" and "injuriously" in the statute, as if
25 they meant "possibly" or "at all." Three of the five
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
100
1 disqualification categories in Section 86.004 use the
2 word "significantly" and two use the word "injuriously."
3 The Hearing Examiner -- the Administrative Law Judge
4 treating those words "significantly" and "injuriously"
5 as if they meant "possibly" or "at all," tainted his
6 decision and compels its reversal.
7 Another legal error that the
8 Administrative Law Judge made was where he dealt with
9 the water -- with the language in the statute that
10 refers to the water used in the operation. Now "use" is
11 a common word, and common words get common meanings.
12 "Use" means to take hold or deploy as a means of
13 accomplishing a purpose or achieving a result, to employ
14 something. This is not a dredging operation. It's a
15 dry land mining operation done with an excavator. There
16 is no water used in the operation. The sand and gravel
17 will be scooped up with an excavator, put in a dump
18 truck, and hauled away. Any water that's in the sand
19 will simply fall back into the pit and it will be
20 reabsorbed into the sand. The sand and gravel on this
21 island is clean. It doesn't need to be washed, so
22 there's no water for that. It's just screened and
23 sorted, and all of that is done outside the floodplain.
24 So there is no water used in the operation in this case.
25 However, the Administrative Law Judge
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
101
1 decided that the water in the Llano River that flows
2 past the Long Ranch because it could touch the tires of
3 the dump trucks as they drove over it, was water used in
4 the operation. He decided that the water in the river,
5 because in floods it carries sand that would be
6 deposited in the mining operation area, was used -- was
7 water used in the operation of the mine.
8 Here the language of a statute is
9 unambiguous and its meaning is clear, the statute must
10 be given a fact according to its terms. The only
11 reasonable interpretation of water used in the
12 operation, dictates that there is no water used in the
13 operation in this case and, therefore, the Examiner's
14 decision was fatally flawed again.
15 The Commission has historically applied
16 one of its rules, Rule 69.108(c), only to circumstances
17 where there was a proposal to do dredging operations
18 below the lowest dam on a river and here we're above the
19 fifth dam on a river. 69.108(c) historically would not
20 have application to this case, although it doesn't
21 specifically refer to dams; but, in fact, it doesn't
22 have any application to this case because of the
23 language of the rule. 69.108(c) refers to activities in
24 a streambed. A stream is the area washed by the water,
25 wetted by the water in normal flow. Here we're on an
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
102
1 island and not in the streambed, so 69.108(c) would have
2 no application.
3 For all of these reasons, the
4 Administrative Law Judge grossly misinterpreted the law.
5 He made serious errors that, when corrected, would
6 compel the decision in favor of the Applicants in this
7 case because the Applicants met their burden of proof
8 and those opposed to the Applicants completely failed to
9 rebut that evidence. All they did instead of proving
10 substantial, they offered evidence to the effect that
11 there might be some pollution, there might be some oil
12 that would drop off of a truck and get washed down to
13 the river; but nothing to the level of substantial
14 pollution, which is what the law required. That the
15 injuries be considered only if they are material and
16 substantial and in this case, there are no material and
17 substantial injuries that would result and, therefore,
18 the application should be granted. And I would -- if
19 you have any questions, I would be happen to answer them
20 or do so later if you would prefer.
21 COMMISSIONER FRIEDKIN: Thank you for
22 your presentation.
23 Protestants, you now have 15 minutes to
24 make your presentation, please. Thanks.
25 MR. ROCKWELL: Thank you, Chairman and
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
103
1 Commissioners. My name is Brad Rockwell. I'm here
2 representing four landowners living adjacent to the
3 proposed sand and gravel mine. Here is a photograph of
4 the sandbar at issue. It stretches 4,000 feet. This is
5 the Applicants' property over here. This is one of my
6 client's property over here. So the sandbar is not just
7 near the Applicants' property, it's also near one of my
8 client's property and I also represent the clients that
9 live over here and use this sandbar frequently for
10 recreation. And in contrast to what was said before,
11 there's photographs in the record showing that this
12 sandbar is frequently covered with water and there's
13 photographs showing most of it submerged during high
14 water periods.
15 This is an unusual case. I don't -- you
16 know, I know it's unusual for this Commission to
17 consider these kinds of cases; but it's also unusual and
18 I just want to give just a little bit of background
19 before I go into the substance of the law on this. The
20 person the Applicant hired to advise them on this
21 project, help them operate it, and actually provided the
22 only expert testimony in this case is a fellow named
23 Brad Shaw.
24 Brad does have -- Mr. Shaw has
25 experience. He helped manage another sand and gravel
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
104
1 operation in the neighborhood. The owner was a friend
2 of his, owns property with him, and he's currently in
3 the penitentiary for methamphetamine and cocaine
4 possession, assault with a deadly weapon, and that's all
5 in the record. Mr. Shaw used to be surveyor until he
6 had his license revoked for fraud and misleading --
7 fraudulent and misleading conduct. Apparently, he
8 surveyed 40 other people's lands and told them that he
9 owned the land and was willing to sell them land that
10 already belonged to them. He had his surveyor's license
11 revoked. He's also an engineer, but has been repeatedly
12 disciplined by the State Board of Engineers for
13 misconduct.
14 This both kind of gives you a little bit
15 of background into the quality of evidence that was
16 presented by the Applicant, but also to the ability of
17 the Applicant to adequately operate a sand and gravel
18 mine, one of the discretionary factors that y'all can
19 consider. I want to go through the mandatory
20 requirements that are set forth both in the statutes and
21 in the Administrative Code that apply to this sand and
22 gravel operation.
23 There's a section of the Administrative
24 Code, 69.108(c), that requires a study in all
25 circumstances where there's sand and gravel mining.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
105
1 There's no exceptions laid out in the language of this
2 provision. And if you look at the Texas Register when
3 this provision was enacted back in 1997, I believe, it
4 referred to the study that's required under this section
5 as an environmental impact statement and it made clear
6 it was available -- it was something required in all
7 sand and gravel mining operations. And as our experts
8 testified, it asked for the type of information that
9 would important -- be important to know so that you know
10 what the consequences of the mining operation are.
11 So one of the requirements is that the
12 study be done, and that this study must be approved by
13 you. The proposed -- what the Applicant has proposed as
14 a study is a document prepared by Brad Shaw. And when I
15 questioned Brad Shaw over this document, repeatedly he
16 stated there was no scientific basis for the assertion,
17 conclusionary assertions he was making, there is no
18 scientific literature that supported or provided
19 evidence for the conclusions he was drawing in this
20 study. So what does the study require?
21 It requires an evaluation of the sediment
22 budget of the river to be mined. The Administrative Law
23 Judge concluded accurately that the -- in Findings of
24 Fact 66 to 69, that none of this sediment budget had
25 been done. There's no budget at all. There's no
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
106
1 numbers in this proposed study. Evaluation of erosion
2 rates of the river segment to be mined is also another
3 requirement. Findings of Fact 70 through 71, study does
4 not evaluate or quantify past, existing, or potential
5 erosion in the river segment to be mined. It does not
6 address the potential effects on erosion rates, removal
7 of vegetation from the area and digging extensive pits.
8 This study is also required to evaluate
9 the effective mining on the receiving waters. Finding
10 of Fact 72, the study does not provide sufficient
11 information to evaluate the effects on receiving waters
12 in the area of the proposed project. And again, we did
13 offer experts in these areas to talk about some of the
14 issues and one of the significant issues is for the
15 sediment budget is when you remove large amounts of
16 sediment from a riverbed or a streambed as here, it
17 creates a deficit in the water and the water seeks to
18 pull in more sediment from other sources and frequently
19 what you see is upstream and downstream erosion caused
20 by the sediment removal that actually increases the flow
21 of sediment into the river from erosion and other
22 effects on adjacent landowners. So these are why these
23 things need to be in such a report.
24 So one of the things -- and this was
25 briefly gone over by the Applicant, but I think in a
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
107
1 very misleading way. The statute is very clear.
2 Section 86.84 is that you do have some discretion to
3 grant a permit; but in order to have this discretion,
4 you must first find that the disturbing, taking, and
5 carrying away of the marl, sand, and gravel or mudshell
6 will not and it lists five different findings that you
7 have to make in order for you to begin to be able to
8 exercise your discretion to issue a permit.
9 One of those findings is that you must
10 find that the mining operation will not significantly
11 accelerate erosion upstream or downstream. That's the
12 subsection five. And again, Brad Shaw didn't produce
13 any such evidence and the Administrative Law Judge
14 concluded in findings of Fact 70, no evaluation or
15 quantification of erosion in Applicants' study. Finding
16 of Fact 71, no evaluation of the effect on erosion from
17 vegetation removal and digging of pits in a sandbar.
18 Expert testimony that we offered show that these
19 activities of the mining could lead to significant
20 upstream and downstream erosion. The Conclusions of Law
21 10, this requirement was not met, there's no facts in
22 the record that would enable you to make that finding.
23 Another finding that's a requirement, you
24 have to affirmatively find that the mining operation
25 will not significantly increase downstream nonpoint
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
108
1 source pollution. Finding of Fact 54 from the
2 Administrative Law Judge, potential sources of
3 downstream nonpoint source pollution from the proposed
4 operation include disturbance of the bed of the flowing
5 channel of the Llano River by means of 20,000 truck
6 crossings per year. Removal of portable road mats --
7 these are airplane runway mats -- creating a focal point
8 for erosion. The ramp for access from the flowing
9 channel to the sandbar creating a focal point for
10 erosion. Wash up of sediments, chemicals, and
11 lubricants from the vehicles crossing the river. Spills
12 and leaks from the sandbar and destabilization of the
13 sandbar by the removal of Riparian and vegetation. And
14 that's just one finding that goes to the fact that
15 there's nothing in the record that supports the ability
16 of the Commission to make a finding of this sort. And,
17 of course, Conclusion of Law 10 that the Applicant did
18 not meet this burden.
19 Another finding that's required is that
20 the mining operation will not damage or injuriously
21 effect any island, sandbar, channel, river used for
22 navigation. There's no dispute that this is a navigable
23 river, both in law and fact. Positive findings against
24 this, Findings of Fact 40, Riparian vegetation plays
25 important roles in a river ecosystem. The proposed
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
109
1 mining operation will adversely effect the Riparian
2 vegetation. And Riparian vegetation, we're talking
3 about this sandbar here that has willow trees, it has
4 sycamore trees, it has all kinds of other vegetation up
5 and down it, even though it is periodically submerged.
6 And this vegetation, the -- both the ALJ and the experts
7 showed it was crucial to the ecology of the river,
8 protecting against erosion and protecting against flow
9 of sediment in the river.
10 So the proposed removal of the vegetation
11 from the sandbar would damage and injuriously effect the
12 sandbar. Finding of Fact 55, the proposed project would
13 diversely effect fish in or near the proposed operation.
14 Again, Conclusion of Law 6, failure of the Applicant to
15 meet this burden and then create a fact record that
16 would enable you to make that finding that is a
17 requisite for a permit.
18 Another finding, you have to
19 affirmatively find that the mining operation will not
20 significantly injuriously change the hydrology of the
21 river. Finding of Fact 46, Riparian vegetation helps
22 control flood flows and alleviates downstream flood
23 peaks. Finding of Fact 47, the proposed mining
24 operation will adversely effect Riparian vegetation.
25 Conclusion of Law 9, the Applicant did not meet the
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
110
1 burden of providing facts that would enable you to make
2 that finding on hydrology. Again, the only expert they
3 relied on was Brad Shaw.
4 So other things that you in your
5 discretion you can rely on is the effect on recreation.
6 Here there was plenty of evidence in the record and
7 findings of Fact 57 through 60, to show that this area
8 of the river is used extensively for recreation. It's
9 used for hiking, for camping. People camp on the
10 sandbar. There's canoes and kayaks that go up and down
11 the river. There's fishing. One of my clients has --
12 engages in hunting on one of the tracts that adjoins the
13 sandbar. And then clearly this adversely effects
14 recreation and navigability of the river.
15 These factual findings of the ALJ can be
16 reversed only on the basis of technical error, if
17 there's just no evidence to support them. The ALJ is
18 given the responsibility to be the primary factor or at
19 least the initial fact finder in these kinds of
20 proceedings. So we ask you that you deny the permit,
21 approve and affirm the decision of the ALJ, adopt his
22 Findings of Fact and Conclusions of Law, including the
23 modified recommendations made in his June 24th, 2011,
24 letter, which included deleting his initial Findings of
25 Fact 16 and 17.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
111
1 And I think that concludes my
2 presentation. I'd be glad to answer any of your
3 questions.
4 COMMISSIONER FRIEDKIN: Thank you.
5 Questions now? Okay, appreciate it.
6 LCRA, please make your presentation and
7 remember you have five minutes.
8 MR. RAMIREZ: Good morning, Mr. Chairman,
9 Commissioners. For the record, my name is Vic Ramirez.
10 I'm with the Lower Colorado River Authority. The LCRA
11 is a River Authority that was created by the Legislature
12 in the 1930s. Some of the authority that was provided
13 to LCRA in its enabling act includes the authority to
14 protect or seek the protection of water quality for the
15 Colorado River, the Highland lakes, and the tributaries
16 that feed into the Colorado River. That's why -- excuse
17 me. That's why we became involved in this particular
18 matter.
19 We had concerns with the possible
20 impacts, water quality impacts in particular, to the
21 Llano River as a tributary to the Colorado River. The
22 LCRA is in complete agreement and supports the
23 conclusions -- the findings and the conclusions that
24 were made by the Administrative Law Judge in this
25 matter.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
112
1 To put it simply, the Applicant has
2 completely failed to meet any of the requirements, the
3 statutory or administrative requirements of them in this
4 particular matter for you to issue this permit. The
5 evidence or the record clearly shows that there's no
6 credible evidence on any of these criteria, statutorily
7 or administratively, that would suggest the ability to
8 issue a permit to this Applicant. Mr. Brown, you know,
9 makes this argument of the and/or argument in 86.004.
10 Frankly, this is just a veiled attempt to
11 skirt around the fact that they have not met their
12 burden. They have not provided any evidence on several
13 of these criteria and then basically what he's trying to
14 do and what he's trying to get you to -- to convince you
15 to believe is that he only has to meet one of these
16 criteria and that will get away from the fact that he
17 has not provided any evidence regarding the other
18 criteria. There is no evidence to show how they're
19 going to operate. There were inconsistencies throughout
20 the record as to how they were even going operate this
21 mining operation. That in and of itself led to the fact
22 that it was hard for them to show and meet their burden
23 as to how they were not going to increase nonpoint
24 source pollution downstream, how they were not going to
25 significantly advance erosion down the river, and how
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
113
1 they were not going to impact water wildlife and fish
2 habitat.
3 They simply were not prepared to meet
4 that burden, and it's demonstrated by the lack of
5 evidence in the record. It's clear that throughout the
6 process, they -- you know, to put it bluntly, they went
7 on the cheap with regards to this application. It's
8 demonstrated by the fact that their expert was not
9 prepared to testify to the prime areas that he was
10 required to testify to that show that they deserve this
11 application.
12 The 69.108(c) study that they were
13 required to do, it basically lacks any credible
14 scientific information that could be used by you to make
15 a conclusion that they should get this permit. You
16 know, I've been involved in several permit applications
17 before State agencies and this is one of the least
18 informative applications or processes in a hearing
19 especially that I've ever been witness to. And I mean,
20 I think the Administrative Law Judge had no choice but
21 to make the findings and recommendations and conclusions
22 that he makes in his PFD.
23 So I'm available for any questions; but
24 once again, for the record, we support the findings and
25 conclusions that the Administrative Law Judge makes with
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
114
1 regard to this permit. Thank you very much.
2 COMMISSIONER FRIEDKIN: Thank you. Okay,
3 TPWD staff, please make your presentation. Thanks.
4 MR. SWEENEY: Good afternoon,
5 Mr. Chairman, Mr. Vice-Chair, Commissioners. I'm Bob
6 Sweeney representing the Executive Director of the Texas
7 Parks and Wildlife Department in this case. The
8 Executive Director strongly supports the proposal for
9 decision, with the exceptions of the Finding of Facts 16
10 and 17, which the Judge has agreed to delete.
11 The proposal for decision identified ten
12 separate regulatory and statutory requirements that this
13 application failed to meet. Ten. Any one of those ten
14 deficiencies standing alone would doom the application.
15 Taken together, they're overwhelming. I would like to
16 briefly summarize the shortcomings that the Judge
17 identified. I won't cite specific findings of fact, but
18 I have those available if you would like me to. The
19 Judge did include a list in Attachment B to the proposal
20 for decision if you have that of the applicable statutes
21 and rules, if you would like to make reference. I won't
22 read those statutes for you.
23 First, regarding Parks and Wildlife Code
24 Section 86.004(1), which concerns adverse effects on
25 fish, wildlife, the river and a bar or an island, there
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
115
1 are at least 17 Findings of Fact and two Conclusions of
2 Law that demonstrate the fatal flaws in the application.
3 The Applicants themselves conceded in writing that
4 digging pits would be injurious to the island. The
5 Applicants essentially conceded their failure to meet
6 86.004(1).
7 At least six Findings of Fact and
8 Conclusion of Law No. 8 expose the application's failure
9 to meet Section 86.004(2), which concerns a current that
10 would effect navigation. At least 13 Findings of Fact
11 and Conclusion of Law No. 9 display the application's
12 failure to meet Section 86.004(3), which concerns
13 adverse effects on river hydrology. At least ten
14 Findings of Fact, especially No. 54, demonstrate the
15 application's failure to meet 86.004(4), which concerns
16 nonpoint source water pollution, as does Conclusion of
17 Law No. 10.
18 At least 12 Findings of Fact and
19 Conclusion of Law No. 11 reveal the application's
20 failure to meet Section 86.004(5), which concerns
21 erosion. The Applicants' proposed to cross the flowing
22 rivers of the -- flowing waters of the Llano River
23 20,000 times per year with heavy equipment, 20,000
24 times, and never presented a satisfactory or thoroughly
25 analyzed method to prevent damage to the river.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
116
1 At least 15 Findings of Fact support the
2 proposal for decision to terminate if the application
3 fails to meet the balancing tests in Section 86.004 --
4 005, which means that the injurious effect of this
5 operation outweighs the needs of industry and value to
6 the State. At least 22 Findings of Fact address the
7 proposed project's material adverse effect on
8 recreation, as does Conclusion of Law No. 13. At least
9 five Findings of Fact address the proposed project's
10 material adverse effects on navigation. At least seven
11 Findings of Fact and Conclusion of Law 15 explain why
12 the balancing test in 31 Texas Administrative Code
13 Section 69.108(b), which is similar to the one in
14 86.005, compels denial of the application.
15 At least seven Findings of Fact and
16 Conclusion of Law No. 16 and 17 buttress the PFD's
17 conclusion that the Applicants did not submit an
18 adequate study under 39 -- 31 Texas Administrative Code
19 Section 69.108(c).
20 Mr. Chairman and Commissioners, the Judge
21 held a comprehensive three-day trial on this application
22 where he heard from approximately ten witnesses and
23 considered about 90 exhibits; afterwards, all the
24 parties had a thorough opportunity to brief their
25 positions and to respond to one another. The Findings
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
117
1 of Fact and Conclusions of Law in the Proposal For
2 Decision are unambiguous, they're unassailable, and they
3 are well and thoroughly supported by the record in this
4 case. The Executive Director recommends that you adopt
5 these Findings of Fact and Conclusions of Law, with the
6 exceptions mentioned, and deny this application. I'm
7 available for questions.
8 COMMISSIONER FRIEDKIN: Thank you.
9 Questions?
10 COMMISSIONER JONES: Remind me -- remind
11 me of the exceptions. Is it 15 and 16 or 16 and --
12 MR. SWEENEY: 16 and 17.
13 COMMISSIONER JONES: And why do you not
14 want us to adopt 16 and 17?
15 MR. SWEENEY: The Judge recognized those
16 tend to undermine his finding of jurisdiction and they
17 were intended to be, I think, a recitation of background
18 facts; but there were some aspects of them that went
19 against his finding and admissions by the Applicant that
20 there was, in fact, Department jurisdiction in the case.
21 So when those were pointed out, he agreed to delete
22 them.
23 COMMISSIONER FRIEDKIN: Thank you. Okay,
24 Applicant, you have five minutes to present a rebuttal.
25 MR. BROWN: Thank you, Mr. Chairman. The
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
118
1 protestants throughout this case have relied on ad
2 hominem arguments. They started off this morning by
3 doing the same thing. They attacked Brad Shaw. A
4 registered professional engineer, a former registered
5 surveyor in the State of Texas. Mr. Shaw did not have
6 his surveying license revoked, as Mr. Rockwell stated.
7 He gave it up. He resigned. Mr. Shaw owns a
8 substantial portion of the bed of Lake LBJ.
9 The LCRA, as Mr. Ramirez would tell you
10 if you asked him, does not own the bed of Lake LBJ. It
11 simply has a flowage easement. Mr. Shaw bought the bed
12 and some parts of it. He offered to sell his rights in
13 that land to landowners, and they didn't like it; so
14 they objected, and there was a case. There was a case
15 before the -- with the Surveying Commission and Mr. Shaw
16 decided he didn't want to be a surveyor anymore, but his
17 license was not revoked as Mr. Rockwell stated.
18 He is a registered professional engineer.
19 He lives in Kingsland. He's a landowner. He's a -- has
20 been up in that area for a long time. He's very
21 familiar with it. He knows sand and gravel operations.
22 He knows the river. He's entirely competent to render
23 the decisions that he did, that he -- the opinions that
24 he did render in this case.
25 The evidence in this case when you boil
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
119
1 it -- when you get down to it is that the Applicants
2 offered expert testimony that there would be -- there
3 would not be significant adverse material effects. The
4 protestants' evidence was we don't like your expert, and
5 we think there might be some effect. We don't like your
6 expert is not rebuttal evidence. It's just more of
7 their ad hominem argument. Saying that there might be
8 some effect is not rebuttal to affirmative positive
9 expert testimony that there will not be substantial
10 material effect, because that's the legal standard.
11 There was nothing that prevented the
12 protestants if they could have from offering evidence
13 that there would be material substantial adverse effects
14 from the proposed operation; but for reasons known only
15 to Mr. Rockwell and the protestants and the LCRA, they
16 chose not to put on that evidence and neither did the
17 Parks and Wildlife Commission. Thank you.
18 COMMISSIONER FRIEDKIN: Thank you.
19 COMMISSIONER JONES: Can I ask a
20 question?
21 COMMISSIONER FRIEDKIN: Please.
22 Certainly, Commissioner Jones.
23 COMMISSIONER JONES: I'm not sure I
24 understand, and I want to make sure I'm clear on your
25 point.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
120
1 MR. BROWN: Yes, sir.
2 COMMISSIONER JONES: Are you suggesting
3 that under 86.004 -- one, two, three, four, and five --
4 MR. BROWN: Yes, sir.
5 COMMISSIONER JONES: -- that you meet all
6 of those requirements?
7 MR. BROWN: Absolutely not, sir. Our --
8 COMMISSIONER JONES: Which ones do you
9 not meet?
10 MR. BROWN: In any operation that is
11 conducted to remove sand and gravel or shell or mudshell
12 from State owned waters or islands in the waters, the
13 first criteria cannot be met because the active removal
14 is damage. So if we're dredging in the channel, we're
15 damaging the channel. If we're digging on an island,
16 we're damaging the island. So obviously, the first --
17 the first criteria cannot be met because there will be
18 some change to what's being mined. That was the only
19 one that I think that we -- that we said that our expert
20 testimony did not show that we met was the first
21 criteria because the mere act of removal is obviously
22 causing damage to the place that the material is removed
23 from.
24 As to all the others, the evidence was
25 offered by the Applicants that there would not be an
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
121
1 injurious effect on the current or a change in the
2 current. There would not be a significant and injurious
3 effect or change in hydrology. There would not be a
4 significant increase in downstream nonpoint solution,
5 and there would not be any significant acceleration of
6 erosion upstream or downstream. And in response to all
7 of those, the experts presented by those opposed says,
8 well, there might be some.
9 COMMISSIONER JONES: Am I to understand
10 your argument that assuming an Applicant could meet all
11 five of the burdens that are listed in 86.004, one
12 through five, that the Commission still has the
13 discretion not to grant the permit as well as grant the
14 permit?
15 MR. BROWN: Absolutely, yes.
16 COMMISSIONER JONES: Okay. So under any
17 interpretation, we have discretion?
18 MR. BROWN: I think that is correct, sir.
19 COMMISSIONER JONES: Okay, I just wanted
20 to make sure I understood your argument.
21 MR. BROWN: You do have the discretion.
22 The protestants argue that you do not have the
23 discretion to consider the case because discretion only
24 exists when all five -- when any one of the five
25 circumstances is found to exist.
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
122
1 COMMISSIONER JONES: Okay. But you
2 believe we have discretion to either grant or deny --
3 MR. BROWN: Yes, sir.
4 COMMISSIONER JONES: -- under either
5 interpretation. Either all five are satisfied, or one
6 of the five is not satisfied.
7 MR. BROWN: I believe that you do. We
8 submit that you do have the discretion to decide this
9 case.
10 COMMISSIONER JONES: Okay.
11 COMMISSIONER FRIEDKIN: Thank you. Any
12 other questions or deliberation by the Commission at
13 point?
14 Okay, I would like to announce that
15 pursuant to the requirements of the Open Meetings Act
16 Chapter 551 Government Code, an Executive Session will
17 be held at this time for the purpose of seeking legal
18 advice from the general counsel under Section 551.071 of
19 the Open Meetings Act. The time is 12:18 p.m. We'll
20 now recess for Executive Session.
21 (Recess taken)
22 COMMISSIONER FRIEDKIN: Okay, we will now
23 reconvene the public session. The time is 12:32 p.m.
24 And I just want to thank all parties involved for your
25 efforts and your attention to this and certainly for
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
123
1 your time that you spent on this today.
2 Do we have any other questions or
3 discussion?
4 Okay, do we have a motion?
5 COMMISSIONER DUGGINS: I would --
6 COMMISSIONER FRIEDKIN: Commissioner
7 Duggins.
8 COMMISSIONER DUGGINS: -- move that we
9 deny the Applicants' motion to strike, that we adopt the
10 proposal for decision except for Findings of Fact 16 and
11 17, and that we grant the Chair the discretion to extend
12 the deadline for a response to a motion for rehearing by
13 up to 90 days if, in fact, a motion for rehearing is
14 filed.
15 COMMISSIONER FRIEDKIN: Any further
16 discussion on that motion?
17 COMMISSIONER JONES: I second the motion.
18 COMMISSIONER FRIEDKIN: Second,
19 Commissioner Jones. All in favor?
20 (A chorus of ayes)
21 COMMISSIONER FRIEDKIN: Any opposed? The
22 motion carries.
23 Okay, Ms. Bright, do we have an order?
24 MS. BRIGHT: Yes, Commissioner. I've got
25 an order that I believe reflects the decision today, so
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
124
1 I will circulate it for signature.
2 COMMISSIONER FRIEDKIN: Thank you.
3 (Letter signed by Commissioners)
4 COMMISSIONER FRIEDKIN: Okay. Ann
5 Bright, are there any other matters that need to be
6 brought before the Commission on this particular matter?
7 MS. BRIGHT: No, Mr. Chairman. I believe
8 this is done.
9 COMMISSIONER FRIEDKIN: Okay, thank you.
10 I thank you all. The Commission has completed its
11 business, and I declare us adjourned.
12 (Meeting adjourns)
13
14
15
16
17
18
19
20
21
22
23
24
25
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
125
1 In official recognition of the adoption
2 of this resolution in a lawfully called public meeting
3 of the Texas Parks and Wildlife Commission, we hereby
4 affix our signatures this _____ day of ______________,
5 2012.
6
7 _______________________________
T. Dan Friedkin, Chairman
8
9 _______________________________
Ralph H. Duggins, Vice-Chairman
10
11 _______________________________
Antonio Falcon, M.D., Member
12
13 _______________________________
Karen J. Hixon, Member
14
15 _______________________________
Dan Allen Hughes, Jr., Member
16
17 _______________________________
Bill Jones, Member
18
19 _______________________________
Margaret Martin, Member
20
21 _______________________________
S. Reed Morian, Member
22
23 _______________________________
Dick Scott, Member
24
25
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN
126
1 C E R T I F I C A T E
2 STATE OF TEXAS )
3 COUNTY OF TRAVIS )
4 I, Paige S. Watts, Certified Shorthand
5 Reporter in and for the State of Texas, do hereby
6 certify that the above-mentioned matter occurred as
7 hereinbefore set out.
8 I FURTHER CERTIFY THAT the proceedings of such
9 were reported by me or under my supervision, later
10 reduced to typewritten form under my supervision and
11 control and that the foregoing pages are a full, true,
12 and correct transcription of the original notes.
13 IN WITNESS WHEREOF, I have hereunto set my
14 hand and seal this Turn in date _____ day of
15 ________________, 2011.
16
17
18
19 __________________________
20 Paige S. Watts, CSR, RPR
CSR No.: 8311
21 Expiration: December 31, 2012
Firm Registration Number: 87
22 1016 La Posada Drive
Suite 294
23 Austin, Texas 78752
Job No. 95402
24
25
Sunbelt Reporting & Litigation Services
HOUSTON DALLAS/FT. WORTH CORPUS CHRISTI AUSTIN