Texas Parks and Wildlife Commission
Commission Meeting

Nov. 3, 2011

Commission Hearing Room
Texas 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:



  • 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


Retirement Certificates
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
Service Awards
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
Donations of $500 or more for the November 3, 2011 Commission Meeting
Not Previously Acknowledged by the Commission
  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

Texas Parks and Wildlife Commission Meeting
November 3, 2011
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                         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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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


       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)














                   Sunbelt Reporting & Litigation Services


       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.


       7                          _______________________________
                                  T. Dan Friedkin, Chairman

       9                          _______________________________
                                  Ralph H. Duggins, Vice-Chairman

      11                          _______________________________
                                  Antonio Falcon, M.D., Member

      13                          _______________________________
                                  Karen J. Hixon, Member

      15                          _______________________________
                                  Dan Allen Hughes, Jr., Member

      17                          _______________________________
                                  Bill Jones, Member

      19                          _______________________________
                                  Margaret Martin, Member

      21                          _______________________________
                                  S. Reed Morian, Member

      23                          _______________________________
                                  Dick Scott, Member


                   Sunbelt Reporting & Litigation Services


       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.




      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


                   Sunbelt Reporting & Litigation Services