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