Texas Parks and Wildlife Commission
Conservation Committee

Jan. 22, 2003

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744
               
     BE IT REMEMBERED, that heretofore on the 22nd day of

January,  2003, there came on to be heard  matters  under

the  regulatory  authority  of  the  Parks  and  Wildlife

Commission  of  Texas, in the Commission Executive  Board

Room   of  the  Texas  Parks  and  Wildlife  Headquarters

Complex, beginning at 11:20 a.m. to wit:


APPEARANCES:
THE PARKS AND WILDLIFE COMMISSION:

CONSERVATION COMMITTEE:

          Katharine Armstrong, Austin, Texas, Commission
          Chair
          Joseph B.C. Fitzsimons, San Antonio, Texas
          Ernest Angelo, Jr., Midland, Texas, Committee
          Chair
          John Avila, Jr., Fort Worth, Texas
          Alvin L. Henry, Houston, Texas
          Philip Montgomery, Dallas, Texas
          Donato D. Ramos, Laredo, Texas
          Kelly W. Rising, M.D., Beaumont, Texas
          Mark W. Watson, Jr., San Antonio, Texas

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:
Robert  L.  Cook, Executive Director, and other personnel
of the Parks and Wildlife Department
          CHAIRMAN ARMSTRONG:  First item on the

Conservation Committee's agenda is approval of the

committee minutes from the previous meeting.  Do we have

any changes or corrections?

          (No response.)

          CHAIRMAN ARMSTRONG:  If not, do I have a motion

to approve?

          COMMISSIONER FITZSIMONS:  So moved.

          CHAIRMAN ARMSTRONG:  And a second?

          COMMISSIONER HENRY:  Second.

          CHAIRMAN ARMSTRONG:  All in favor?

          (A chorus of ayes.)

          CHAIRMAN ARMSTRONG:  All right. Bob, could you

read the chairman's charges?

          MR. COOK:  Today, we've got a couple of

briefings that we'll update you on -- some of the many

water resource issues that we're involved in.  First,

we'll hear from Dr. McKinney concerning our regional

habitat conservation planning and the Edwards Aquifer

Association's use of this planning process.  Then, we'll

have an update from Doc and Kevin Mayes concerning the

status of our cooperative agreement on instream flow

studies.

          MR. McCARTY:  Before we get started we're out

of order --

          MR. COOK:  I may have got you out of order.

          DR. McKINNEY:  Yes, you have.  Do you want us

to --

          MR. COOK:  Let's let Walt do his CCC thing.

          DR. McKINNEY:  This is the Conservation

Committee.  Can you tell?

          MR. COOK:  We're ready to go.

          MR. DABNEY:  I don't think my pictures would

have fit his presentation.

          Good morning, Commissioner.  My name is Walt

Dabney, State Park Director.  And I'm here to brief you

quickly on the 70th anniversary of the Civilian

Conservation Corps, which will occur this March.  It will

be 70 years since that program was established by

President Roosevelt.

          The CCC worked extensively throughout Texas in

many of the parks that you have visited and enjoyed.  The

work was not always done with heavy machinery and so

forth.  But that wasn't necessarily the intent of it.

Many of the folks that came to work were farm boys and

folks that just could not find a job anywhere, doing

anything.  And the program was set up to try to help get

the nation out of very difficult times.

          These folks that came into these programs

learned all kinds of new skills, from furniture making to

stone masonry, and all kinds of other things.  They built

beautiful facilities across not only state parks, but

national parks across the nation.  And many of these

folks later went from the CCC into soldier positions in

the Second World War.

          Commissioner Fitzsimons will point out to you,

on this one, this is actually one of the rooms at Indian

Lodge that we just got through renovating, which ties

also back into this revenue picture that Suzy talked

about earlier.  We had half our rooms at Indian Lodge

offline.  This is one of the newer rooms, not CCC.  But

it is beautifully restored now.  And we see these as

going to be ways to actually increase our revenue.

          Anyway, the CCC, in many of our different

locations -- these folks learned everything from, as I

said, stone masonry to -- if you look in the middle of

that fireplace, that was actually a person that learned

sculpting on the job at Bastrop.  The refectory that many

of these buildings -- in fact all of them -- are still

used by visitors today, with some of Prop 8 money and the

previous bond money has gone back into these historic

sites to help renovate them and stabilize them.

          Approximately 30 plus state parks benefited

from the CCC and, in fact, were built by the CCC during

the '30s.  What's interesting to note is, by law, these

folks made $30 a month.  And they got to keep $5 of it

and $25 of it was sent home to help keep the families

afloat.  And they were thrilled to have the job.

          Today, we still benefit from what these folks

did.  The Cooper family at Abilene comes every year,

using the CCC facilities.  And their extended family

loves coming and staying with us.

          Tomorrow, what I'm going to be doing is doing a

quick presentation on the overall CCC.  And then we plan

to have two veteran CCC folks here, to spend just a

couple of minutes apiece with you, to share their

experiences.  And they're some neat men.  And they'll

give you a little background on what was going on in the

country them, and what this meant to them, and some of

the projects they worked on, and that kind of thing.  I

think you'll really enjoy it.

          Then we will have an actual resolution that we

would ask you to pass.  And a copy of that is on page 148

in your book.  It is honoring the CCC for what they did

in Texas and across the nation.  Another one of these

resolutions will be given to the legislature.  And,

hopefully, that will be passed, recognizing the CCC,

again, for what they did.

          Seventieth anniversary -- and we'll have two of

those folks here tomorrow.  I'll be glad to answer any

questions.

          MR. COOK:  Any questions or comments.

          COMMISSIONER MONTGOMERY:  You might note -- as

I understand it --

          MR. COOK:  Commissioner Montgomery?

          COMMISSIONER MONTGOMERY:  My memory is faulty.

Because I remember President Johnson was heavily involved

in the staffing and management early in his career.  It

might be worth noting.  And I don't know whether

activities for that might involve the Johnson family.

They might have an interest in it.

          MR. DABNEY:  We're going to have a nice

function out at Bastrop, with a lot of the -- it will be

a reunion.  I think it's in -- it's in March, the birth

date of the establishment of the CCC.  And we'll get the

information to you so that if you have an interest, and

the time to come over, you'd really enjoy meeting some of

these folks.

          Thank you very much.

          MR. COOK:  Thanks, Walt.

          CHAIRMAN ARMSTRONG:  This will be moved to the

agenda tomorrow?

          MR. COOK:  It's just a briefing, yes.

          CHAIRMAN ARMSTRONG:  Okay.

          MR. COOK:  You have a briefing tomorrow.

          CHAIRMAN ARMSTRONG:  Item number three,

regional habitat conservation plan, on Edwards Aquifer,

Larry McKinney.

          DR. McKINNEY:  Madame Chairman, members, Larry

McKinney, Director of Park Resources, Parks and Wildlife.

It's going to take a couple of us to get through this.

But we'll do it briefly for you -- to give an

introduction to a recent habitat conservation plan

proposal by the Edwards Aquifer Authority, and why we're

involved in that.

          I will digress just very briefly to give you

some history, I think, that's relevant to what we're

talking about and why we are involved.  1992, the City of

Austin went together with a number of other local

government units to develop, and adopt, and fund a

habitat conservation plan for the Endangered Species Act

to meet some requirements for species here in the Austin

area.

          During that whole process, there was a number

of landowner concerns about that process, developing and

implementing this regional plan.  And it prompted some

legislative action to provide a safety valve, if you

will, to address those concerns in any future plan.  And

you all, this Commission, you are that safety valve.

          And that's what we're going to try to brief you

on today.  Now, I've put -- I'm going to cover a couple

of things as to why we're involved in this.  But,

certainly, Ann Bright will spend more time on it at the

conclusion of this presentation.  But there's a couple

points I wanted to make.

          And it points out the fact that individuals --

they're eligible individuals of a citizen advisory

committee, part of this plan -- can bring grievances

before this Commission in regards to those regional

plans.  The key operative for us is within this state law

there are a lot of "shalls" for this Commission.  There

are a lot of things that you shall do.

          The Commission shall review grievances.  And if

the Commission finds the grievances have merit, they hold

public hearings.  And you shall vote on those grievances.

And then the Commission shall instruct plan participants

to take certain actions.  So there's some important areas

in here that you'll have to review and take action on.

And Ann will cover those with you.

          What I want to try to do is provide you a

little bit of a background.  Because the first regional

habitat conversation plan subject to this law from 1992

will likely come before you in the next year or so.

          And this is the Edwards Aquifer Regional

Habitat Plan.  The plan itself encompasses, for planning

purposes, all those counties in white.  So you can see,

it cuts across a pretty good swath of lower Central

Texas.  The actual permit itself, should it be granted,

will be, in effect, in those areas outlined in red, which

is the area of the Edwards Authority itself.

          A section of our code requires several actions

on our part, which we have followed up on.  It directs

the formation of a biological advisory team.  And Dr.

David Bowles, who is here to my left and will talk to you

shortly, has chaired that group.  And Bob Sweeney has

given them good legal advise.

          And I want to make a point here with Dr. Bowles

and Bob Sweeney both, but particularly Dr. Bowles, this

has been our first shot at having to do this.  And

thanks, really, to Dr. Bowles, and Bob Sweeney, I think

the process of working through that advisory team has

been very productive.  They've taken great steps to keep

it on a real clear view-type level, because of your

independent scientists that are working on this type of

thing.  I think the results have been useful and helpful

to the Edwards Aquifer Authority and others.

          I would point out that during the middle of all

this process, Dr. Bowles was called up and served his

time in the military a little bit, for a year.  And we

finally got him back.  We're happy.  So in all this, he's

been doing all this work.  And I really appreciate what

he has done.

          Also, our code directs the establishment of a

citizens advisory committee, of which 30 percent of the

members must be agricultural landowners and one member

from Parks and Wildlife.  And John Herron has filled that

role.  And, again, John has done a really good job in

moving that process forward, and meeting our obligations

under requirements of this piece of legislation.

          Now, what prompted this is, in 1993, the Texas

Legislature passed a bill, 1477, that really established

the Edwards Aquifer Authority, as you can see on the

chart.  It gave the Authority a number of really

difficult tasks to follow through with.  And the one that

we're going to be focused on is this -- is that they were

directed to address the questions of preserving

endangered species habitat, as part of their charge.  And

that's what they're trying to do in these regional plans.

          First of all, just some background.  The

Edwards Aquifer itself, of course, is very extensive

across the state.  What we're talking about is just the

southern portion -- not even the portion dealing with the

Austin area, but just San Antonio.  That southern portion

of the aquifer is what's in play here.

          To give you a very brief idea of what it looks

like, here is a diagram of the Edwards Aquifer, with

recharge and the artesian zone, where water comes up just

briefly.  The general flow of the water is, obviously,

from west to east and downhill, as you expect.  And where

we see that come out, where we see the manifestation of

the aquifer, is in Comal and San Marcos Springs, where

the water comes out of this southern unit.

          If you look at it from a cross-sectional

standpoint, you see that, basically, the city of San

Antonio floats on top of the aquifer.  The aquifer begins

far out in West Texas, in Kinney County.  And water moves

through there, again, and comes out in those springs.

And the impact of pumpage out of the Edwards Aquifer --

primarily for the city of San Antonio, but also for

agricultural and other uses -- the primary impact that we

see, and that's part of this regional habitat plan, is in

the spring flows at Comal and San Marcos.

          So, basically, the regional habitat plan --

it's a framework for the Authority to apply to the U.S.

Fish and Wildlife Services, under the auspices of the

Endangered Species Act, for a [inaudible] permit.  That

would allow for incidental take of several endangered

species from that southern portion.  And it's a long

list.  And it's species that live in the aquifer, species

that live in the springs that come out and the rivers

that those springs feed.

          So this is a very, very complex undertaking.

In fact, as we're trying to put this together, this is

probably the most complex biological issue I think I've

ever looked at in the whole time I've been here.  And in

a moment, I'm going to try to give you just a flavor of

why that's the case.  But it's a tough one.

          And everything, frankly, that I can think of

that deals with water -- except perhaps in the

Panhandle -- has some play in this issue that you may

well have to take a look at in this process.  And by that

I mean, there are endangered species associated with

every aspect of it.

          The Edwards still remains, from all practical

purposes, the sole source of water for the city of San

Antonio.  All the major Hill Country rivers flow over and

recharge the aquifer.  And there are direct impacts to

bays and estuaries from the decisions that are made under

this Authority.

          To give more detail, all of Texas' larger

springs have their origin in the Edwards Aquifer, and

nearly all of them have some endangered species

associated with it.  Under normal conditions, the aquifer

provides about 30 percent of the instream flows for the

Guadalupe River.  But, most significantly, during drought

periods, of which we've had many, almost 70 percent of

the river flow in the Guadalupe comes out of those

springs.  So it's very significant.

          There are endangered species issues associated

with that.  But, more importantly, the Guadalupe River

and its tributaries, the Blanco, San Marcos, and Comal,

have a tremendous impact on everyone downstream --

industry, agriculture, municipalities.

          You can see from the diagram of the watershed

there that the decisions that are made in San Antonio in

regards to pumping out of Edwards Aquifer doesn't just

affect the city of San Antonio or endangered species.

Because of the water coming out of the springs, and how

they feed that river, it affects everything downstream.

So there's lots of people, with a lot of interest, in

what happens in San Antonio, obviously.

          The Guadalupe River, of course, is a primary

source of freshwater inflows to San Antonio bay.  And as

a result of our official inflow studies, we've determined

that in order to maintain the current health of that bay,

we need about 1.15 million acre-feet of water a year to

maintain the health of that system.  And when you cut

that water back, even by a small amount, say 200,000 acre-

feet, you begin to have impacts on certain groups of

species, like brown shrimp and blue crabs.  If you begin

to have an effect on blue crabs, that has effect, yes, on

another endangered species -- there are endangered

species throughout this -- that is whooping cranes.

          This whole issue has been the basis of the San

Marcos River Foundation, or what we typically call the

SMRF Water Rights Permit -- which again has the attention

of our legislature.  And the CDQ is one of the highest

priority issues around right now.  And that permit itself

is, again, involved and related to whatever the Edwards

Aquifer Authority does.  So you begin to get the feel

of -- just everything is linked together in a spider web

of this type of thing that we'll be dealing with.

          So let's talk briefly about what are some of

the applications of this management issue and challenge

we'll have to deal with.  Well, the regional habitat

plan, as presented by the Authority, has five management

alternatives.  And we're not going to go through those.

But there are some common elements.

          All of the alternatives that they're laying out

as a possibility for inclusion in this plan has some

pumping limit, obviously, of how much maximum per year

pumping that you can take out of the aquifer.  Most

importantly, it also has a plan or an approach to deal

with drought situations -- such that if we enter a

drought at some point, there is a trigger that will

limit, or cap, or reduce, that pumping.  And, of course,

each of the alternatives talk about how you mitigate for

the adverse impact on the springs, and endangered

species, and all of that.

          Just to give you an idea of what we're talking

about, some pumping facts -- an idea of how pumping works

in the aquifer.  Over ten years of pumping, they have

pumped some 327,000 to 494,000 acre-feet per year.

That's what their averages have been.  And the median are

411-.  The maximum pumping that they've recorded was

542,000 acre-feet.

          Significantly to what we're talking about,

Comal Springs -- Comal Springs is the springs that we

kind of use as the bellwether; it tells us what's

happening in there before San Marcos reported -- but

we've seen the cessation of flows in Comal Springs in

1990, when the pumping rates were at 489,000 acre-feet.

But we see impacts, as we did in 1996, when the pumping

was around 400,000 acre-feet.  The legislative cap on the

pumping is around 450,000 acre-feet.

          And so you can see, there's some tough

decisions to be made.  And I do want to make a point --

and we work closely with the Authority.  And they're --

I'm trying to figure out some analogy -- I think, it's

like you're in a sinking boat, and you've appointed a

committee to bail, and they're bailing with a bucket with

a big hole in it.  It's just -- they have almost an

impossible job.  Because, obviously, they're not going to

be able to satisfy everyone.

          But they've done a really -- they're doing a

good job of putting the information together, and laying

alternatives out on the tables.  But there's going to be

some very tough decisions for them to make.  And they

have -- they stepped forward, and are trying to take, you

know, all of the steps that are appropriate to lay these

kinds of things out and make those decision.  And so,

we've appreciated that.  And we're trying to work with

them closely to make a very -- almost impossible job --

as bearable as possible.  But it's a tough one.  And it

will be in the future.

          And it really is going to be -- here are the

things that you all are going to hear, I think, if you're

going to lay this down.  There will be discussions about

what should that pumping cap be.  What should be that

maximum level, and how it affects springs?

          The next issue that you'll hear about is, at

what point do you begin to put restrictions on that

pumping cap?  When do we have a drought?  When does it

start?  What restrictions are they?  How do we deal with

that plan, to begin to limit pumping when it needs to be

limited?

          What is the acceptable risk -- and this is one

that the Fish and Wildlife Service will have to be

answering and opposed by -- what's the acceptable risk

for Comal Springs, or all the springs, going dry?  Can we

expect those springs to go dry during the drought of

record?  Is there anything we can do, or anything short

of that?

          What is the level of risk that the Fish and

Wildlife Service might be willing, or think that they

can, sign off on, to issue an incidental take permit.

And, of course, if they do, what is the appropriate

mitigation options to compensate for the take that's

going to occur with those species?  So it's going to be a

handful of issues.

          Just recently -- I'm trying to pass this over

to Dr. Bowles -- I think he's on my left -- recently, the

BAT met, just last week actually, and gave their first

report back to Edwards Aquifer.  So I asked David to give

you a quick summary of the issues that came up in that

meeting.  And the biological advisory team is seven, I

think.

          DR. BOWLES:  Six.

          DR. McKINNEY:  Six.  They're all -- they work

independently.  They're from all across -- from many

aspects, from industry and so forth, scientists that have

these backgrounds.  And they work to come out to their

conclusions, on an independent basis, so we can make sure

we're looking in that direction.  David, if you want to

kind of give them a call.

          DR. BOWLES:  Thank you.

          COMMISSIONER AVILA:  Dr. McKinney, can I ask

you a question?

          DR. McKINNEY:  All right.

          COMMISSIONER AVILA:  An acre-foot, is that a --

tell me what that is.  Is that volume, or is that square

footage?  What's the unit of measure?

          DR. McKINNEY:  326,000 gallons.

          COMMISSIONER AVILA:  Okay.

          DR. McKINNEY:  And basically, an acre-foot is,

in the agricultural use is -- it's one foot of water on

an acre of land.  That's what's it is.

          COMMISSIONER AVILA:  It's a volume?

          DR. McKINNEY:  It's a volume.

          DR. BOWLES:  It's also -- another way of

looking at it would be the amount of water that a family

of six would require for a year's use.

          COMMISSIONER AVILA:  Say that again.

          DR. BOWLES:  It's the amount of water that a

family of about five to six people would require for one

year's use.

          COMMISSIONER AVILA:  Okay.

          DR. BOWLES:  Commissioners, I am David Bowles.

I'm the Chairman of the Biological Advisory Team.  The

BAT, as we call ourselves, did meet last Tuesday.

Following our independent and individual reviews of the

HCP, we unanimously concluded that it was inadequate for

its stated goal of protecting, conserving the endangered

species habitat.  In effect, the spring runs at Comal and

the San Marcos Springs and the downstream interests to

the Gulf Coast estuaries.

          Following our review, we asked the Edwards

Aquifer Authority to strongly consider revising the HCP

to prepare a draft that a predecessor of stewardship for

those systems, including our interests downstream.  And

they have agreed to do so.

          Let me quickly go through some problem areas

that we identified.  But in general we had problems with

the biological goals that this HCP was going to meet.

          One is that we felt that it certainly did not

consider instream flow impacts, particularly one species

there called the Cagles-Matt [phonetic] turtle the

National Wildlife Service has considered as listing as

warranted for federal endangered status.  They felt it

properly considered that, as well as downstream user

interests such as the later chemical companies along the

Lower Guadalupe.

          Along the same lines, they did not adequately

consider the freshwater inflows into the San Antonio bay

system.  In fact, they didn't consider them at all.  And

we have a lot of interest there, such as the commercially

important brown shrimp, fishes, and what have you, crab,

that depend on those freshwater inflows.

          Part of their mitigation strategy for the

pumping limits they arrived at was to be captive breeding

programs for the endangered species.  However, we

considered that to be totally unrealistic since of all

the species that Dr. McKinney showed you in the earlier

slide, only one of those can be successfully reared in

captivity at this time.  And most of them, we're not even

sure where in the aquifer they actually occur.  So we

don't have that data at all.

          Also, they prepared several adaptive management

strategies to deal with the pumping levels that they

selected.  There was many of these that were just in the

concept phase of development.  They've never even been

tested; or they would be extremely expensive to

implement.

          Among these was one called spring flow

augmentation, where they would artificially charge

springs, like Comal Springs, during times of drought.

The scientific community has previously indicated that

that is not a credible option.  And it's just fraught

with all sorts of problems that would actually make a

situation worse rather than better, in all likelihood.

          Of course, as you know, the Lower Guadalupe

River, to which Dr. McKinney indicated much of the flows

in that lower river are coming from San Marcos and Comal

Springs, in fact in droughts, it's upwards of 70 percent.

There's, obviously, a large recreational base in New

Braunfels, in San Marcos, all the way down to the Gulf

Coast, estuaries.

          The HCP, as it was read, did direct economic

analysis, but only how it would affect irrigators and

water users south of San Antonio, or west of San Antonio.

It failed entirely to consider the economic impacts on

downstream interests, including commercial and sport

fishery interests, and other users as well.

          And I'm not going to show you any other things

here.  But that's some of the big stroke issues we had

troubles with.  My letter that we will be presenting to

the Edwards Aquifer Authority on January 31, summarizing

these problems, is over six pages long.  And that's

single spaced.  So we have a lot of issues.  But those

are the major problems.

          So at this point, I'll hand it over to Ann

Bright, who will discuss some legal issues.

          DR. McKINNEY:  Just to kind of follow up with

the dates again.  The Authority, you know, recognized

that they had some issues.  And they said, Look, we'll

pull it back and we'll work with this.  They're working

with us on the biological side to try to correct all

those type of things, which is a positive.  But they've

got a long way to go because it is so complex.

          MS. BRIGHT:  Good afternoon.  I'm Ann Bright,

General Counsel.  And I should first say that the bulk of

the discussion that I want to have with you today will be

in executive session, under the exception to the Open

Meetings Act, that allows legal consultations in

executive session.  But there are a few things I wanted

to go ahead and point out.

          First of all, the citizen's advisory committee,

as well as the biological -- the BAT -- advisory team --

they're both subject to the Open Meetings Act.  So all of

these meetings, all these discussions, have actually been

in public.  So a lot of the information that you're

getting today has been publicly presented.

          Dr. McKinney found this wonderful little slide

bulletin, about whether we can expect a grievance.  And I

think the answer is yes.

          There are a few things -- Section 83.020 is the

primary provision that is going to affect the Commission.

It provides that a member of the citizen's advisory

committee who feels that the plan was not developed in

accordance with the statute can file a grievance with the

Commission.

          There are a few things that are very clear

about this procedure.  The grievance has to be filed

within 60 days after the plan is finalized.  It has to

state the sections of the statute that were not complied

with, according to the grievant.  And it has to state the

facts that the grievant bases his grievance upon

          Once it gets to the Commission -- and the

section we're probably going to look the most at is

Section 83.020(c).  And there are a number of options

that have been discussed and can be discussed, in

connection with how the Commission handles grievances

under this section, including presentations before this

Commission, referral under the Administrative Procedures

Act under grievance to the State Office of Administrative

Hearings, or a combination of those.

          And there are legal consequences and legal

issues connected with all of those that will be discussed

more in providing legal advice to you.

          And that's pretty much it for my presentation,

my portion of this.

          COMMISSIONER MONTGOMERY:  I'm going to ask some

real basic questions, because I'm brand new on this one.

These committees -- we have appointed or will appoint?

          MS. BRIGHT:  The BAT and the CAC, they have

both been appointed.  They're required to be appointed --

the members are appointed by different groups.  The

Commission appointed a member to the biological advisory

team, which was Dr. David Bowles, to chair that.  Also

appointed was a member of the CAC, which was Mr. Herron.

          And the -- I'm trying to recall.  I believe

that the plan participant -- in this case, the Edwards

Aquifer Authority -- appoints a number of the members to

the citizen's advisory committee.  And I'm not sure about

the biological team.

          COMMISSIONER MONTGOMERY:  The individual

participants are stakeholders in that process, David?

          DR. BOWLES:  Yes.

          MS. BRIGHT:  Okay.

          DR. BOWLES:  For the biological advisory team,

the chairman of that by statute Senate Bill 1272 is

required to be coming from Parks and Wildlife.

          COMMISSIONER MONTGOMERY:  What is the

consequence of the grievance?  We hear it.  We act on it.

What is the consequence or the remedy for a grievance?

          MS. BRIGHT:  The consequence is that the plan

participant cannot seek the federal permit until -- if

there is a grievance that is filed, and the Commission

should decide ultimately that there is a problem with the

development of the plan, the plan participant cannot seek

the federal permit until it adequately addresses those

issues.

          CHAIRMAN ARMSTRONG:  It sounds -- do we have

any other questions from the commissioners?

          (No response.)

          CHAIRMAN ARMSTRONG:  We look forward to your

further information.  This is a very complicated issue

and not one that's likely to go away.  But we look

forward to wrestling with all that out.

          COMMISSIONER FITZSIMONS:  Wrestling?

          CHAIRMAN ARMSTRONG:  Wrestling with it.

          COMMISSIONER FITZSIMONS:  We might get an

alligator.

          CHAIRMAN ARMSTRONG:  We have some other items

on the Conservation Committee agenda.  But we're going to

postpone them until after lunch.  We are hungry.

          So I would like to announce that pursuant to

the requirements of Chapter 551, Government Code,

referred to as the Open Meetings law, an executive

session will be held at this time, for the purpose of

consideration of Section 551.071 of the Texas Open

Meetings Act regarding pending litigation and legal

advice, and Section 551.072 of the Texas Open Meetings

Act regarding real estate matters.

     (Whereupon, at 12:15 p.m., the hearing was

adjourned, to reconvene this same day, Wednesday, January

22, 2003, at 3:05 p.m.)

           A F T E R N O O N   S E S S I O N

                                                3:05 p.m.

          CHAIRMAN ARMSTRONG:  We are reconvening the

Conservation Committee, agenda item number four.  We will

have the status report on the cooperative agreement on

instream flow studies with the Texas Commission for

Environmental Quality, and Texas Parks and Wildlife, and

the Texas Water Development Board.  And Dr. Larry

McKinney and Kevin Mayes will brief us on this.

          DR. McKINNEY:  Chairman, Larry McKinney, Senior

Director of Aquatic Resources.  I'm just going to do a

brief introduction and turn it over to Kevin, who has

been doing the main work on this project we have here.

          I want to introduce this just by -- I'll give

you a little bit of history, I think, which sets the

background on what we're doing on this instream flow

studies.  Of course, we've been looking at determining

how much water we need into our estuaries, and our bays,

and our rivers to maintain their ecological health.  And

we finished a long series of studies on determining those

freshwater inflows on our bays and estuaries.

          I think that it really -- in the last couple of

years, and certainly in the last year -- has begin to hit

home with a lot of people about how important these

studies are, and how much attention they have garnered,

as we make some very important decisions about water

across the state, for example, the briefing we just gave

you on the Edwards Aquifer Authority.

          And one of the things that the legislature did

last session, in Senate Bill 2, was to direct our agency,

in conjunction with our other two sister agencies in

Water Resources, to do the same thing for our rivers as

we did for the bays and estuaries.

          And so what we have done -- and I want to very

much acknowledge the leadership of our chairman, and Bob

Cook, in helping to make sure -- working with the other

two agencies, the CDQ, TCEQ, and the Water Development

Board -- to work together on this and to make sure that

we learn the lessons of how we do our inflow studies, and

what to do and what not to do; to make sure that when we

complete these instream flow studies that they are going

to be very useful, the best science that's available; and

that all of the state agencies are right there at the

table so we can implement those and make the best use of

them.

          So that is what we are going to cover today.

Kevin is going to cover that.  By way of introducing

Kevin -- of course, we draw on lots of experts from

around the country and universities, to talk about

instream flow studies.  But we have them on our staff.

In fact, with Kevin, Dr. Randy Moss is here.  And Joe

Tringle [phonetic], our hydrologist, is also here.

          We have some of the best folks in the country

right on staff doing this.  In fact, Kevin is one of the

authors of this, which is basically the Bible, Instream

Flow Studies Across the Country.  So by way of -- I'm

telling you these guys know what they're talking about.

And we're going to benefit from that.

          So, Kevin, I'm going to let you go.  And I

think that's the button.  And tell them what we're doing.

          MR. MAYES:  Okay.  Dr. McKinney, Madame

Chairman, and Commissioners, my name is Kevin Mayes.  I'm

the team leader for the River Assessment Team, as part of

the Resource Protection Division.

          And last legislative session, there was Senate

Bill 2, which modified the water code to include a

section on the collection of instream flow data; and,

basically, just laying out the three state agencies

mentioned, would jointly establish and continuously

maintain an instream flow program to determine, you know,

how much water does a river need.

          And they gave us a timeline of, basically, the

end of 2010; and, you know, told us to develop a work

plan that prioritizes the studies; and set some

deadlines; and that these studies would be used in the

Commission's review of water rights, and their management

plans, and their basic transfers.

          So I'm going to talk mostly about that, what we

call the programmatic work plan.  It kind of lays it out,

the priorities, et cetera.

          MR. COOK:  Kevin, let me ask you to move that

microphone closer.  There you go.  Good.

          MR. MAYES:  Thank you.  The joint studies are

guided by an MOA, which was signed in October 2002 by the

three agencies and by this work plan, which we have a

final of the draft.  We're just kind of waiting on some

signature pages to get together on that before we finish

that.

          So that work plan, you know, was finished in

December.  And we're starting on another product that the

staff of the three agencies are working on, called the

technical overview, which is going to be more detailed in

its methodologies.

          So we have some time frames laid out in the

programmatic work plan, in some of the basins and sub-

basins that we want to do these studies in.  So we have

the schedule, you know, basically to hit these six

basins.  And that's based upon whether or not mother

nature cooperates.  And it's been part of the problem

with the Guadalupe River study that we've been doing

since '98 -- is we either have a drought or we have

floods.  And so we haven't been on the Guadalupe in a

year because of the floods in July 2002.

          We're looking at the Lower Guadalupe.  It's

ongoing.  We hope to have that one done by the end of

2004.  Some work's going on, on the Lower Brazos, but we

would need to start fresh on the Lower San Antonio, the

Middle Trinity, the Lower Sabine, and the Middle Brazos.

So, you know, one of these studies might take four or

five years to get accomplished.

          We came up with a second tier of studies, just

in case priorities changes, or, you know, additional

resources are made available.  We came up with a second

list and those include the Upper Guadalupe, the Neches

River, the Red River -- really a tributary to the Red

River, and the Upper Sabine, being upstream of Toledo

Bend.

          Two special studies include something on the

Sulphur River and then the Lower Colorado River -- kind

of a follow-up because there's already been an instream

flow done on the Lower Colorado.  We need to find out if

those numbers that have been implemented in the

management plan are being effective at protecting the

ecological goals that were set in that state.

          The scope of the studies, basically -- I don't

want to go into a lot of detail about these -- but, you

know, the biology.  We need to understand what species

we're dealing with.  And we need to understand the

patterns of flow in the river.

          We need to understand how those patterns of

flow affect the geomorphology, which is the transport of

sediment and the building of habitat in the river; the

water quality -- primarily factors like dissolved oxygen

and temperature -- and then, you know, a term that the

book refers to -- it's called connectivity.  And we're

talking about lateral connectivity and longitudinal

connectivity.  So you have to have connections in the

river system, both to the flood plain and upstream and

downstream, to try to maintain these ecosystems.

          So that slide there is a, basically, an oxbow

that's forming on the Lower Brazos.  And so that

connection to that oxbow -- between the river, and the

flow, and that habitat -- those are important areas.  And

we need to understand those connections.

          So for each one of these studies we have a plan

of attack.  And, basically, it's to come up with a study

design.  In that study design, we need to be able to

synthesize existing information, you know, gather some

baseline information on what species we're dealing with,

and what are the resources used, you know, the water

resource use as well.

          But then once we get that done, then we'll

start doing the actual evaluations.  And there's four of

those that we've categorized into physical processes,

which covers that geomorphology and connectivity, the

biology, water quality, and the hydrology, and the

hydrologics.  So that's actually -- you know, we're on

the ground collecting data that we need to develop some

models.

          And part of that model development is we're

going to have to integrate these different pieces, and

provide some interpretation of that information, and

develop a study report, and the recommendations on, you

know, how much water a river needs.  And then to follow

that up, once those numbers are implemented, you need to

do some monitoring and validation to see if you're

meeting your goals.

          The programmatic work plan also lays out what

the roles of the different agencies are going to be.

Some of them -- there was a natural fallout, you know,

primarily, Parks and Wildlife having the lead on biology,

and fish and wildlife-type resources.  A lot of the other

elements of the work plan, we assigned them to joint

responsibility because there was a lot of

interdisciplinary nature in those requirement of

multidisciplinary team of engineers, and biologists, and

hydrologists, and a geomorphologist to be able to

actually, you know, to handle those elements.

          There is a peer review component of this.  And

the part that's going to be peer-reviewed initially is

this technical overview that's going to describe the

means and the methods in much more detail than the

programmatic work plan is going to do.

          The National Academy of Sciences is going to

provide that first level of peer review on that technical

overview, which we plan to have done by the end of March.

So then we'll submit it to NAS, get some feedback on what

they think, if we're on the right track, or the wrong

track, or what we've forgotten, or, you know, what they

might think are unnecessary.

          The ongoing review, we hope to use the Instream

Flow Council, which is, you know, able to provide reviews

of study plans and reports.  Something, you know, if we

have new methods that are developed during the process of

this, then they can help us with that.  And also provide

expert assistance, if we have an issue that comes up

where we need to bring in somebody that maybe we don't

have the expertise somewhere.

          And then the final part is to have, basically,

ongoing involvement of our cooperators, river authorities

and other affected stakeholders.  That will be ongoing

throughout the process.  We want to bring them in at the

beginning and all the way through the end.

          So, basically, it's, you know, a strategic goal

with Parks and Wildlife to develop not only the

freshwater inflow numbers but also instream flow numbers

for rivers and streams.  And we instream flow biologists

think in terms of regimes, a water quality regime or a

water quantity regime.  A flow regime is necessary to

maintain these ecosystems.

          So, with that, I'm finished.

          DR. McKINNEY:  We'd like to answer any

questions.

          COMMISSIONER MONTGOMERY:  Quick question.  The

NAS -- who actually reviews it?  How does that work?

          MR. MAYES:  The National Academy of Sciences --

I believe, it has different compartments, or organized

departments.  There's a water resources department that

can handle this type of, you know, science and

engineering issue.

          COMMISSIONER MONTGOMERY:  I want to -- I'm sure

the Commission realizes the importance -- I want to

compliment you in taking this template to that level so

that we end up with very sound objective footing in this

process.  Because I think we all understand how

potentially contentious this whole area will get.  And

having a strong foundation with that seal of approval on

your methodology is a great route to go.

          DR. McKINNEY:  We'd like to take credit for it.

But a good part of it goes to our chairman at the end who

has helped on that very much, to get that done.  And we

work with the other agencies.  But she's been

instrumental in getting us on the inroads there, and

recognized early on how important it was to do it.  So we

do thank you on that.

          COMMISSIONER MONTGOMERY:  I hope we keep that

kind of standard with all our science and engineering.

          CHAIRMAN ARMSTRONG:  I want to mention here the

importance of the cooperation that we have received from

Wales Madden at the Texas Water Development Board, and

the executive director there, Kathleen White, Chairman,

Houston, and Margaret Hoffman, and Kevin at Water

Development Board, and, of course, our staff.

          I also want to compliment our staff.  I've only

been on the Commission for three years.  And not being a

scientist, it was very difficult for me to assess the

quality of our own science.  And I am very proud to say

that three years later my confidence in the work that's

done by Parks and Wildlife, the Water Development Board,

and the Texas Commission on Environmental Quality has

only grown.

          And I think the quality of the work you do is

supportable in every way.  That's not to say that science

is a static beast.  It's not.  It's dynamic.  It should

always be.  It should be encouraged to be as dynamic as

possible.

          But I think in learning some of the lessons

from the past, as you said, that the three agencies agree

up front on a process, a methodology, that not only they

can rely on -- and that is reviewed on a regular basis by

the National Academy of Science, by the science community

in general -- will only improve the quality of the

knowledge that we have in making tough policy decisions.

          And my compliments to the other agencies.  I

think everybody's working very well together.

          DR. McKINNEY:  Absolutely.  And we appreciate

those words for it all.  I think you're right on track

with it.  Thank you very much.

          COMMISSIONER FITZSIMONS:  Larry, I have a

question, or Kevin, whoever.

          DR. McKINNEY:  I'm sorry.

          COMMISSIONER FITZSIMONS:  When you're looking

at instream flow -- this is probably a pretty basic

question -- as to minimum requirements for biological

health in a stream, that's often -- is that different,

maybe, than the minimum in the estuary?  In other words,

one level of water is necessary to maintain the health of

the -- an estuary.  And a different level may be the

minimum necessary to maintain a freshwater river

ecosystem, or not.  Are they --

          MR. MAYES:  I believe that not only do you need

to look at the magnitude, but you have to look at the

timing of those flows as well.  The freshwater --

          COMMISSIONER FITZSIMONS:  The whole regime?

          MR. MAYES:  Yes, sir.  The timing of the flows

that are needed in the river.  You know, most fish spawn

in the springtime.  And the spawning can be triggered by

higher flow events that normally occur in the spring.  So

they've timed their reproductive strategies with higher

flow events.  And that higher flow, you know, is good

for, you know, that there's more habitat available for

the fry, that there's probably more protection from

predators during that time period when you have higher

velocity.

          So you have to look at the timing of the flows

in the river and the timing of the flows of the

freshwater inflows going into the bays and estuaries.  So

if you get a big slug of water going into the bay and

estuary, that's considered pretty good.  Because it

brings in a lot of sediments and nutrients.  But it also

is beneficial.

          But I don't think anybody's correlated that the

needs of a particular bay are the same as the needs of

the river system.

          DR. McKINNEY:  Historically, of course, they

were.

          COMMISSIONER FITZSIMONS:  Exactly.

          DR. McKINNEY:  Because rivers ran to the sea

and they all kind of formed together.  Where it's begun

to get disjointed -- and we see it in places like the

Colorado River and others -- is we manage the river

system, putting reservoirs in, and manipulate that water

where we capture floods and so forth.  Those things have

become more separated.  So you begin to look at -- okay,

what can you do to get a minimal amount of water to

sustain an estuary?  And how does that work with the

river?

          So at one time, it was the same thing.

          COMMISSIONER FITZSIMONS:  They were the same

number.

          DR. McKINNEY:  But it's growing apart.

          COMMISSIONER FITZSIMONS:  Well, once you

segment the river system, it's no longer the same number.

          DR. McKINNEY:  Just like on those ranches, when

you start managing something, you're going to be managing

it from then on.  You don't just let it go once you've

got into it.  It's hard to go back to let it go.

          MR. COOK:  I'd like to follow up a little bit

on the Chairman's comments and Commissioner Montgomery's

comments.  You know, the studies -- and I do, sir -- and

I have, likewise, learned to appreciate the value, the

importance of this science.  Water and the need for water

over the next several decades, we're all going to be

dealing with on a daily basis.

          And this data that we're talking about here,

this instream flow study data, and our basin-estuary data

are going to be questioned every day by people, by

cities, by users, whether they're fisherman or hunters.

You know, is that a good study?  Is that good data?  Is

there better data?  Is there a different way we should

have done it?

          So this review, right now, early in this

process, and this agreement between these three agencies,

I think is something that our legislature will benefit

from.  I think the resources will benefit from it.  And

it will help us, I think, as far as the credibility.  You

know, we know it's good information.  But that peer

review, that holding it up to the light, right from the

very beginning, is, I think, very important from the

standpoint of standing the challenges that we're going to

have almost daily from now on.

          DR. McKINNEY:  Thank you.

          (Whereupon, this Conservation Committee meeting

was concluded.)

                 C E R T I F I C A T E



MEETING OF:     Texas Parks and Wildlife Department

               Conservation Committee

LOCATION:      Austin, Texas

DATE:          January 22, 2003

          I do hereby certify that the foregoing pages,

numbers 1 through , inclusive, are the true, accurate,

and complete transcript prepared from the verbal

recording made by electronic recording by Penny Bynum

before the Texas Parks and Wildlife Department.






                                              02/12/03
                         (Transcriber)         (Date)

                         On the Record Reporting, Inc.
                         3307 Northland, Suite 315
                         Austin, Texas 78731



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