Conservation Committee

Wednesday, 9:00 a.m., April 2, 2003

Commission Hearing Room
4200 Smith School Road
Austin, TX 78744
Item
No.
Subject Public Hearing
Agenda Item No.
  Approval of the Committee Minutes from the previous meeting.  
  Summary of Minutes  
1. Chairman's Charges (Oral Presentation) Committee Only
2. Land Sale – Tarrant County
Staff: Jack Bauer
7
3. Land Sale – Harris County
Staff: Jack Bauer
8
4. Land Donation – Harris County
Staff: Ted Hollingsworth
9
5. Other Business  

Summary of Minutes
Texas Parks and Wildlife Commission
Conservation Committee
January 22, 2003

BE IT REMEMBERED that heretofore on the 22nd day of January 2003, there came to be heard matters under the regulatory authority of the Parks and Wildlife Commission of Texas, in the commission hearing room of the Parks and Wildlife Headquarters complex, Austin, Travis County, Texas, beginning at 11:05 a.m., to-wit:

I. COMMISSION ATTTENDANCE:

Katharine Armstrong, Chairman
Ernest Angelo, Jr.
John Avila, Jr.
Joseph Fitzsimons
Alvin L. Henry
Philip Montgomery, III
Donato D. Ramos
Kelly W. Rising, M.D.
Mark E. Watson, Jr.

II. APPROVAL OF MINUTES: The minutes of the last committee meeting were approved.

III. THE FOLLOWING ITEMS WERE PRESENTED FOR COMMITTEE ACTION:

1. BRIEFING – CHAIRMAN’S CHARGES
Presenter: Robert L. Cook
Mr. Cook stated that the Committee would be hearing two briefings on some of the many water resource issues facing the Department. Dr. McKinney will talk about our regional habitat conservation planning and the Edwards Aquifer Association’s use of that process; then he and Kevin Mayes will have an update on the status of our cooperative agreement on instream flow studies.

2. CCC 70th ANNIVERSARY CELEBRATION IN 2003 RESOLUTION
Presenter: Walt Dabney

Mr. Dabney briefed the Committee on the 70th Anniversary of the Civilian Conservation Corps, which occurs this March. The CCC was established by President Roosevelt and crews worked extensively throughout Texas in many of our State Parks. The CCC was set up to help get the nation out of a very difficult time when many people could not find jobs. The participants learned new skills from furniture making to stone masonry. They built beautiful facilities in both state and national parks across the nation. Many later went from the CCC to soldier positions in the Second World War.

Mr. Dabney showed a slide of one of the restored rooms at Indian Lodge and explained that half of the rooms at the Lodge were offline during their renovation. He pointed out this will increase revenue. He also showed many of the CCC buildings that have been restored and stabilized, using Prop 8 money and previous bond money. Approximately 30 state parks benefited from the CCC.

Mr. Dabney explained that during the public meeting on January 23rd he would to do a quick presentation on the overall CCC and then introduce two veteran CCC members who would then share their experiences on what was going on in the country at that time, what it meant to them, and some of the projects they worked on. After that there would be an actual resolution to be signed, honoring the CCC for what they did in Texas and across the nation. Another resolution would be sent to the Legislature with the hope that it will be acted upon. Also, there will be a function at Bastrop in March to which the Commissioners will be invited.

3. REGIONAL HABITAT CONSERVATION PLAN
Presenters: Larry McKinney, David Bowles, Ann Bright

Dr. McKinney discussed the regional habitat conservation plan proposal by the Edwards Aquifer Authority and why we’re involved. In 1992 the City of Austin went together with a number of other local government units to develop, 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 process there were a number of landowner concerns about the process of developing and implementing this regional plan. It prompted legislative action to provide a safety valve to address those concerns in any future plan—in other words, the Texas Parks and Wildlife Commission is that safety valve.

Eligible individuals of a citizen advisory committee, as part of this plan, can bring grievances before the Commission regarding the regional plans. The Commission is directed to review grievances and if it finds they have merits, then it is directed to hold public hearings. After the public hearings, the Commission is directed to vote on the grievances and then instruct plan participants to take certain actions.

Dr. McKinney stated that the first regional habitat conservation plan subject to this law from 1992 is the Edwards Aquifer Regional Habitat Plan. The plan itself encompasses most of lower central Texas. Parks and Wildlife Code requires several actions on our part such as the formation of a Biological Advisory Team (BAT), which is chaired by Dr. David Bowles and aided by Bob Sweeney with legal advice. Thanks to them, the process of working through the advisory team has been very productive. The results have been useful and helpful to the Edwards Aquifer Authority and others.

The Code also directs the establishment of a Citizens Advisory Committee, 33 percent of which must be agricultural landowners, with one member from Parks and Wildlife--John Herron filled that role. John has helped to move the process forward.

The Edwards Aquifer Authority was established by S.B. 1477 in 1993, and assigned a number of difficult tasks. The one discussed today is to address the questions of preserving endangered species habitat. The southern segment, that portion dealing with San Antonio, is the focus of the Regional Habitat Conservation Plan (RHCP). Dr. McKinney showed a diagram of the Edwards Aquifer with recharge and artesian zone where water comes up briefly. The general flow of the water is from west to east and downhill, with manifestations in Comal and San Marcos Springs. From a cross-sectional standpoint, the city of San Antonio floats on top of the aquifer. The aquifer begins far out in West Texas, in Kinney County. The impact of pumpage from the aquifer (primarily for the city of San Antonio but also for agricultural and other uses), is the impact on the spring flows at Comal and San Marcos.

Dr. McKinney stated that the regional habitat plan is a framework for the Authority to apply to the U. S. Fish and Wildlife Service, under the auspices of the Endangered Species Act, for a Section 10 permit that would allow for incidental take of several endangered species from that southern portion. There is a long list of species that live in the aquifer and the springs that come out, and the rivers that those springs feed. Dr. McKinney added that this is a very complex biological issue, and there are endangered species associated with every aspect of it. The Edwards Aquifer is 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 the Authority. All of Texas’ largest springs have their origins in the Edwards Aquifer and nearly all of them have some endangered species associated with them. Under normal conditions, the Aquifer provides about 30 percent of the instream flows for the Guadalupe River. However, during drought periods, almost 70 percent of the river flow in the Guadalupe comes out of those springs. There are endangered species issues associated with that. More importantly, the Guadalupe River and its tributaries, the Blanco, San Marcos and Comal, have a tremendous impact on everyone downstream—industry, agriculture and municipalities. The decisions that are made in San Antonio in regard to pumping out of the Edwards Aquifer don’t just affect the city of San Antonio or endangered species. Because of the water coming out of those springs and how they feed the river, it affects everything downstream.

Dr. McKinney pointed out that the Guadalupe River is the primary source of freshwater inflows to San Antonio Bay. As a result of TPWD’s 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. When that is cut back, even by a small amount, there are impacts on certain groups of species, such as brown shrimp and blue crabs. With an effect on blue crabs, there is an effect on another endangered species such as the whooping crane. This whole issue has been the basis of the San Marcos River Foundation (typically called the SMRF Water Rights Permit), which again has the attention of the legislature. That permit is involved and related to whatever the Edwards Aquifer Authority does.

Dr. McKinney discussed some of the applications of this management issue, along with the challenges. The RHCP has five management alternatives. All of them have some pumping limit stating how much maximum per year pumping can be taken out of the Aquifer. They also have a plan or an approach to deal with drought situations—if we enter a drought at some point there is a trigger that will limit, or cap, or reduce, that pumping. Also, each of the alternatives talk about how to mitigate for the adverse impact on the springs and endangered species. As a history, Dr. McKinney pointed out that in over ten years of pumping they have pumped an average of 327,000 to 494,000 acre-feet per year, with a median of 411,000 AFY. The maximum pumping they recorded was 542,000 acre-feet per year. Comal Springs is the springs used as a bellwether; there was a cessation of flows in Comal Springs in 1990 when pumping rates were at 489,000 acre-feet. There were also impacts in 1996 when the pumping was around 400,000 acre-feet. The legislative cap on the pumping is around 450,000 acre-feet.

TPWD works closely with the Authority and they’re doing a good job of putting information together, with alternatives. There are going to be some tough decisions to make—discussions will be held about what the pumping cap should be—the maximum level—and how it affects the springs. The next issue will be, 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 there? How do we deal with that plan, to begin to limit pumping when it needs to be limited? The question, "What is the acceptable risk for Comal Springs, or all the springs, going dry?" will be answered by the U. S. Fish and Wildlife Service. 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 U. S. Fish and Wildlife Service might be willing to sign off on, to issue an incidental take permit? And if they do, what are the appropriate mitigation options to compensate for the take that’s going to occur with those species?

There was discussion regarding the definition of an acre-foot of water. Dr. McKinney described it as 326,000 gallons, or one foot of water on an acre of land. He said another way to look at it is the amount of water that a family of six would require for a year’s use.

Dr. McKinney then introduced Dr. David Bowles, Chairman of the Biological Advisory Team (BAT), to give a summary of the issues discussed in their first meeting. He explained that the BAT consists of six scientists from all aspects, working independently.

Dr. Bowles discussed the independent and individual reviews of the Regional Habitat Conservation Plan. The BAT unanimously concluded that the Plan was inadequate for its stated goal of protecting or conserving the endangered species habitat or the springs at Comal and San Marcos, and the downstream interests to the Gulf Coast estuaries. Following their reviews, the BAT asked the Edwards Aquifer Authority to strongly consider revising the Plan in order to give a better sense of stewardship for those systems, and they have agreed to do so.

Dr. Bowles then pointed out the major problem areas they identified. The biological goals were not met and the instream flow impacts were not considered, particularly for the Cagle’s Map turtle and downstream user interests such as the major chemical companies along the lower Guadalupe Riverbank. The RHCP did not adequately consider the freshwater inflows into the San Antonio Bay system in order to preserve the brown shrimp, crab and various fish. The mitigation strategy for pumping limits they derived is considered unrealistic since it consisted of captive breeding programs for endangered species and only one of the species listed can be successfully reared in captivity at this time. There were also several adaptive management strategies formulated to deal with the pumping levels they selected that are just in the concept phase of development—they’ve never been tested or would be extremely expensive to implement. One of these was called "Spring Flow Augmentation," wherein they would artificially charge the springs during times of drought. The scientific community has previously indicated that is not a credible option since it has many problems associated with it that could actually make the situation worse rather than better. Finally, the Plan contained an economic analysis but only as to how it would affect irrigators and water users south or west of San Antonio; it failed entirely to consider the economic impacts on downstream interests, including commercial, sport fishery and others.

Dr. Bowles said the letter to be presented to the Edwards Aquifer Authority on January 31st listing the problems is six pages long, single spaced.

Dr. McKinney explained that the Authority recognized there were some issues to be resolved and they’re working with everyone on the biological side to correct those things. It is, however, very complex.

Ms. Ann Bright then discussed how Section 83.020 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. It has to be filed within 60 days after the plan is finalized, state the sections of the statute that were not complied with (according to the grievant), and state the facts that the grievant bases his grievance upon. Once it gets to the Commission, Section 83.020(c) provides a number of ways in which the Commission may handle the grievance, including presentations before the Commission, referral under the Administrative Procedures Act of a grievance to the State Office of Administrative Hearings, or a combination of both. Ms. Bright stated there are legal issues and legal consequences with each of those procedures, which she would discuss with them in Executive Session and provide them with legal advice.

Discussion was held regarding how members of the different committees were appointed and the fact that they are stakeholders in the process. The question was asked what the consequence or remedy was for a grievance, with the answer being that the plan participant could not seek the federal permit if a grievance is filed and the Commission ultimately decides there is a problem with the development of the plan. The plan participant is required to adequately address the issues.

The Committee broke for Executive Session at 12:05 p.m. and reconvened at 3:05 p.m.

4. STATUS OF COOPERATIVE AGREEMENT ON INSTREAM FLOW STUDIES WITH TCEQ AND TWDB
Presenters: Larry McKinney, Kevin Mayes

Dr. McKinney gave the Committee some background regarding the instream flow studies. He stated staff has conducted a long series of studies to determine the amount of water needed in bays and estuaries in order to maintain their ecological health. People have begun to realize how important these issues have become, with important decisions to be made about water across the state. Last legislation session, S.B. 2 directed TPWD, along with TCEQ and TWDB, to do the same instream flow studies for rivers that were done for bays and estuaries.

Dr. McKinney acknowledged the leadership of Chairman Armstrong and Executive Director Cook in working with the other two agencies to make sure that these studies are useful, the best science that is available, and that the studies are agreed upon by the participants so that they could be implemented to make the best use of them.

Kevin Mayes, Team Leader for the River Assessments Team of the Resource Protection Division, discussed S.B. 2 which modified the water code to include a section on the collection of instream flow data. This directs that the three state agencies mentioned would jointly establish and continuously maintain an instream flow program to determine how much water rivers need. The deadline is December 31, 2010 to develop a work plan that prioritizes the studies, setting interim deadlines, and then the studies would be used for TPWD Commission’s review of water rights, as well as management plans and basic transfers.

The joint studies were guided by an MOA signed in October 2002 by the three agencies. The work plan was finished in December, with the exception of some signature pages. The next step in the process is called the technical overview, which will contain detailed methodologies. The timeframes were determined to study six basins, barring droughts or floods. One study might take four or five years to accomplish.

The group also decided on a second tier of studies, in case priorities change or additional resources are made available. These include the Upper Guadalupe, the Neches River, a tributary of the Red River, and the Upper Sabine (upstream from Toledo Bend). There are also two special studies, one for the Sulphur River and the other a follow-up to the flow study previously done on the Lower Colorado River.

Mr. Mayes then discussed the scope of the studies, such as understanding what species are involved, patterns of flow in the rivers, how those patterns affect the geomorphology (which is the transport of sediment and the building of habitat in the river), the water quality (factors such as dissolved oxygen and temperature), and connectivity—both to the flood plain and upstream and downstream, in order to maintain the ecosystems. The next step, to design a study, would synthesize existing information by gathering baseline information on the species and the resource issues involved. After that, the actual evaluations would begin in order to develop the models. These are categorized into four processes: Physical (which covers geomorphology and connectivity); biology; water quality; and hydrology – the hydraulics. Part of that model development will be to integrate the different evaluations, interpret the information, and develop

a study report with recommendations on how much water a river needs. Once those numbers are implemented, the next requirement would be to monitor and validate, determining if the goals are being met.

The work plan describes the roles of the different agencies. TPWD primarily has the lead on biology and fish and wildlife-type resources, along with other elements that require joint responsibility for multidisciplinary teams of engineers, biologists, hydrologists and a geomorphologist. Mr. Mayes talked about the three levels of peer review involved, the first being the technical overview which describes the means and the methods in more detail than the programmatic work plan, to be reviewed by the National Academy of Sciences by the end of March. The ongoing review, study plans and reports, new methods, expert assistance, etc. will be conducted by the Instream Flow Council. The final role is ongoing involvement throughout the process with our cooperators, such as river authorities and other affected stakeholders. TPWD’s strategic goal is to develop the freshwater inflow numbers and instream flow numbers for rivers and streams.

Chairman Armstrong stressed the importance of the cooperation received from staff at the Texas Water Development Board and her confidence in the quality of TPWD’s science. She stated the fact that the three agencies agreed up front on the process, to be reviewed regularly by the National Academy of Science and the science community in general, would improve the quality of the knowledge needed to make tough policy decisions.

Commissioner Fitzsimons asked if the minimum requirements for biological health in a stream are different from the minimum requirements in an estuary, when looking at instream flows? Mr. Mayes replied that the timing of the flows in the river and the timing of the freshwater inflows going into the bays and estuaries are contributing factors. Dr. McKinney pointed out that building reservoirs and manipulating the water to capture floods etc. has tended to separate the needs of the bay areas versus the needs of the river systems.

Mr. Cook emphasized that he realized the instream flow study data and basin-estuary data will be questioned in the future by cities and users, and he felt that this review and the agreement between the three agencies would be of benefit to the legislature and the resources. He said this would help our credibility and the peer review right from the very beginning is important from the standpoint of defending the challenges of the future.

IV. The meeting recessed and then adjourned at 3:30 p.m.


Committee Agenda Item No. 1

Conservation COMMITTEE
Chairman's Charges
April 2003

(This item will be an oral presentation.)


Committee Agenda Item No. 2
Presenter: Jack Bauer

Conservation Committee
Land Sale – Tarrant County
April 2003

(This is Public Hearing Agenda Item No. 7.)


Committee Agenda Item No. 3
Presenter: Jack Bauer

Conservation Committee
Land Sale – Harris County
April 2003

(This is Public Hearing Agenda Item No. 8.)


Committee Agenda Item No. 4
Presenter: Ted Hollingsworth

Conservation Committee
Land Donation – Harris County
April 2003

(This is Public Hearing Agenda Item No. 9.)



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