Texas Parks and Wildlife Commission
Conservation Committee

Aug. 25, 2004

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744

BE IT REMEMBERED, that heretofore on the 25th day of August, 2004, 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:

• Joseph B.C. Fitzsimons, San Antonio, Texas, Chairman
• J. Robert Brown, El Paso, Texas
• Ned S. Holmes, Houston, Texas
• Alvin L. Henry, Houston, Texas
• Peter M. Holt, San Antonio, Texas
• Philip Montgomery, Dallas Texas
• John D. Parker, Lufkin, Texas
• Donato D. Ramos, Laredo, Texas
• Mark E. Watson, Jr., San Antonio, Texas

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

Robert L. Cook, Executive Director, and other personnel of the Texas Parks and Wildlife Department

P R O C E E D I N G S

COMMISSIONER MONTGOMERY: The Conservation Committee, the first order of business is the approval of committee minutes. They've already been distributed. Is there a motion for approval?

COMMISSIONER HOLMES: So move.

COMMISSIONER MONTGOMERY: A second?

COMMISSIONER RAMOS: Second.

COMMISSIONER MONTGOMERY: Motion by Commissioner Holmes, second by Commissioner Ramos. All in favor?

(A chorus of ayes.)

COMMISSIONER MONTGOMERY: All opposed? Passes unanimously.

Mr. Chairman, Committee, Item Number 1 of the Chairman's Charges.

Mr. Cook.

MR. COOK: Thank you, sir. Just a couple of real brief notes. One, on our science review, I — as you know, this is something been important to me for a long time. The external review of inland and coastal fisheries science-based assessment programs by a team of science, scientists, assembled by the American Fisheries Society has recently begun.

The review team has reviewed all pertinent manuals and documents provided by the two divisions. From those documents the team derived discussion points used during a site visit with staff from both divisions, along with executive leadership.

The team leader, Dr. Rich Noble, reports the team is on track to complete the first project milestones due at the end of August. Final report of the science review of these two divisions and their work is due at the end of January 2005.

I'll also report to you that the Wildlife Division and the State Parks Division, who's also going under a very, very similar review by the Wildlife Management Institute. A team of folks put together by the Wildlife Management Institute, completely independent, completely from the outside, doing that same thing — looking at our procedures, our manuals, how we do our work, what we do with that data after we collect that information, how it's collected, how it's used.

Their final — they've also been down for a couple of visits reviewing all those documents, talking with people, and their final report is also due January 31.

In addition, I mentioned to Doc — I asked Doc this morning about we are just initiating kind of a stake holder review in our bay and estuary studies. As you know, the National Academy of Sciences is deeply involved in the review of our instream flow study methods and mechanisms and all that.

And we should be getting that information — I believe that report — in October. So we're — and we're initiating the stakeholder process in our bay and estuary studies in Galveston Bay. So we are really rolling in this science review.

Got great people, some of the best, absolute best, looking at how we do our science, how we utilize that information, is there a better way, comparing us to other similar organizations, and I think it's going to go very well.

Under seagrass conservation, the Coastal Fisheries Division has been working with a seagrass conservation task force to review the current seagrass conservation zones, the effectiveness of ongoing conservation initiatives, and any needs for modifications.

On today's committee agenda, Agenda Number 2, Dr. McKinney will update you on these efforts.

COMMISSIONER MONTGOMERY: Thank you, sir.

Any questions or comments on that?

Will we get a briefing upon the completion of those reports?

MR. COOK: From the science review, you bet. Absolutely.

COMMISSIONER MONTGOMERY: Any other comments on the seagrass?

Dr. McKinney, Seagrass Conservation.

DR. McKINNEY: Mr. Chairman, members, for the record, I'm Dr. Larry McKinney, Director of Coastal Fisheries.

With me is Dr. Bill Harvey who will be presenting — making the presentation today, so I'll let him get started.

DR. HARVEY: Thank you, Larry.

Members, Mr. Chairman, I'm Bill Harvey. What we'd like to do today is provide you a briefing in this item on the seagrass conservation efforts, particularly as these relate to propeller scarring, and to request permission of the Chairman to publish a rule-making proposal for the purpose of seeking public comment regarding management of boat traffic in sensitive seagrass areas.

As a quick background, there are five species of seagrass in Texas. The species of particular concern to us is a species called turtlegrass. Very slow-growing species, about five to eight years once it's been disturbed.

And this particular seagrass species is characteristic of stable ecosystem. Seagrass is — all seagrasses, all types of species, are very important as nursery areas. There's some very persuasive research which suggests that high survival, for example, of spotted sea trout, red drum larvae, and fingerlings occur in and around seagrass beds.

They're very important for substraits, stabilization and water clarity, and most importantly, perhaps, at least for the purposes of this briefing, they're especially susceptible to propeller scarring because they grow in very shallow water.

In 1999 the Department published a seagrass conservation plan for Texas, and this was one part of a larger comprehensive plan. It was directed in Chapter 14 of the Parks and Wildlife code regarding state-owned wetlands, inland state-owned wetlands conservation plan.

Under the authority granted in Chapter 81 of the code, the Commission established the Redfish Bay and Nine-mile Hole State scientific areas in June 2000 for a five-year period to study different mechanisms for managing and evaluating seagrasses.

The Redfish Bay State scientific area is located within a triangle roughly bounded by Port Aransas at the apex, Rockport through a base at Aransas Pass to Ingleside and then again back to Port Aransas. Again, this is the midcoast area just a little bit north of Corpus Christi in part of the Aransas Bay system.

Within that, we established three voluntary prop-up zones where we ask anglers, boaters, to raise their propeller as they entered these areas and to traverse them either through drifting, poling, or using the trolling motor.

We also hoped that we would have good voluntary compliance with these no prop areas, and we based that on extensive education effort. We assigned every one of these areas and also areas close by which were shallow water areas to help direct boat traffic through them.

Our Communications Division was very helpful in helping us with press releases, video news releases, magazine articles, and in producing the 20-minute boating video, which we've given each of you a copy today.

The Coastal Bend Bay and Estuaries Program produced several thousand bay-users' guides which outlined the importance of seagrass and also the location of these voluntary prop-up zones and helped us distribute those.

We produced maps at each of the boat ramps in the area which showed the areas in question. All our paddle trail maps also included the prop-up zone, so we feel like we did a good job in getting the word out about the importance of these resources and the importance of operating boats responsibly in them.

Four years into this project, the voluntary prop-up zones have not been very effective. In fact, over the last three years of monitoring, we have seen no compliance, zero compliance, with voluntary provisions for people who actually enter those zones either to run through them or to fish them.

Our aerial photography, and we'll show you some of that as we go along, is very persuasive in suggesting that prop-scarring is persistent and that it is cumulative in impacts. In other words, the scars that appeared several years ago are still there today, and it appears that these are accumulating.

Also, research has demonstrated that restoration — in other words, trying to go back and replant seagrasses in existing prop-scars — is not feasible.

I'm going to show you a little bit of aerial photography. This is from one of the three voluntary prop-up zones. It's located at the intersection of the Gulf Intercostal Waterway and Aransas Channel, just a little bit east of Calm-down Harbor in Aransas Pass.

I've indicated the site here as Site 1, and we're going to show you an aerial photograph of that. This is a 2.4-acre site in the Terminal Flat, and this is a 2002 aerial photograph. All the identifiable prop scars are on this slide in purple.

Again, this suggests that the prop-scarring is cumulative, and we can identify 65 — at least 65, perhaps more — identifiable prop scars in this 2.4-acre area, some of which are over 400 feet long.

And I'd like to point out that this particular slide, which is this graphic in terms of the fragmentation of the seagrass bed, this is not a typical of Terminal Flat. In other words, we've not picked one area that's particularly worse just to show you.

We scanned this entire flat. This is typical of the entirety of that area. Some of the things we've heard the last four years is that prop-scars recover quickly once they're put into place. Again, in this slide, all the purple scars are at least 12 months old; in other words, scars that we could identify in our 2001 aerial photography and were still present in 2002.

And again, this suggests that the scars are persistent. In other words, they are cumulative. We also hear that — we've heard that these voluntary zones work, but again, this 2.4-acre parcel of the Terminal Flat, all the red scars here occurred between 2001 and 2002.

In other words, as we look at the 2001 aerial photography in this area, these scars are not present. In 2002 they are. So fundamentally, this proposal would change these voluntary areas to mandatory no-prop areas for a period of five years and that we would during that time continue to focus on habitat, research regarding seagrasses there, and as Larry would say, the functional mechanics of how we would do this.

In other words, what's the best way to put signs to — in these areas to direct boaters through there. What's the best way to get the information out. What's the best way to help our law enforcement officers enforce this.

COMMISSIONER BROWN: You're talking about only this area, this area right here?

DR. HARVEY: Yes, sir. Three of them.

COMMISSIONER BROWN: Are we going to —

DR. HARVEY: I'll show you each of these as we go along. The first of these areas is an area that's called Estes Cove. It's the northernmost extent of Estes Flats. We would propose that the more south end easterly of these two coves be set aside as a seagrass conservation area such that use of propellers in this zone would not be allowed, with the exception of a running lane along the northwest shoreline which would allow people to drift into this flat and then run out.

With a prevailing southeast wind, you can come almost anywhere along the boundary of this particular area, drift into it, with a separate running lane there which would allow people to exit.

Currently, the second of these two coves is a voluntary prop-up zone, and we would propose to remove any sort of restriction or any kind of designation for that area whatsoever.

At the Terminal Flat, which is probably the largest and most substantially-fragmented turtlegrass bed in this area of Redfish Bay, again, at the Intercostal Waterway and Aransas Channel intersection we would propose that the entirety of this area be set aside as a seagrass conservation area and mandatory no-prop zone with two running lanes, which would allow, again, access into and out of this particular area with the least threat to the existent seagrasses there.

Brown & Root Flat, which is located just south of the Highway 361 Causeway which connects Aransas Pass and Port Aransas, has also a very large and extensive turtlegrass flats, particularly on the southern end of Brown & Root and around the margins.

We would propose that these areas be set aside as mandatory no-prop — as a mandatory no-prop zone. However, this sort of confirmation of Brown & Root Flat allows access from the south and from the north, and it's deep enough in the center that one can navigate this flat effectively without any substantial threat to the seagrass resources there.

So — and if we had designed a flat to set up to allow people to come in, operate there and then run out, Brown & Root would certainly be it. And then we would maintain this area as a running zone.

So the areas — only kind of the periphery would be set aside as mandatory non-prop zones. We would propose no changes to the existing Nine-Mile Hole State scientific area or to the Lighthouse Lakes area, which is part of the Redfish Bay State scientific area.

Although there are constituent interests in both of these sites who are interested in developing long-term management plans. We'd mention, too, that the State scientific area designation for both Redfish Bay and Nine-Mile Hole sunsets in 2005. That was part of the provisions when these were established by the Commission in 2000.

COMMISSIONER BROWN: The mandatory no-run zone in Nine-Mile Hole expires in 2005?

DR. HARVEY: Yes, sir.

COMMISSIONER BROWN: The other question I have, because I've fished Nine-Mile Hole a lot but also have a jet-drive boat — now, I think the way that the definition is, it's a power boat. In other words, if I run in there in a no-run zone with my jet drive, I'm still in violation. Is that —

DR. HARVEY: That's correct. Yes, sir.

COMMISSIONER BROWN: I mean, so it's not prop because I don't have a prop.

DR. HARVEY: That's correct.

COMMISSIONER BROWN: You know — so it's a power boat running in the no-run zone?

DR. HARVEY: When the Commission established that, Commissioner Brown, that provision was put into place. And really, the idea there was a little bit different. The Nine-Mile Hole State scientific area was more an experiment to see if by controlling boat traffic, you could actually improve the fishing experience.

COMMISSIONER BROWN: The other thing about Nine-Mile Hole is there's probably 25 people that fish it. I mean, it's a long way down there. It's basically unenforceable. I mean, you know, from a manpower standpoint, I don't know how we could enforce it.

So anyway, I have a lot of questions about that but —

DR. McKINNEY: As a matter of fact, we — when we laid out these proposals to go back and look at it, we were going to drop the Nine-Mile Hole altogether because for the reason you talked about. We couldn't do any research down there. It was too far, especially with limited resources we had, we just couldn't do the research work that we're doing in the other places, because you remember that these areas are still research type.

I mean, we're still kind of learning on these things. So we were going to drop that and then not do it. Well, we had a group of folks come up and say, No, we want to keep that Nine-Mile Hole as it is. We like it.

There have been either three or five citations given down there. One has gone forward with it. Our law enforcement guys, in talking to them, they seem to work with it fine. What we told these folks are that, Look, you guys have — you have a couple options here.

One is that if you want to put together a research proposal, go to UTMSI, the University of Texas or A&M, and come back with a research proposal that you'll fund and they'll do. It's a legitimate piece of research. We can always learn some things there.

Then bring that and lay it in front of the Commission. That's a proposal that certainly we could consider for an extension of that period of time for five years or whatever, whatever they want to do that.

Or — which they brought up, they have said they may go to the Legislature to seek designation there, and that's their deal because we have no authority to take that kind of action. The State scientific areas are for protection of habitat and doing research. That's what we're interested in.

If we ever wanted to take these things further because they were needed for some reason, like a conflict or things, it would take other actions. So that's basically what we told them, and we also told the group — there's a group that Dr. Harvey alluded to in Lighthouse Lakes that were interested in doing a management plan there.

And we basically said, Look, our focus right now is on — as we've showed in the slide, is on habitat, the turtlegrass. We're going to do work in there to protect that particularly. We do want to look at that kind of function of mechanics and how you do that type of thing.

But it would be interesting, because we're going to have to deal with conflicts in the future of resource users. We're doing it now in other places, but as I told them, If you — if those of you who are interested in that Lighthouse Lakes, you get together with the duck hunters and the other users and came up with a plan, back to us with a plan of how you could make best use of that area and not get into conflicts, not run over each other with boats and make it easier, our Commission would listen to that. I'm sure they would.

So y'all go forward and do it. You have until September 2005, when these areas sunset — which all sunset means is that we lose — the Commission loses its rule-making capability to take rules in those particular areas. That's all it is. That's where we are.

COMMISSIONER FITZSIMONS: What's the status of the research you did in Nine-Mile Hole?

DR. McKINNEY: Well, we never got much of anything done there, because as we were saying, this was right when the budget cuts just came out. I lost my seagrass coordinator. We got into job freezes and all that.

And so frankly, we really didn't do — we didn't do anything down there except establish them. We worked a little bit with the National Seashore. They established some areas down there, too, but basically, we just let it set there. Now, the function we —

COMMISSIONER FITZSIMONS: What's the status — well, what research is there to show the benefit of the no-prop in the seagrass, as far as restoration and habitat?

DR. McKINNEY: Well, of course, keep in mind that the mandatory thing there, that was not one of our seagrass areas that we were dealing with. People wanted to try that just to see if it could help fishing, so that was really the folks that — the fishing folks. We didn't do any —

COMMISSIONER FITZSIMONS: But you don't have any data necessarily to support the benefit, Bill? Is that right?

DR. HARVEY: In the Nine-Mile Hole, Mr. Chairman?

COMMISSIONER FITZSIMONS: Yes.

DR. HARVEY: No, because again, the Nine-Mile Hole really was not about protection of seagrasses. That's about 36 square miles of the most unpredictable [indiscernible] habitat on earth. I mean, it's there one day and it's gone the next.

COMMISSIONER BROWN: It comes and goes without any explanation as to why it comes and goes. Is that comment correct?

DR. HARVEY: You're right, Commissioner Brown. Two years ago, if you're familiar with the Hole, almost that whole area north of the 203 Channel was just luxuriant with seagrass, and it's all gone. And the area south of there, which had none, is luxuriant now. So —

COMMISSIONER FITZSIMONS: And the Lighthouse Lakes, for instance, do you have much data about the improvement in habitat?

DR. HARVEY: The Lighthouse Lakes is an interesting area in that. It's almost self-regulating. It tends to be so shallow most or much of the year, it's very difficult to enter there. There's not a lot of prop-scarring in Lighthouse Lakes, although there's some.

The real issue there is it's a very small kind of confined area that has grown tremendous in popularity in the last four years since we established those paddling trails there, and now —

COMMISSIONER FITZSIMONS: It's made for kayaking.

DR. HARVEY: It's perfect for it.

COMMISSIONER FITZSIMONS: We don't want it mandatory. Do we have another mandatory that's had any real —

DR. HARVEY: Trial.

MR. COOK: — trial as far as grade. I mean, some — it's hard to make policy decisions when you haven't tried it where you're doing the research.

COMMISSIONER BROWN: We tried the voluntary —

DR. McKINNEY: That's the problem is that you guys — what was affecting us, we tried it and it wasn't effective, so we have no results.

COMMISSIONER BROWN: The no-prop zone is really has to be defined, because you can end up a lot of times violating the law because those things get knocked down. You don't even know where it is, and you're — not intentionally, you're trying to be compliant, but without somehow truly marking and defining and maintaining that, you can have issues there.

DR. HARVEY: That's correct.

DR. McKINNEY: That's the mechanical function issue that we're talking about. We've got to work with our law enforcement to figure out can you do it, is it possible, how do you do it. That's what all this is about.

COMMISSIONER RAMOS: And even from an enforcement standpoint, it seems to me that if you have areas that are that remote, and if you don't enforce it, then you encourage people just — they just ignore it.

But my question is if you had — if you actually ran in one of these areas where you shouldn't, what's the fine or what's the downside for the angler?

DR. McKINNEY: Class C misdemeanor.

COMMISSIONER RAMOS: Class C misdemeanor?

DR. McKINNEY: That's what it has been in the mandatory area we have now.

COMMISSIONER RAMOS: Is it possible in these areas to have defined corridors to where you can still access it or —

DR. McKINNEY: Those are the run lanes we were talking about to allow that. We try — want to try to set it up so that someone can go in there and have a 20-minute drift. They don't have — you don't want to have someone have to drift through there for 30 minutes if they don't have a troll or a pole, so you try to approach it that way so you have a reasonable time.

COMMISSIONER FITZSIMONS: Would you describe to the Commissioners the seagrass advisory group, the task force, I guess, is right.

DR. HARVEY: Well, initially, when we began this process 1999-2000, we sought to try to get representatives from every identifiable sort of user group who had a stake in that issue. We worked with them to put together the first initial shot at this, which included the voluntary prop-up zones.

As time goes on, as that process continued, most of those folks just kind of quit coming. We re-formed it again with more specific eye on this particular issue in the early part of the summer. It's made up of recreational anglers, people who represent the boating industry — actually, boat dealers — recreational fishermen, commercial guides.

Again, we try to have it be represented — or to represent the different interests that were directly related to this particular issue in this area.

COMMISSIONER FITZSIMONS: And you're getting good participation? Have you considered recommendations on this?

DR. McKINNEY: We met with them last Monday night, laid these proposals out, and we had no one that spoke in opposition to it at all. Now, that doesn't mean they won't, but they didn't.

COMMISSIONER FITZSIMONS: Consider —

DR. McKINNEY: We gave them this very presentation we gave you today and said, This is what we'd like to lay on the table. And, you know, again, it's going to be open for comment. We have them organized or not and it's — there'll be pluses and minuses.

There are already a few individuals on there who — they're concerned about it, but —

COMMISSIONER FITZSIMONS: They're considering this, and they're going to make a recommendation or comments or what?

DR. HARVEY: My understanding is they'll make comment.

DR. McKINNEY: The task force we considered, their job is basically done until the Commission acts on whatever that proposal is. Then we would, depending on your action, they could continue. We'd like to continue them or some group to help us monitor it over time to see how it works if it were to go forward.

COMMISSIONER MONTGOMERY: Commissioner Watson's got a question.

COMMISSIONER WATSON: You know, if you put these regulations in and you have mandatory no-prop zones in all that area, what impacts is that going to have on our law enforcement down there? Looks like they're pretty busy right now.

DR. McKINNEY: Well, it's —

COMMISSIONER WATSON: I think it's a great idea.

DR. McKINNEY: — no, it's like any of our fishers' regs that we work with. We try to work and see how it works. They step up and do it, you know, because it's important. That's all I can tell you. It does add to their workload. There's no doubt about it.

DR. HARVEY: These areas, Mr. Watson, you know, are located probably either the first or perhaps — I want to say second most highly trafficked area on the Gulf Coast.

COMMISSIONER WATSON: I'm very familiar with it.

DR. HARVEY: And you know, our wardens are — do a great job out there, working weekend, doing water safety and checks and checking for baggings, of course, and in talking to the wardens on their round there as we sort of thought this through, their response is, Hey, we're going to enforce the law, and we're out there, and we'll enforce it when we see them.

DR. McKINNEY: It's kind of like — I mean, this is one of these analogous situations. You see this last slide up on there, it's like driving in riverbeds and such things. It's the same type of issue, same type of law enforcement types of things.

It's — they've done a wonderful job for us in riverbed things that we haven't had — you know, that's a lot more riverbeds and there's a lot big — a great responsibility for law enforcement there, and they've got enough respect to know how to deal with this business that they've made great progress, and we hope they will be able to do this this year as well.

It's a tough issue, and as we — and I'll steal a line from one of the groups, one of our — one of the reporters, David Sykes, I think, actually is — I think he put a great question. That's what we ask our seagrass task force guys and basically says, If you — some folks they're concerned about it because they're out there.

You know, if you own this piece of property, if you own that square that you're looking now behind us — if you owned that, would you let anything — would you let this happen to it? And universally, it's, No. I mean, no one would let this happen to anything that they owned.

And that's what we're talking about here, but the pressure is going to —

COMMISSIONER FITZSIMONS: You have a picture there of the riverbeds. I think if your point being the analogy is that when it was the riverbeds, we clearly saw something had to be done.

COMMISSIONER MONTGOMERY: Okay. Any further discussion?

Thank you for a good presentation.

Bob, anything else before this committee?

MR. COOK: No, sir.

COMMISSIONER MONTGOMERY: Okay. Hearing no — I'd like to announce that pursuant to requirements of Chapter 551, Government code —

MR. McCARTY: We need permission to publish that item in the Register.

COMMISSIONER MONTGOMERY: Oh. I'm off the script. It's not on the script. What's my line?

COMMISSIONER FITZSIMONS: What's my line?

COMMISSIONER MONTGOMERY: Well, I'm — they have it on the agenda but there's —

MR. COOK: Placed in the Register for public comment.

COMMISSIONER MONTGOMERY: I agree with what he said, and I'll repeat ‘‘

DR. McKINNEY: This is not an action item. You cannot take action. This is strictly action [indiscernible] Chairman permission to publish these as rules ‘‘ a proposed rule for public comment —

COMMISSIONER MONTGOMERY: Okay.

DR. McKINNEY: — and action when —

COMMISSIONER MONTGOMERY: We'd like to peruse these rules before we comment. If there's no further discussion, we'll move on.

Are we all right, Gene?

MR. McCARTY: Yes, sir.

COMMISSIONER MONTGOMERY: Okay. Now, I'd like to announce that pursuant to the requirements of Chapter 551 of the Government code, referred to as the Open Meetings Law, executive session will be held at this time for the purpose of consideration of Section 551.072, the Texas Open Meetings Act regarding real estate matters and General Counsel advice.

We'll adjourn upstairs.

(Whereupon, at 12:20 p.m., the meeting was concluded.)

 

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission

Conservation Committee

LOCATION: Austin, Texas

DATE: August 25, 2004

I do hereby certify that the foregoing pages, numbers 1 through 26, 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 Commission.

9/08/04
(Transcriber) (Date)
On the Record Reporting, Inc.
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Austin, Texas 78731