Texas Parks and Wildlife Commission
Conservation Committee Meeting

May 27, 2009

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

BE IT REMEMBERED, that heretofore on the 27th day of May, 2009, 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:

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

P R O C E E D I N G S

COMMISSIONER HOLT: Okay. Next we will move into the Conservation Committee. Thank you, Chairman Friedkin, I appreciate it. Next we will move into the Conservation Committee. Chairman Bivins, please call your committee to order.

COMMISSIONER BIVINS: Thank you, Mr. Chairman. The first order of business of the Conservation Committee is approval of the previous committee meeting minutes, which have already been distributed. Is there a motion?

COMMISSIONER HIXON: So moved.

COMMISSIONER BIVINS: Hixon.

COMMISSIONER FRIEDKIN: Second.

COMMISSIONER HOLT: Second by Friedkin. All in favor, please say aye?

(A chorus of ayes.)

COMMISSIONER BIVINS: All opposed, same sign.

(No response.)

COMMISSIONER BIVINS: Hearing none, the motion passes. Committee Item Number 1, Update on TPW Progress in Implementing the TPW Land and Water Resources Conservation and Recreation Plan. Mr. Smith.

MR. SMITH: Thank you, Chairman. I appreciate it. With all of the discussion on private lands, I only think it is appropriate to highlight that tonight we have the Lone Star Land Steward Award Winner Celebration. So 5:00 to 7:00 there at the Marriott. We have some outstanding winners from around the state, and I hope all of you can be there to help us celebrate our private lands and conservation heritage. A couple of things, big trends happening on the private lands landscape that I think is most important that we talk a little bit about with you all, to make you aware of some of the key things that are happening out there, that are impacting particularly our inland waters and terrestrial habitats. I hope that all of you have had a chance to see the latest Parks and Wildlife Magazine, with what is happening with our East Texas forests.

I think it is safe to say that in the last ten years, we have probably witnessed the single largest divestiture of private lands that any of us will see in our lifetimes, with the decisions of the big timber companies to divest themselves of their land holdings, and to sell those in large blocks to timber investment management organizations who have very different profit horizons and motives with that land. The most recent of which, of course, was Temple-Inland. It sold all of their approximately 2-million-acre interest in Texas and Louisiana and Georgia. And that has important implications for our teams in East Texas that are working to manage wildlife on large scales with the TMOs and the other landowners looking to maximize value for share holders. And so they are looking at, how do they parcelize those tracts? How do they sell them? How do they generate the most return from a timber perspective?

And so we will probably start to see more and more fragmentation in East Texas, an area of the state that is already heavily fragmented. Also, as you heard from Linda, it is impacting our public hunting program. For instance, the Campbell Company which bought, they were the successor interest to all of the Temple-Inland lands, I mean, they have essentially informed us that over the next five years, they are going to wind down and phase out their participation in the public hunting program. So they have given us advance notice. But there is upwards of 50,000 acres that we will probably lose from the program in the next five years.

So what is happening in those East Texas forests has huge implications from a wildlife perspective. And I think it is important that we as an agency do all we can to highlight that part of the state, and the biological diversity and the conservation implications. And the magazine really did a great job of capturing that. The Commissioner up in your neck of the woods, so to speak, you know, we are facing some similar challenges with the Conservation Reserve Program, arguably one of the most important landscape scale conservation programs that was ever implemented, largely to help control erosion, you know, we have almost 4 million acres of CRP lands in the Panhandle. We are expecting about a quarter of those lands to come up for lease renewal in the next 12 months or so. And by 2012, all of them will come up for lease renewal.

And there are some important implications for that. One, many of these lands are owned by retired farmers, and folks that depend upon those revenue streams from those CRP payments to help sustain their livelihoods. Secondly, there was a decision in the 2008 Farm Bill to reduce the cap of acres nationally from 39 million acres in CRP to 32 million acres. Which means that folks that want to enroll, re-enroll those acres in CRP may be bumping up against a cap. And so landowners are going to be presented choices to break that out in production agriculture, again, highly erodible lands, lands that have been restored to grasslands that are benefiting bobwhite quail, lesser prairie chicken in many cases, pronghorn mule deer, the whole suite of grassland birds that we concern ourselves with. So some very significant implications on the horizon. Our teams are working diligently to try to reach out to landowners to make sure that they know what their options are, after the CRP.

And so, are putting together technical guidance booklets, outreach seminars to landowners and doing everything they can to inform folks that have lands in CRP, how they can re-enroll if possible, or explore compatible revenue generation streams that would be consistent with our mission. So two major trends on the private lands landscape that I think are very germane to the mission of this agency and what we are talking about in the bigger private lands situation. So I wanted to just share a few words about that this morning with you all.

COMMISSIONER BIVINS: I guess, in that regard, I have one question on the East Texas issue. Have we had any discussion with the management of this Campbell Company that has notified us of their intent to discontinue public hunting as to the reasoning? Or I mean, I am sure there is some profit potential in there somewhere. But is there no way that we could negotiate with them in order to try to maintain some access?

MR. SMITH: Well, and I think our teams have been negotiating with them, Commissioner. Linda and Nathan and the teams, I think sit down with them pretty regularly. I think they have put forth a very kind of orderly plan by which they are letting us know they are going to have to wind this down, I think, as they sell lands, or as they are certainly aware of that there are probably other competitive, more competitive pricing gains that they can get from leasing it out to the private sector. So in some cases, we are just not competitive from a leasing perspective. They have been a good partner, a strong partner. And the fact that they are giving us this much notice, that we are going to lose this acreage is certainly very beneficial from a planning perspective. It is just, unfortunately, one of the many implications of these big land transfers. Good question.

COMMISSIONER BIVINS: Thank you.

COMMISSIONER MARTIN: I have a question. Do we have any communication with some of the appraisal districts? I have actually had a few approach me, saying that they are faced with concerns and situations that they really don't know how to best deal with appropriately in some of this land fragmentation, and in some of these lands that are going into different opportunities and uses. Do we have any type of a partnership or open dialogue with ‑‑

MR. SMITH: Yes. Very good question. Linda and her team and our private lands biologists around the state, work very closely with the appraisal communities in each county. We are obviously encouraging private landowners, where appropriate to enroll their lands in wildlife use valuations where they had a preexisting Ag, or timber use, and encouraging that. We just went through an exercise with the Comptrollers Office and the Department of Agriculture, Texas Wildlife Association and many other stakeholders to update the rules for the wildlife use valuation and who could apply. Legal was very involved in developing some of those new rules. And so yes, there is a very active dialogue to try to help them kind of make good decisions about which lands are eligible for that.

COMMISSIONER MARTIN: I may at a later time ask for their assistance or pass on some of the information to help some of these individuals in long-term help, in the landowners as well, just in ‑‑ you know, actually having some difficulty actually using some of the language whereas maybe something was a shed, and they had it as a warehouse, and that was changing. And so they were looking for different guidelines.

MR. SMITH: Some of the improvements that are on the property, and how those are appraised?

COMMISSIONER MARTIN: And how they are ‑‑ the proper language to identify them more. So maybe I will visit with ‑‑

MR. SMITH: Linda Campbell, yes.

COMMISSIONER MARTIN: Great.

MR. SMITH: Yes. Good.

COMMISSIONER BIVINS: Thank you. Committee Item Number 2, Status on the Update of the Texas Parks and Wildlife Department Land and Water Resources Conservation and Recreation Plan. Mr. Scott Boruff.

MR. BORUFF: Mr. Chairman and Commissioners, my name is Scott Boruff. I am the Deputy Executive Director of Operations. I would like to take just a moment to congratulate the Commissioners on your recent confirmation by the Senate, and especially to welcome Mr. Morian to the Texas Parks and Wildlife family. We look forward to working with you, Mr. Morian. This is an important time. And I also recognize once again Ross Melinchuk and Mike Jensen back here, not probably because they need the recognition so much, because I think this does set up a point in time that is very important for the agency as we move forward.

Obviously, our Land and Water Resource Conservation and Recreation Plan, that is the last time I will say it that way. It is more affectionately known as the Land and Water Plan, around the agency, is obviously one of our two more important strategic documents that we use in this agency to direct the activities in conservation and recreation that we are trying to effectuate. The natural agenda is the other strategic plan that I won't talk about today, but it is very important to the agency. It really sets some of the spending parameters, and defines the ways that we both receive and are requested to use the money that comes into the agency.

So the partner document to that natural resource document is the Land and Water Plan, affectionately. Let me get this up here. The plan was originally crafted at the request of the Legislature, right after the turn of the century. It was number one. We in 2005 at the request of the Commission updated the Land and Water Plan once again.

And most recently under Chairman Holt's and Mr. Smith's direction, we are in the process of updating the plan yet again. We have been working on this plan for several months now. We have decided to create around the state what we are affectionately calling conservation and recreation forums. Those are simply large meetings where we pull together both our internal resources and our friends out there. The NGO community, other agencies, and other conservation-related organizations. So we are trying to cast a broad net, to get lots of feedback about what is important for the strategic operations of this agency.

We have developed a pretty specific plan of attack, which includes putting together a very dynamic teams out on the ground. And you can see the list of the teams here. I am not going to spend a lot of time on each one of these, other than to say to you that we have basically divided the workload amongst teams that are doing different things to bring to the table all this important feedback that we are trying to get. We did get clear direction from Mr. Holt and this Commission and Mr. Smith as we started this process, to make some changes in the plan. And that is not to suggest that the previous plan wasn't a good plan, because I think it was. It was well documented that it was used in many different ways.

But a couple of the things that the leadership asked us to do is to make the plan a little simpler, and easier to be understood and read. You know, to be something that people would like to look at, at the same time as they are reading it. That ownership of the plan was a key ingredient of success. And that we wanted both our staff in the field, our partners around the state, and the leadership downtown and elsewhere around the state to be able to embrace this plan and see it as something that was effective and meaningful for us. We also went another step there, and decided that one of the most important things we could do was to make this hopefully the umbrella strategic plan for anybody looking at conservation plans around the state. I will talk about that a little more later.

But we do believe that one of the things we are going to do for example, is we are going to put electronic links. This plan will be available in December both electronically and in hard copy. In the electronic copy, what we would like to do is have links to all of the other conservation-related plans, both within the agency, and with our sister conservation agencies and other state agencies that are involved in conservation and recreation activities. So that you could go to the end of the plan and look at our state wildlife action plan. You could go look at the shrimp action plan. You could look at those kinds of plans, by going to this plan. So it would then become a clearinghouse for all conservation plans around the state.

You see the schedule here. We have put together around the state 12 aquatic-based ‑‑ have I got a picture of that? No, I don't. We have 12 aquatic-based ecoregions that we have defined. Historically in the state, the Wildlife Division in particular has looked at the state in terms of terrestrial ecosystems, or some ten or 12 acknowledged terrestrial ecosystems around the state. With the recent focus in the last few years on the importance of water to both conservation and people in Texas, we thought it would make good sense to kind of overlay an aquatic system over the existing terrestrial system. So we went out and looked at the major aquatic drainages in the state. There are actually ten of those. A couple of them are so big we had to break them in half in order to make them manageable. But we came up with these 12 aquatic ecosystems.

And each one of those, each one of those systems we have put together these forums where we have gone out and with our own folks, with our partners, had substantive discussions and debate about what is important for conservation and recreation in Texas. That information is flowing back into the agency's project management office, under the direction of Jeannie Munoz and with support from Larry Sieck and myself. We are trying to compile at least the original or the preliminary draft of a new Land and Water Plan that would be simpler, it would be a little more visually attractive, but would still capture the essential essence of what is important to this agency from a strategic perspective.

We are at this point putting together the first draft. I have talked with several of you offline here today. I will begin today to get with each one of the Commissioners independently to show you where we are in this early draft process, to solicit your feedback and approval. And as you can see here, we plan to this summer go out to the public for public meetings. Let me back up one schedule. We are writing the draft document right now, at the beginning of June. As you can see there, this month and early next month, I plan to get with each and every one of you to let you see where we are, to make sure you are happy with the direction that we are taking. We are keeping Mr. Smith in the loop very frequently so he knows what is going on.

Our goal is to get out in front of the public in July with public hearings. So anybody that wants to will be able to come to these public hearings. Here is where we have them set up right now, around the state. We may add one or more to this. We are kind of evolving the best place to do these. At that point, we will roll out our draft document. We will say to the public, what do you think? Give us some feedback. It gives us then time to go back to the drawing board if we need to. You will notice here then that in October, we would compile all of those comments. At that point, we would have comments back from the Commission. We would put the draft together, so that we would come to you in November at your November Commission meeting with a proposed new Land and Water Plan for your approval. Assuming that approval occurs, we would then print that plan and have it out by Christmas or before Christmas. I will say there has been a lot of work that isn't very well recognized here.

It would be virtually impossible for me to thank everybody. For each one of these 12 aquatic regions, we put together a point of contact and a backup. Those people that work for Texas Parks and Wildlife, either scientists or law enforcement officers or folks involved in recreation who have pulled together these large groups. And sometimes you are talking 70, 80 people that come into these groups and talk about what we should have in this plan. So my special thanks to all of the folks that have been working hard on this. I am looking forward to getting with the Commission to show you where we are. And I would be glad to answer any questions.

COMMISSIONER BIVINS: Any questions?

COMMISSIONER MARTIN: The public meetings, how are they advertised, or how do everyone know exactly where to go and how to get there?

MR. BORUFF: Much the same as we do for the regulatory process. And so we will be posting these in newspapers. We will be working with Lydia Saldana and her crew to get the word out with whatever media is available to us to do so. We also, I might point, we have invited, thus far there have been over 100 other organizations that have participated in this exercise. And I am talking about friends like the Nature Conservancy and the Sierra Club and those kinds of organizations, as well as the Southwestern Cattle Raisers Association and other groups that are not necessarily always associated with us. So 3,000 individuals and 100 organizations in addition to Texas Parks and Wildlife have already been a part of the process. And so the word is out there that this is going on. We hope that network will really be our most powerful vehicle for getting the word out about the public hearings. But we will go through the other typical processes that don't necessarily prove quite as successful as word of mouth.

COMMISSIONER MARTIN: Thanks.

COMMISSIONER BIVINS: Any other comments or questions for Scott? On behalf of the Commission, I would like to thank you and all of those people that have worked on this because it is an ongoing challenge. And long range strategic plans are oftentimes a real effort to create. And then they don't ever get followed up on. And in this case, I think we are following up on it. And I think it's providing a real good guideline for us to move forward. So thank you again.

MR. BORUFF: Thank you.

COMMISSIONER BIVINS: Let's see. That brings us to Item Number 3. Rate Schedule Regarding Damages to Department Properties. Also Scott and Mr. Ted Hollingsworth.

MR. BORUFF: For the record, Mr. Chairman and Commissioners, my name is Scott Boruff, Deputy Executive Director of Operations, and Mr. Ted Hollingsworth is going to do the bulk of this presentation as the Director of our Land Conservation Program. I am going to say very little except to introduce the fact that given that we have lands both in the Parks Division and in the Wildlife Division, that pretty regularly are the subject of infrastructure projects like mineral recovery, pipeline, utility, seismic and other proposals, we have historically had some problem in negotiating the fees that we are going to charge for both the direct impact to the property as the projects go on, and then the ongoing recovery for the use of the property after that.

We about a year ago decided to put together a standardized damage and fee schedule, which we have had in place now for a year. It has proven to be very successful in my opinion, in reducing the amount of conflict that we have had with folks when we were trying to negotiate every single contract separately. So it has been out there for about a year. We are here today to kind of brief you on it, and to offer you the opportunity to give us any direction or feedback you might have. And with that, I will hand it over to Mr. Hollingsworth.

MR. HOLLINGSWORTH: Chairman, Commissioners, good morning. My name is Ted Hollingsworth. I am with the Land Conservation Program. I won't reintroduce us. Scott did a fine job. Obviously, with 1.3 million acres across the state, try as we might, we sometimes can't stay out of the way of oil and gas recovery, especially where we don't own the minerals, pipelines. We do have regulations that state that we only allow this kind of activity where there is no reasonable and prudent alternative. But it just turns out that sometimes, there is not a reasonable and prudent alternative. Utility easements, likewise. Historically, we have not had a published rate schedule. And for years and years, the first question we get asked by applicants is, can we see a rate schedule. And the fact that we haven't had one has just made negotiations a little more complicated than they needed to be.

Staff is recommending or has recommended for a long time that we put something in writing that at least forms a basis for those negotiations, so it doesn't appear that staff is arbitrary going into these negotiations. It does assure some consistency. It is difficult to achieve real consistency between say the Panhandle and Southeast Texas and the Valley. But it really is a good start. It helps a lot. And it does minimize applicant attempts to go around staff. Some of you have probably experienced this. Sometimes, the Governor's Office gets involved, or local elected officials get involved. And the first complaint is that we don't have anything in writing, and therefore staff is arbitrarily trying to assign rates. Also, having published rates, especially, we try to keep these sort of on the high end, try and keep them pretty liberal in terms of expecting a lot for damages to our properties. And it does encourage applicants to try and find ways to go around us where feasible.

It raises the bar for that no feasible, no prudent alternative standard. The fees could be adopted in a different manner. We are using now effectively is guidelines. Today really is only a briefing. They could be adopted as policy or rule, however what we are finding is that using them as guidelines informally has just done a lot to simplify negotiations and minimize complaints we have had about the process. With that, we certainly do welcome any comments you might have, either specifically about the rates, or about the process, or how it has worked, or what the options are. And I would be happy to answer any questions you might have.

COMMISSIONER BIVINS: My first comment on this, I understand the need to create some general parameters that we work with. But I guess I am a little concerned that these parameters may be limiting in certain areas. For instance, if you have a very sensitive environmental issue, or a sensitive area due to either plant or animal life in that area, I don't want to limit the amount that we could charge. I mean, using this as a floor, or maybe a basis to work from, I think, is fine. But I think for us to try to get a particular number that would be applicable to any area in the state is limiting on our part.

MR. HOLLINGSWORTH: Yes, sir. We are very sensitive to that. And think you will find with every category of impact, these are stated to be minimums. And there are caveats in there that say for sensitive habitats, for habitats occupied by state-listed species, for operations where there are going to be clearly ancillary impacts such as noise impacts, activity impacts, and so forth, staff will negotiate the rates upwards accordingly. And we are doing that. In some cases, we have negotiated rates down, because of the minimal nature of the impacts, or the fact that the easement has been in place for decades. In some cases, we are negotiating them up significantly because they include wetlands, they include occupied habitat. They include sensitive habitat.

MR. BORUFF: I might also say, Chairman Bivins, that that is one of the reasons that we decided internally to keep these as guidelines at this point.

COMMISSIONER BIVINS: Yes.

MR. BORUFF: We didn't feel like we wanted to come back to the Commissioner or the Executive Director every time we wanted to negotiate something like that. I will say that on any of these very sensitive negotiations or issues, we certainly are keeping the Executive Director in the loop, and he is doing the same with the Commission. So we felt like it was best to keep these as guidelines. We wanted to be sure that you all understood that and supported that. And that is one of the reasons for the briefing today.

COMMISSIONER BIVINS: Good. And I think that to express this on the public record is what we are trying to get accomplished here, that they are guidelines. They are not set in stone numbers that we are applying across the state.

COMMISSIONER DUGGINS: Well, I don't read it as a ‑‑ I am looking at it. The pages aren't numbered. But under the section draft for utilities and permits. They need to have the fee schedule on the next page. If you look at the damage assessment for a new easement, ten-foot electric lines, you say $100 minimum. But it says $5 a rod. You may mean $5 rod minimum, but somebody could be cantankerous and say that is the stated price.

MR. HOLLINGSWORTH: Well, it says at the top of the chart, utility minimum damage and fee schedule.

COMMISSIONER DUGGINS: Okay. I think you should clarify it if we are going to do this, somehow note that in a footnote, or in the whole schedule, that all of these numbers are the minimum that have to be paid so there can be nobody raising the question with you that it is a minimum on one side, but not on the other. But then I come back to the notion of why, on the last, in that same section under television cable, we say, whatever the market will bear. It seems to me that is what we ought to be getting on all of these. I understand your point of having a minimum, but why we single out television cable and say whatever the market will bear ‑‑

MR. HOLLINGSWORTH: Well, because historically, if a television cable services six downstream customers, or if it services 6,000 downstream customer, it makes a profound difference in what the market will bear, more so than with, if you have 132-kilovolt high line, you know that that's got a large number of downstream customers. And that one in particular has just proven to be very awkward, because of how variable it is.

COMMISSIONER DUGGINS: But that is what I am saying. Doesn't that lead you right back to the point you are trying to avoid, which is this complaint by a prospective condemner that you are being arbitrary?

MR. HOLLINGSWORTH: Yes, sir. That one is probably ‑‑ it is the only one that says that, and you went right to it. But that one is problematic, and that is the reason that language is there. And we are tightening these up as we use them. We have already adjusted several of these upwards, quite frankly. And the market has changed dramatically, even the last three or four years, for pipelines in Southeast Texas, what the market will bear has probably doubled in the last five or six years. And we are trying to stay on top of what is going on in the private sector. We are staying in touch with the University of Texas system, with the General Land Office, and we are trying to keep our rates a little ahead of everybody else's rates.

COMMISSIONER DUGGINS: Well, I was going to say, some of these rates to me, look low, based on pipeline easements I have negotiated west of Fort Worth. They are substantially higher than these.

MR. HOLLINGSWORTH: Give me some numbers. I will stick them in.

COMMISSIONER HOLT: Fair enough. But I think it brings up a point that Commissioner Duggins is talking about, is how are we going to keep up with these? We might have to build them a system somehow. Because these are ever changing.

MR. HOLLINGSWORTH: Yes, sir. But historically, we have had to go do the homework every single time we have had an application. And so ‑‑ and we are still going to continue to have to do that, obviously. We don't get a pipeline request every day. We get two or three a year. And depending upon where they are in the state, we need to be flexible. This has helped a great deal though in setting a baseline for those negotiations. But you are absolutely right. We will have to continue to try and stay on top of the market. And quite frankly, David Riskin in State Parks, Dennis Gissell in Wildlife and myself in Land Conservation, it is the three of us that are working all of these for 1.3 million acres in Texas. So it is a challenge. And this is making our job a little bit easier.

COMMISSIONER HOLT: Benchmarking relative to other states. Are they doing it this way also? Is every state different? I mean, has anybody looked at how other states are doing it?

MR. HOLLINGSWORTH: We contacted a couple of adjacent states and they said, gosh, could we have a copy of yours when you are done with it. The General Land Office has also, and the University of Texas System, and in fact, the City of Houston ‑‑ the City of Austin has already been over to visit with me and look at this. Our rates are a little steeper. Our published rates are a little steeper than those at GLO and University of Texas Systems. They are anxious to see our rates, so that they can maybe adjust theirs upward accordingly. And of course, as you well know, it varies a lot across the state.

COMMISSIONER HOLT: Oh, yes. Get Commissioner Duggins on there, because he will be aggressive. So get him to help us price this stuff.

MR. BORUFF: Surprising to us, when we looked at GLO, that these numbers are significantly higher than GLO's numbers, that they charge for the similar kinds of easements.

COMMISSIONER HOLT: Any particular reason? It is just that they haven't updated theirs maybe, or do we know yet?

MR. BORUFF: I wouldn't venture as to guess.

COMMISSIONER HOLT: Okay. Well, that is what I am saying. And I am glad you are benchmark. But let's see if we can look into those kind of things. I guess my worry, the idea is great. Guidelines are, I think the right way to go. It is just that ‑‑ we will have to come up with some process. How do you keep up with it.

MR. BORUFF: Well, I think something like an annual formal review would be something good that we could do.

COMMISSIONER HOLT: Yes.

MR. BORUFF: We could certainly tap into the expertise on the Commission, as well as other friends that we know in the industry.

COMMISSIONER HOLT: Right.

MR. BORUFF: And once a year, go back and look at these things, and try to do some kind of benchmarking against current market conditions and see if we need to do some adjusting.

COMMISSIONER DUGGINS: I would join you. I think it ought to be reviewed, the rate schedule, anyway.

COMMISSIONER HOLT: Yes. That is what I am talking about, primarily. Yes. And the flexibility of them being guidelines, I like that too. I mean, that makes sense to me. You don't want to get locked into any numbers. We all know things change, literally can change overnight as to some of these.

MR. HOLLINGSWORTH: You have a copy, again, and you have got my email address. If you see some numbers in there that you think we need to work on, I have made adjustments to this thing probably monthly since I first printed it a year ago, as the markets change, and as we find out, as we learn more about what the markets will bear.

COMMISSIONER BIVINS: Great. Any other comments?

(No response.)

COMMISSIONER BIVINS: Thank you, gentlemen. We appreciate it. Committee Item Number 4, Excavation of Archaeological Site at Seminole Canyon State Park Historic Site. Mr. Tim Roberts.

MR. STRUTT: Good morning ladies and gentlemen of the Commission. My name is Michael Strutt. I am the Director of Cultural Resources for Parks and Wildlife. Although my program is lodged in State Parks, we support the rest of the agency, all of the other divisions, including Wildlife, even though Wildlife has a cultural resource coordinator. Dr. Lentz is a one-man shop over there. We have in the Cultural Resource Program a number of folks. There is an archaeology lab with a survey team. I have one historic preservation specialist who takes care of historic buildings across the system. And I have eight regional archaeologists. And with me today is Mr. Tim Roberts from far West Texas. He is officed in Davis Mountain State Park. And he is here to talk to you today about something that for us was pretty exciting, a very interesting project, and a little bit different than our normal day-to-day activities. Tim.

MR. ROBERTS: Good morning. As Mr. Strutt mentioned, I am Tim Roberts. I am the Cultural Resources Coordinator out in far West Texas, officed out of Davis State Park. And I just want to provide a brief report on a recent archaeological excavation that we were able to complete out at Seminole Canyon State Park and Historic Site. This site, known by the archaeological site number 41-VB-1991, also known as Lost Midden Site, was first identified in September of 2007. This site was eventually discovered to consist of three different features, sculptural features and related artifacts. These features were related to the cooking of plant materials out on the site, probably by inhabitants of a couple of nearby rock shelters. And I don't know if I have the ability to point using this, but the rock shelters ‑‑ I guess it doesn't show up on the screen.

Anyway, the rock shelters are down below in Seminole Canyon. You can see in the background photograph. The visitor center and associated parking is up towards the upper right hand corner of that photograph. And the yellow arrow marks the location of this site that we recently excavated. Down in the lower photograph, you get a nice profile of the burned rock associated with one of these cooking features.

Just for future reference, in the presentation, as I mentioned, there are two rock shelters down below the visitor center. There is a larger one, kind of towards the left known as Fate Bell Shelter and another smaller shelter to the right of that known as Fate Bell Annex. And I will be mentioning those again later.

Once we identified this site, the overlying soil was gradually removed with the help of several Cultural Resource Program members and local volunteers, using a lot of time and trowels and whisk brooms to move all of this overlying soil. But you can see, in the right hand side of this aerial image, there is a lot of rock that has been exposed, and some gray staining. And that was the larger of our features. It was a burned rock midden feature, which I will discuss more later. And to the left of that one is a smaller burned rock midden. Once we exposed these features on the site, we hired a contractor to do aerial photography, using kites and a small blimp. It was quite an operation. And he was able, with computer software to then mosaic these various images together into what you see on the screen there. It is impressive trying to watch a blimp being used in high wind.

(Simultaneous discussion.)

MR. SMITH: Tim, why did you need to use a blimp for the aerial pictures? Was it the ‑‑

MR. ROBERTS: Well, this person typically used ‑‑ he was using kite photography. I became aware of that from a project he had done out at Big Bend National Park. This was actually the first time that he had tried a blimp, and I think it was just as much a curiosity on his part as anything, to see how that would work. And in the wind that we had on that particular day, I can't say that it worked terribly well. The kites were more effective.

COMMISSIONER HOLT: Yes.

MR. ROBERTS: But it was fun.

COMMISSIONER HOLT: But why kites? I guess I am backing up even more. I mean, why ‑‑ especially in this day and age, when I can Google the ‑‑ I mean, why kites?

MR. ROBERTS: You know, it is something that he had just recently tried out West, and he had a series of different kites for different wind conditions. And so I guess, depending on the kite used, he had some amount of control during these various wind episodes out there. And I would have to think on his part, there is probably a little less cost involved in using that sort of ‑‑ I won't say primitive technology versus others, but a different technology.

COMMISSIONER HOLT: Yes. Different. So he is hanging cameras off of kites.

MR. ROBERTS: Right.

COMMISSIONER HOLT: And taking sequences of pictures. MR. ROBERTS: And it is still difficult, very difficult to control your shots.

COMMISSIONER HOLT: Yes.

MR. ROBERTS: But that is why he has got this software to then mosaic these images together. He took, as I recall, well over 1,000 photographs.

COMMISSIONER HOLT: That would be digital.

MR. ROBERTS: Digital.

COMMISSIONER HOLT: And then he uses the software to create the image.

MR. ROBERTS: Right. And I was told that it is the same software ‑‑ okay. Thank you. The same software used to map out the lunar surfaces, and that they use to map out Mars and the surface.

COMMISSIONER HOLT: I have got you.

MR. ROBERTS: So it is an impressive software, and he was able to meld these into this.

COMMISSIONER HOLT: It is very detailed. Yes.

MR. SMITH: You can point at the big screen behind us, if you need to point.

MR. ROBERTS: Oh, okay. After the aerial photography was completed on the site, we did additional excavation. We excavated a total of 18 one-by-one meter test units across the site, including 13 test units on the larger burned rock midden that I pointed out, and five on the smaller midden. All of these test units were excavated down to bedrock. Which I should point out, that is one of the more interesting things about this site. Whereas most of the upland sites in the Lower Pecos and West Texas in general are found on the surface, or there is some evidence of them on the surface, this one was buried in a soil-filled basin. And what I am thinking at this point is that it may be a partially collapsed sinkhole actually, that filled in with soil. And having this nice area of soil, it was perfect for digging these roasting pits and roasting these foods in that particular area. And it may have been a little greener, just because that basin would have held moisture more than the surrounding area, so it would have drawn them to that location.

COMMISSIONER HOLT: Are there evidences of sinkholes, other sinkholes around that area?

MR. ROBERTS: There is another sinkhole on the other side of Seminole Canyon, within the park.

COMMISSIONER HOLT: All right.

MR. ROBERTS: The other possibility is, it could be an upland Tenuta or just a natural basin. But I think, I am leaning towards a partially collapsed sinkhole in this case.

One of the three features that we discovered during those test unit excavations, was this intact roasting pit. I think I will take a moment, maybe to discuss the way that these pits were constructed and used. A pit would have been excavated, a fire started within the pit. And as that fire burned down, then rocks would have been added to that pit to be allowed to heat up. And then once the fire was extinguished and the rocks heated, they would have put a green plant material, prickly pear pads or grasses or whatever to act as a buffer between those hot rocks and the food that was then put into the pit, which generally included, in this area anyway, sotol or lechuguilla, some of the native plants in that area. And then another layer of green vegetation. And then that was capped with soil and allowed to cook for a couple of days to roast. Those plants would keep the food from being burned, for one thing. But they also added moisture to the cooking process. And after that couple of days of roasting, then of course, that would be uncovered, the rocks tossed off to the side, and the food removed. And those burned rock middens that I mentioned, those large scatters were the resulting discard piles, basically, of the rocks from these pits.

COMMISSIONER HOLT: Yes. Okay.

COMMISSIONER MARTIN: Is there a way of knowing how long ago they were possibly used? I am ahead of myself.

MR. ROBERTS: Yes. Well, I just ‑‑ I was going to get to that on this next slide. We did find several projectile points on the site, including three dart points and six arrow points. The styles of these points suggest that the site was used between about A.D. 500 and A.D. 1550. That would be a general range. We have recovered some charcoal from the site, and we should be able to get some more specific dates. But at this point, just based on the point styles, that is kind of our general time frame that we are looking at. And the top row of points are the dart points that would have been used with what we refer to as atlatl. That lower image shows a person using an atlatl. It basically is ‑‑ it acts as an extension of your arm, and allows more thrust when throwing these darts. That would have been the earlier technology used on this site. And then later, bow and arrow technology would have been used, and they would have moved on to these smaller arrow points.

Seminole Canyon of course, is known largely for its rock art, rock imagery there on the park. The styles of rock paintings that would have been painted during the time that the Lost Midden Site was occupied would have included what we referred to as Red Linear and Red Monochrome style. Red Linear would have been the earlier of the two. Both of these styles are present in the Fate Bell Rock Shelter that I noted, near the Lost Midden Site. Also the Red Monochrome pictographs are present in the Fate Bell Annex site. So that potentially relates those people in those rock shelters to those that would have used the Lost Midden Site and cooked on that site.

And for that reason, I will get into it more later. But I have suggested that the Lost Midden Site may have acted as kind of a summer kitchen. Because there is some suggestion that that site was occupied during the summer months, just based on where that roasting pit is located. And I will get more into that again later. But anyway, that it was used during the summer months.

COMMISSIONER MARTIN: They were having a luau. They were having their own luau.

MR. ROBERTS: Yes. And also, the rock shelters would get awfully warm having these roasting features down inside the rock shelters. So I think they were up on top, removed from these shelters, and doing the cooking. We also have, we find painted pebbles on occasion in the Lower Pecos, including some examples that were recovered from Fate Bell Shelter. And again, these artifacts of this particular style at least date to the same general time frame as when the Lost Midden Site was occupied or used. So again, it potentially ties that site to the rock shelters down below.

COMMISSIONER HIXON: Excuse my ignorance, but what is the point of painted pebbles?

MR. ROBERTS: Well, that is a question that we archaeologists are still trying to determine ourselves the answer. I think it is ‑‑

COMMISSIONER HIXON: Is this peculiar to the Pecos, or do you find them in the ‑‑

MR. ROBERTS: No. We do find them out in the Big Bend region as well, but in fewer numbers. And the earlier ones seem to be more to the east, in the Lower Pecos region.

COMMISSIONER HIXON: Fascinating.

MR. ROBERTS: And appear to have ‑‑ that artifact type appears to have moved westward. Some people think that they were used as totems in curing rituals. Some suggest it is used for fertility. It is still kind of up in the air exactly what they were used for.

This slide just shows again, the relationship between Seminole Canyon and the rock shelters in Seminole Canyon with the Lost Midden Site that is up above. And here is the visitor center. Some of our other findings included the recovery of two species of land snails and a riverine mussel, that are still found in the area today. So it suggests that the environmental conditions, at least in that area have been similar since at least around A.D. 500.

We are also still having the flora remains, the plant remains have been recovered, seeds and pollen analyzed. That is still in process. But as I mentioned earlier, based on what we know from other sites in the region, it looks like lechuguilla or sotol were likely the plants that were roasted in these features and that mesquite was probably used as the fuel source in these pits.

COMMISSIONER FALCON: I thought mesquite was a little bit later here. How long does it go back, in some of these sites?

MR. ROBERTS: That is a question that I may not know the answer to. But it goes back considerably earlier than this site.

COMMISSIONER FALCON: Considerably?

MR. ROBERTS: Thousands of years.

COMMISSIONER FALCON: Thousands?

MR. ROBERTS: Yes. I believe that is correct. But I couldn't tell you exactly. Going to the significance of this site, as I mentioned earlier, unlike a lot of these upland open sites, this one was in a buried context. And that is very uncommon. Almost unknown in that region. That allows the potential to separate the cultural groups that use this site, because there is potential for stratigraphic division between cultural components. Whereas on the sites that are on the ground surface, often times, it is just jumbled, and you can't separate the different cultural groups. Also, burned rock midden sites dating to the late prehistoric as the Lost Midden Site date to, are less common than the earlier archaic burned rock midden sites. And so that adds to the significance of this particular site.

Also, at least earlier in the late prehistoric site, from about A.D. 700 to 1300 much of what we know about the cultural groups during that time frame comes from excavations of rock shelters and burial sites. We had in comparison much less information that comes from these open sites, such as the Lost Midden Site. And also later in the late prehistoric period, from beginning about A.D. 1300 to A.D. 1550, we have a lot of or a number of burned rock midden sites from the surrounding area, the Edwards Plateau, Balconies Canyonlands. But there are much less, there are many fewer than are represented in the Lower Pecos region.

Of course, the excavation of this site is just an early stage of gathering this data, and providing it in a more user friendly format for park visitors. We have completed a brochure at this point, with some of the preliminary findings from the excavation. We are planning to construct an earth oven and burned rock midden near the visitor center so that it gives visitors something visual to see, and to relate that story of those features to. And we are also considering other hands-on exhibits. One thing I had in mind was, when we complete the analysis of the plant remains, the seeds and pollen and so on, I think it would be interesting perhaps to provide magnifying lenses and those items, especially for kids, to give them an idea of what comes from these excavations and what these things represent. And the food sources that they represented to the Native American groups that occupied these sites. And of course, we are completing a technical report that will summarize the results of the excavation. And we will present some papers at future conferences, I'm sure. And as I think and hope I mentioned earlier, this excavation was completed with the help of a number of the members of the Cultural Resources Program and area volunteers. And I just want to thank those people for participating in the excavation and helping us accomplish that. I would be glad to answer any questions that you might have.

COMMISSIONER DUGGINS: If it was buried, how did you discover it?

MR. ROBERTS: It was in preparation for constructing some infrastructure in that area, actually.

COMMISSIONER DUGGINS: Okay.

MR. ROBERTS: There is some necessary infrastructure that is going to go into that location.

COMMISSIONER DUGGINS: Was going to go into that location.

MR. ROBERTS: Well, it is slowed down now. But it will still happen. That was part of the reason for the excavation is to do the necessary data recovery and gather as much information as we could about that site before the infrastructure goes in. It will go in, eventually, because we have gathered that information now. And I will be providing the THC with the technical report on the results, in the process of getting clearance for the infrastructure to proceed. There is also still part of the site that will remain intact. It is going to be set aside. And it won't be impacted by the construction. And that way future researchers can go back and answer other questions that they may have at that time.

MR. SMITH: Michael, you might just kind of walk the Commissioners through the process that we go through with THC on issues like this, where we have infrastructure planned for an area we do an archaeological survey, and then how we kind of manage that in cooperation with THC. Could you just comment on that generally.

MR. STRUTT: Okay. This particular project is a dump station and a septic field for the park. And in discovery of this site, there is already ‑‑ the interesting factor here was that there was already a septic field within 100 feet, less than 100 feet away from the site, that was put in a number of years ago. This site was not known at the time. So when we started doing this project, we came across this site. The THC will allow us, in archaeological terms, we can put in a project like that where an archaeological site is, or was in this case, because we have excavated it out.

Archaeology is an inherently destructive process. But we are gathering all of the information from the ground when we take a site apart. For instance, that slide that Tim showed of the fire hearth. We took that fire hearth apart. It doesn't exist anymore. So archaeologically, we have gathered every bit of that information. So now you have just essentially an empty hole in the ground and the ability to put that infrastructure is there, because we have got that information out. We go to the THC. We tell them that we have this site. We now have all of this information. The technical report that Mr. Roberts is writing is the mitigation for this, and the THC. We go through this process all the time with them. I write letters to them pretty much weekly, to go through this legal compliance process. And that is a good reason ‑‑ a good bit of the reason for this project was the compliance.

COMMISSIONER BIVINS: What county is this?

MR. ROBERTS: Val Verde.

COMMISSIONER BIVINS: Any other questions?

(No response.)

COMMISSIONER BIVINS: If not, thank you both very much. It is a very interesting presentation. Committee Item Number 5, Proposed Changes to the Issuance of Marl, Sand, Shell and Gravel Permit Rules. Permission to publish proposed changes in the Texas Register. Mr. Rollin MacRae.

MR. MacRAE: Good morning, Mr. Chairman, Commissioners. My name for the record is Rollin MacRae, Inland Fisheries Division, Coordinator of the Department's permitting program for excavation of sand, shell, gravel and marl from state owned bay bottoms, riverbeds and that sort of thing. The program is now located after recent reorganization in the Inland Fisheries Division. The coordination had been shared with Legal Division for the past number of years. And for efficiency and appropriateness was transferred entirely to the Inland Fisheries Division.

The picture in the background is actually the Nueces River, for those of you familiar with the area, 19 Mile Crossing. And it shows a vast expanse of gravel was channeled in the far, distant part of the picture, a channel in the foreground, and another one behind me, leaving these islands of gravel, all of which are under Commission jurisdiction, which extends in terms of sand and gravel primarily over the navigable streams of the state. And those include those state-owned stream beds where sovereignty was never surrendered from Spanish time right to the present. The records show that the ownership is still with the State.

The other area is what are known as Small Bill streams, where for over 100 years, surveys were shot improperly over streams that were greater than 30 feet in width, in violation of the rules. But there were so many of them by 1929, that the Legislature fixed the problem by surrendering most property rights to the landowner in whose survey they were included with the reservations of course, on the water, which the State would always claim, the sand and gravel, which was in Commission authority, and public access. This slide, after the technical run-through yesterday, I have to explain. This is an example of a hydraulic dredge. It is not really in the river, which is in the far part of the picture. But it was still a strait to dredge.

This is what happens when people dredge on upland private property. You wind up with a huge ugly hole that is pretty much permanent. In the river, it would be dredging a sand bar, which would be renewable as future floods brought additional sand down. And that was a mining permit, an individual mining permit for commercial sale. The other type of permit that is issued is a general permit, which the Legislature authorized us to do a few years ago, because we had a great number of very small projects.

Water intakes, sewage outfalls, small low water crossings, pipelines and that sort of thing, that were a real headache for our Accounting Department to open a permit, process it, and then close it. And so we have the general permit for things like this, to clear this gravel away from a bridge. This is in Georgetown, without having to go through a lengthy process and a great deal of accounting hassle. The other type of general permit that has sort of grown as the program has achieved greater awareness, and this land has been fragmented is restoration projects where flood damage has occurred or something like that, or for recreational use, where someone has a traditional swimming hole. It is filling up with gravel, and we allow small amounts of gravel to be removed from there.

The changes we are requesting to the procedures through rules is public notice improvements, streamlining the process for renewals, deleting a special study of sediment and erosion that was installed a few years ago, adjusting a maximum amount that can be removed under one of these general permits which were intended to be for small projects. Correcting the processing time, because there is a glitch in there that doesn't allow adequate review, and finally adjusting fees and prices which haven't been looked at in quite a number of years.

The public notice changes we would like to implement would be to eliminate publication in the Texas Register and newspapers. As newspapers decline in numbers and are further and further away from any of these sites, it has become a much more expensive venture for the applicant. And in some cases, for Department staff. That and the Texas Register, it has been our experience they are not where we get comments. We get comments as Director Boruff mentioned earlier, word of mouth is much more effective. And it is usually a conversation in a coffee shop that stimulates most of our comments.

We would then publish public notice on our Department website, where everybody can see it. And we would be able to put the entire application out for review rather than a 25- or 50-word notice. We would send email notices to anyone who expressed interest in the area or in the process. And we would mail notices to nearby landowners. We do the mail notices already for the big ones. But we haven't been doing it for those smaller general permits.

The sediment study was installed in the mid-90s when the question arose as to whether or not our big operations, particularly down on the Lower Brazos, and there was one operation on the San Jacinto River, near I‑10 at that time were depriving the coastal areas of their sediment budget need to maintain the barrier islands, and that sort of thing. And supply the bays and estuaries with their needed input of sediment. And that they might be responsible for bank erosion, either immediate in the area, or further downstream.

The Department contracted a $200,000 study with the Bureau of Economic Geology at UT, and the U.S. Geological Survey in the area of greatest activity on the Brazos River from about I-10 down to the Brazoria County Line. It went on for two or three years. And that study conclusively demonstrated that even though we had been permitting mining there for more than 50 years, that there was no evidence of a reduction in the sediment that was actually reaching the coast, and there was no evidence of either bank erosion in the immediate area where it was going on or downstream.

That requirement was never perceived to apply upstream of the first dam. Because obviously, once you got upstream of the first dam, the likelihood of it having any impact on the coast was very slight. And we do look at erosion in the immediate area of a permit as a routine part of our environmental review of these things. Excuse me. The general permit changes, one is the notice time. The applicants are required to notify us 30 days of when they want to start work.

Then we have a requirement for a 30-day review of notice and all of the rest of that. So the time has expired before we have a chance for staff to really review public comment or the other input. The application fee was originally when the Legislature authorized us to have this general permit. They also looked at the fact that up until then, we didn't have an application fee at all. And they said, the application fees ought to cover the cost of review. And we thought at that time, since most of what we were looking at was intakes, outfalls and pipelines, that one day we would probably do it. And we put a $250 fee on there.

And then we back fit that fee to the amount of material. And at that time, we were charging 25 cents a yard for unsorted material. And so that would allow up to 1000 cubic yards, which is more than any project that was intended to be under a general permit would ever amount to. So the pricing changes, the program was created in 1911, and given to a Fish and Oyster Commission at that time, because of the perception that this kind of activity could affect certainly fish, and perhaps wildlife and oysters, in the bays. And the price at that time was set at eleven cents a ton.

By 1973, it had been increased to 20 cents a ton. And then in 1997, as part of that overall review of the program at that time, they continued the price at 20 cents a ton, which seemed to be general market at that time. And initially set at 6-1/4 percent, whichever is greatest. Within a year it would go up to 8 percent. In 2009, the typical ‑‑ whichever is greater. In 2009, the typical is at 8 percent is greater than 20 cents a ton. In fact, it tends to average between 40 and 50 cents a ton. So what we are proposing is just to update and clarify and set a new base of 50 cents a ton, which shouldn't have a great impact if we are going from 40-something to 50 cents as a base, but raise that 8 percent to 10 percent. And that is the price at the gate. It doesn't include any transportation costs.

And then to resolve an issue that was brought up in an internal audit during the fall, where we don't have any authority to charge interest if somebody pays us late. Our only option would be to cancel their permit. It is destruction or nothing. And so we would like the authority to add interest if somebody pays us late. And the caveat is that any price changes have to be sent to the Governor's Office for approval. So the staff requests permission to publish these proposed changes in the Texas Register for public comment. And if there are any questions?

COMMISSIONER BIVINS: Any questions?

COMMISSIONER DUGGINS: Mark, I got one.

COMMISSIONER BIVINS: Yes. Commissioner Duggins.

COMMISSIONER DUGGINS: When on the first change about eliminating the publication in newspapers and instead of noticing by electronic media, would that include notice on the Parks and Wildlife website?

MR. MacRAE: Yes. We would put the entire application up on the website, where now they get a so-and-so intends to ‑‑ has requested a permit from Parks and Wildlife to excavate material in this part of the river. I mean, that is about all they get from the public notice. But we would be able to put the entire application up on the website, send electronic notice, and we would mail notices as we do now for the big ones, we would mail them to both individual mining permits and the general permits, to up- and downstream landowners within a half a mile.

COMMISSIONER DUGGINS: What about the river authorities exercising jurisdiction over the river?

MR. MacRAE: Their authority is separate to the extent that they have any authority, as is the Corps of Engineers, TCEQ might require a permit for discharges if they were washing material. But the Department's authority is separate and distinct from those other entities.

COMMISSIONER DUGGINS: I understand that. But I am saying would there be any ‑‑ there is a part of being a facilitating cross or good communications with other agencies who may or may not have an interest in it, should we consider notifying them?

MR. MacRAE: Definitely. We intend to do that now. I am not sure that we, that that is a consistent situation. But part of what we are doing is updating our contact lists you know, in the transition of this program, and trying to get a lot of these little loose ends nailed down. Notice should go to the Corps to rescind notice to TCEQ. River authorities should get it. The county judge should get it ‑‑ hopefully administrator. Those other entities that have not joined authority but separate authority over the same area, you know, should all be notified, I think, of this sort of thing. And then coordinate the reviews to the extent possible.

COMMISSIONER DUGGINS: I agree. What about the ‑‑ I am not sure I follow you on the role we play upstream of the first dam.

MR. MacRAE: No. That was a question relative to whether or not sediment would be deprived in the coastal sediment budget. Upstream of the first dam, pretty much all of the sediment would be intercepted. It wouldn't be going downstream from there, anyway. It either piles up within the reservoir or it piles up in the streams that come into there. And so the issue of whether that sediment would reach the coast is truncated by the existence of that dam.

COMMISSIONER DUGGINS: Well, but if you are not focused on the impact on the coast, and you are instead focused on the impact on the stream itself, how do we do that? For example, if ‑‑ a couple of years ago, there was a big problem west of Fort Worth on the Brazos where a bunch of gravel operators mining gravel on the Brazos, and it was filling in the river below PK Dam and impacting at least in some landowners' minds, impacting the quality of the river.

MR. MacRAE: Yes. What was going on there was, they were taking the caprock off the high ground and then dumping soil down the cliff into the river. They were outside of our jurisdiction. The only element there was potential authority of the Corps of Engineers for filling, if they thought that was a close enough issue. Or TCEQ stepped in and regulated those in terms of pollution of the river.

COMMISSIONER DUGGINS: Okay. Last comment. On the fees themselves, are you comfortable that 10 percent is market rate, I mean, it certainly would be low for an oil and gas lease royalty.

MR. MacRAE: In 1997 when this was most recently adjusted, the 20 cents per ton was about market rate. In fact part of the issue was whether our rate was different from GLO's. And GLO, after we looked statewide, they were selling sand and gravel off of uplands for exactly the same price, 20 cents. Which at that time was about 6 1/2 percent of their sales price. And so we set it there, and then set within, I think it was, eight months, it went up to 8 percent. It just seems that the Department rationally ought to be getting more. I mean, we are open to comment on this. Obviously, this would be going out for comment, but ‑‑

COMMISSIONER DUGGINS: Well, I think it highlights the Chairman's point is that we set these rates, and then they sort of get pushed to the back shelf, and we don't go back and revisit them frequently enough to make sure that they are an appropriate rate. And I don't know how you do that other than require that it be revisited on an annual basis. This is what I would recommend. So that we don't get to where something sits there for several years unadjusted.

MR. SMITH: Rollin, I assume there is no reason why we couldn't do a regular review, looking at the fair market value of these rates and assess that based on GLO rates and other entities that might be doing this, and just check that rate schedule on an annual basis.

MR. MacRAE: Yes. If you put into the rule that staff would bring this point back on an annual basis or present it to you on an annual basis ‑‑

COMMISSIONER HOLT: I think we ought to do it that way. I don't think they need to come to the Commission every year. Just adjust accordingly.

COMMISSIONER BIVINS: Just to market value.

MR. MacRAE: I know with shell, when we reset shell back in 85, we established a particular price, and it was adjusted every six months according to the Consumer Price Index. And I don't know what it is now. We haven't had a shell grader since 1982. But it is probably several times what it was in 1982.

COMMISSIONER HOLT: But nobody is dredging shell.

MR. MacRAE: Right.

COMMISSIONER HOLT: Why, you can't get the other permits? What is the issue?

MR. MacRAE: Well part of it is the cost of a shell dredge. The last shell dredge was in bad shape when Parker Brothers shut down. And other thing is that Parker Brothers owned limestone pits in Comal and Hays County, were able to supply crushed limestone to the coast for less than half the price that they could dredge shell and deliver it to a dock. And that is what it was mostly being used for was road base and concrete.

COMMISSIONER DUGGINS: Were those dredges operated by Caterpillar-powered ‑‑

COMMISSIONER HOLT: Yes, they were. The problem was the other costs. Transportation costs, I am surprised, it may not come back. You have got other permit issues, too.

(Simultaneous discussion.)

COMMISSIONER DUGGINS: Let the record reflect I was jesting.

COMMISSIONER HOLT: That is why I have got to stay out of this thing.

COMMISSIONER BIVINS: Any other comments?

(No response.)

COMMISSIONER BIVINS: Thank you very much.

MR. MacRAE: Thank you.

COMMISSIONER BIVINS: I will authorize staff to publish this item in the Texas Register for the required public comment period.

MR. MacRAE: Thank you very much.

COMMISSIONER BIVINS: Thank you. Committee Item Number 6, Acceptance of Land Donation, Bexar County, Approximately 3,000 Acres in Government Canyon State Natural Area. Mr. Ted Hollingsworth.

MR. HOLLINGSWORTH: Chairman, Commissioners, good morning.

COMMISSIONER HOLT: Keep it moving. I'm getting hungry.

MR. HOLLINGSWORTH: This is Ted Hollingsworth. I am with the Land Conservation Program here at Texas Parks and Wildlife. This item is a second reading of this item. If you agree, then you will see the action item presented tomorrow in public session. It pertains to the donation from the City of San Antonio to Texas Parks and Wildlife of approximately 3,000 acres of land to be added to Government Canyon State Natural Area. Cooperation and management as part of the State Natural Area. Those lands are shown in red. I believe it is eight different parcels. They were bought with Proposition 1 and Proposition 3 dollars by the City to help protect the recharge of the Edwards Aquifer. Part of the reason for them to transfer those, is that there is some public expectation in San Antonio area that there would be access to those lands. The City of San Antonio has not been able to invest in the staffing and infrastructure necessary to provide that access. Transfer to Texas Parks and Wildlife to be managed as part of the State Natural Area would make it, would be a logical ownership and management of those lands. There are golden cheeked warblers on those lands. The Fish and Wildlife Service is now doing an assessment of the value of that habitat for the warblers. There would be some restrictions on public use. They would be identical to those currently on the State Natural Area. Most of that State Natural Area has restrictions, especially during the breeding and nesting season, about the density of public activity. We would be in the driver's seat in terms of determining what an appropriate level of development and public access would be to those lands. There have been several more public comments since I prepared this slide. But overwhelming response from the public in favor of making this move. This is the motion that you will see tomorrow, if you would like to proceed. I would be happy to answer any questions that you have.

COMMISSIONER HOLT: How big was the original piece?

MR. HOLLINGSWORTH: 8,000 acres. It would increase to 11,000 acres. Quite an impressive accumulation of land for San Antonio.

COMMISSIONER HOLT: It is a urban park. It may be the largest in the United States at this point, isn't it? It is a pretty major city.

MR. HOLLINGSWORTH: Maybe in the lower 48.

COMMISSIONER HOLT: No, Alaska, I guess. No, I mean for a major, a larger city.

MR. HOLLINGSWORTH: Actually, Franklin Mountains would be larger.

COMMISSIONER HOLT: That is right. How big is that?

MR. HOLLINGSWORTH: 29-27,000.

COMMISSIONER HOLT: Okay. Both in Texas.

MR. HOLLINGSWORTH: Both in Texas.

COMMISSIONER HOLT: There you go.

COMMISSIONER BIVINS: Any other comments?

(No response.)

COMMISSIONER BIVINS: If not, I will place this item on the Thursday Commission meeting agenda for public comment and action. Thank you, Ted. Committee Item Number 7, Acceptance of Land Donation and Land Exchange from Brazos River Authority, Palo Pinto County, Approximately 700 Acres for 200 Acres of Submerged Lands at Possum Kingdom State Park. Once again, Ted Hollingsworth.

MR. HOLLINGSWORTH: Chairman and Commissioners. Good morning. My name is Ted Hollingsworth. I am with the Land Conservation Program. This also is the second reading of this item. It pertains to land owned by the Brazos River Authority to be transferred to Texas Parks and Wildlife to be added to Possum Kingdom State Park, which is about 60 miles west of Fort Worth. The numbers are changed some. We have started survey work.

The tract, the submerged tract of land that would be conveyed to Brazos River Authority, is about 160 acres. The tract that would come to Texas Parks and Wildlife in the first transaction would be about 300 acres. There is an additional 300- to 350-acre tract that we have asked them to consider transferring to Texas Parks and Wildlife. It is undeveloped land. It is all uplands. It would make nice recreation lands. The Brazos River Authority has agreed to proceed in good faith to evaluate the feasibility of that second transaction.

There is also a short distance, about 900-foot of a water pipeline that runs through one corner of that park. Brazos River Authority would like for us to waive future fees for the occupancy of the state park by that pipeline. This is roughly where those two tracts of land, the upper one, the northern one, with all of the water frontage being the one that would be transferred to Texas Parks and Wildlife in this first transaction. The submerged land is in fact entirely submerged. And apparently we ended up with it, of course back in the 1930s when this was all initially transacted, we ended up with this piece of land in error. It was the original intention that everything below the pool elevation would end up with the Brazos River Authority.

So this is more of a housekeeping transaction than it has any real operation significance for Texas Parks and Wildlife or the Brazos River Authority. The location of that pipeline is shown in this slide. This is the second reading. If the Commission is in agreement, we will proceed to take it to public session tomorrow and read this motion. I will answer any questions you might have.

COMMISSIONER BIVINS: Commissioner Duggins.

COMMISSIONER DUGGINS: Any suggestions of what we might do to help encourage the BRA to convey that additional land?

MR. HOLLINGSWORTH: The BRA is currently in a series of discussions and meetings related to it. In fact, there is actually legislation pending that would authorize them to divest themselves of a large amount of land around the lake. The driver for that is the fact that there is approximately 200 small homes, cabins, that are on leased lands. And they have been leasing these lands for decades. The people that have built those cabins and homes have been bringing pressure on BRA and the Legislature to allow them to buy the land that their homes are on. And so they are actively considering what to do with especially these larger tracts, like those adjacent to the park.

COMMISSIONER DUGGINS: Well, that is my concern that if we lose the opportunity due to the lessees whining about the circumstances, and ended up being able to buy the land.

MR. HOLLINGSWORTH: Yes, sir. You can see where the actual waterfront cabins are. Our concern, and I don't want to put words in Walt's mouth. But our concern is that this is a one-time opportunity, and if those lands get sold into the private sector as part of this divestiture, that the odds of us being able to then add those to the Possum Kingdom State Park and expand the recreation opportunities there would be gone.

COMMISSIONER DUGGINS: I think it is important.

MR. DABNEY: Commissioner, Walt Dabney, State Parks Director. In that previous slide, if you go back, that had the lower parcel there, we really looked at maps and tried to identify every bit of land that has no current development on it that could be added to the park. Because I don't think it is their intention to want to further develop it. Those leased situations were supposed to be a 99-year lease, and then it would go away or whatever. That hasn't happened, and politically, those are probably going to get sold to whoever has that lease now. That 355, I don't know the answer.

We are going to continue pursuing with BRA. But that would be incredible lands for trails and so forth for the park. The 355 at one time was part of the state park. We don't know why, but for some reason, Parks and Wildlife gave it back to BRA. And but we have got it back now, thank goodness. It wasn't developed. But whatever we need to do to get that 355 acres will make this a much more viable park.

COMMISSIONER DUGGINS: Well, which 355?

COMMISSIONER BIVINS: Yes. Which ones?

MR. DABNEY: I am sorry. We are going to get the upper 355 in this first deal.

MR. HOLLINGSWORTH: Yes. In this first, but actually that entire 700-acres-plus was part of the park. In the late 1960s, BRA came to us, sent us a letter saying you all haven't put any trails or developed that. We would like to develop some recreational facilities on it. Would you please transfer it back to us. We did. Those recreational facilities never materialized. And so a year ago, we approached them about transferring it back to us, since we now have the visitation and the staff and the need in terms of visitation to justify putting some recreational opportunities on those lands.

MR. DABNEY: We can get with you and share who we are talking to, and so forth.

MR. SMITH: Yes. We have had a good dialogue with BRA on this, and have worked with their general manager and some of their Board members and External Affairs folks on effectuating this. But maybe we could involve you in some of those discussions as we move ahead. I think if we are able to effect this transfer, that will certainly be a very positive step forward. We have got a very significant relationship with BRA because of environmental flow issues in the river as well. So there is a lot of reason for us to interact. And why don't we talk with you about this, and see if there are some opportunities maybe to help encourage them on that donation.

MR. DABNEY: Senator Estes' office has been very supportive of having this happen. In fact, they didn't want it to go the other way to where it would be developed. So he is very supportive of this, and this is his district.

COMMISSIONER HOLT: What size is Possum Kingdom State Park as it stands right now? Roughly acreage?

MR. HOLLINGSWORTH: I knew that at one time.

MR. SMITH: A little over 1,000 acres, isn't it, Walt?

MR. DABNEY: Probably. We can find out exactly.

COMMISSIONER HOLT: No. That is fine. I was just curious. From now on, if we are doing these kind of things, just put the original, so we know. You are talking about 1,100 acres. If you get this 700 you are darn near doubling it. That would be nice. Plus you get so much more waterfronts.

COMMISSIONER BIVINS: Any other comments for Ted on this issue?

(No response.)

COMMISSIONER BIVINS: Hearing none, I will place this item on the Thursday Commission meeting agenda for public comment and action. Committee Item Number 8, Land Acquisition in Bandera County, 732 Acres at Lost Maples State Natural Area. Once again, Ted Hollingsworth.

MR. HOLLINGSWORTH: Chairman, Commissioners, good afternoon. My name is Ted Hollingsworth. I am with the Land Conservation Program. This also is the second reading of an item that is proposed for action tomorrow. It is the purchase of acreage to expand Lost Maples State Natural Area, which is, as you can see, is a little farther out from San Antonio than Government Canyon and the Hill Country but still a very popular destination park for people in Central Texas.

This tract is particularly significant in that it would, as you can see, encompass all of the upper Can Creek drainage, which is the primary topographic feature in the park. It gives the park the canyons which are the dramatic viewsheds in that park. We have been working with an extremely cordial and willing seller. We don't quite have enough money in '09 land sale proceeds or authorization to make that purchase outright. He has surveyed out 600 acres of that, which he will sell to us immediately, with an option to buy the remaining. Actually is it not 132. We have got the survey back recently. It would be another 103 acres. But there is 34 acres sandwiched between our two fences which he owns, which is ‑‑ and he is going to donate that land.

Again, he has been an exceptionally easy gentleman to work with and very much in favor of the park. We got the appraisal back this morning. We are purchasing the property at $2,500 an acre. The appraisal price is $3,300 an acre. It is a bargain sale on top of his willingness to work with us. He is very concerned that there would ever be any surface disturbance from oil and gas exploitation. So he wants to keep the mineral interest, but he is conveying the executive rights to us. So that those would not be leased or exploited without our authority. Staff thinks this is an exceptional acquisition, and with your blessing you will see this motion tomorrow.

COMMISSIONER BIVINS: Ted, could you go back to the aerial photograph?

MR. HOLLINGSWORTH: Yes, sir.

COMMISSIONER BIVINS: You see Lost Maples, and then south and west of there, there is another area. What is that?

MR. HOLLINGSWORTH: That is Garner.

COMMISSIONER BIVINS: That is Garner. Okay.

MR. HOLLINGSWORTH: Yes, sir.

COMMISSIONER BIVINS: Okay. Any comments for Ted on this? This is a great deal.

(No response.)

COMMISSIONER BIVINS: Hearing no further comments or questions, I will place this item on the Thursday Commission meeting agenda for public comment and action. Let's see, at this time, the Conservation Committee Items 9, 10 and 11 will be discussed in Executive Session. After Executive Session, we will receive a presentation on Items 10 and 11.

Therefore, I would like to announce that pursuant to the requirements of Chapter 551 Government Code referred to as the Open Meetings Act, an Executive Session will be held at this time for the purpose of deliberation of real estate matters. Under Section 551.072 of the Texas Open Meetings Act, and seeking legal advice from the General Counsel under Section 551.071 of the Open Meetings Act. We will now recess for Executive Session.

(Whereupon, the Committee recessed into Executive Session at 12:10.)

(Simultaneous discussion.)

COMMISSIONER BIVINS: At this time, I see I had better give it my own gavel. All right. At this time, we will reconvene the regular session of the Conservation Committee. Committee Item Number 9, Regarding the Border Fence Involving 2.989 Acres at the Anacua Unit of the Las Palomas Wildlife Management Area. No further action is required.

Committee Item Number 10, Land Exchange, Galveston County. Galveston Island State Park. Mr. Corky Kuhlmann.

MR. KUHLMANN: Good afternoon. For the record, my name is Corky Kuhlmann with the Land Conservation Program. This item is a land exchange at Galveston Island State Park, Galveston County, south of Houston. This item is an exchange for a tract of land that is off the coast, from where the state park used to be, to be rebuilt, I guess. And if you can see in the magenta circle there, it is an irregular piece of boundary.

This item will involve exchanging Tract 1. Parks and Wildlife will get approximately eleven acres in Tract 1 in exchange for Tract 2 and Tract 3. As you can see on the polygons to the right, before the exchange, the very irregular boundary. After the exchange, a more even boundary. This exchange will result in a consolidation of a private tract as seen in the blue polygon. The landowner will deed approximately 11 acres to Texas Parks and Wildlife, pay a negotiated amount of difference, pay all of the surveying and appraisal costs, plus clear the old amphitheater site to Texas Parks and Wildlife's satisfaction.

The old amphitheater site is in ruins. It has been for quite a few years. It is a liability to both the landowner and to the state park because we do have park visitors that wander over there, and there is no gate to keep them out. Parks and Wildlife will lift all deed restrictions composed by TPWD and the Stewart Mansion tract and the theater tract, and deed approximately 6.2 acres of land to the adjacent landowner existing, including the existing maintenance complex. The existing maintenance complex was flooded during Ike. It was old, and we are not losing much by losing this maintenance yard.

This is a motion that we would put in front of you tomorrow. And I would be glad to take any questions. We did have a public meeting. No one showed up to the meeting, but the Galveston Island State Park Friends Group has signed a letter saying that they approve of this exchange.

COMMISSIONER BIVINS: Very well. Is there any additional comments or questions for Corky at this time?

(No response.)

COMMISSIONER BIVINS: If there are none, I will place this item on the Thursday Commission meeting agenda for public comment and action. Committee Item Number 11. Land Transfer, Taylor County, 91.3 Acres at Camp Tonkawa Boy Scout Camp at Abilene State Park. Once again, Corky.

MR. KUHLMANN: Again for the record, my name is Corky Kuhlmann, Land Conservation Program. This a land exchange or land trade or giveaway, I guess, at Abilene State Park, Keller County, Texas. The state park and the Boy Scout Camp is the Buffalo Gap, just south of Abilene, Texas. Parks and Wildlife has a request from Texas Trails Council, Boy Scouts of America to transfer approximately 91 acres to the Scout Camp. You can see it is the red polygon to the east of the existing camp, the existing park, excuse me. This is a little closer view of the proposed land transfer.

A little history, the whole property was deeded to Parks and Wildlife, for free, for a park to be built by the CCC, and have a CCC camp. The Scouts used the property, even before it was deeded to us, the 91 acres in question. It was deeded to us. The Scouts continue to use the property, until 1949, we entered into the first lease agreement with the Scouts. And then renewed that agreement in '56. The current lease expires in 2018. If the Parks and Wildlife does transfer the property to the Scouts, we will place a conservation easement on it, which would give Parks and Wildlife a say in management issues, and determine where and if a structure could be built, including roads and trails.

And also this conservation easement will protect CCC structures and archaeological sites. There is cultural and natural resources of many sorts on the property. In addition to the conservation easement, there will be deed restrictions that will state that if the Boy Scouts no longer use the property as a Scout Camp, it will revert back to Parks and Wildlife and they cannot use the property as collateral on any loan. This is the motion that you will see before you tomorrow. And I would be glad to take any questions.

COMMISSIONER BIVINS: Any questions or further discussion involving this issue?

(No response.)

COMMISSIONER BIVINS: Hearing none, I will place this item on the Thursday Commission meeting agenda for public comment and action. Mr. Chairman, I think we have completed our business for the day. I will relinquish the gavel to you.

COMMISSIONER HOLT: Okay. That may be the longest Conservation Committee meeting.

COMMISSIONER BIVINS: I aim to please.

COMMISSIONER HOLT: But you handled it well, Chairman Bivins. We will now move on to the Finance Committee. (Whereupon, the meeting was concluded at 2:10 p.m.)

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission
Conservation Committee
LOCATION: Austin, Texas
DATE: May 27, 2009

I do hereby certify that the foregoing pages, numbers 1 through 70, 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.

6/09/09
(Transcriber) (Date)
On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731


Back to Top
Back to Top