Texas Parks and Wildlife Commission
Conservation Committee Meeting

Nov. 3, 2010

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

BE IT REMEMBERED, that heretofore on the 3rd day of November 2010, 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 BIVINS:  Thank you, Mr. Chairman.

COMMISSIONER HOLT:  Thank you.

COMMISSIONER BIVINS:  The first order of business is the approval of the previous committee meeting minutes from the August 25th meeting, which have already been distributed.  As I recall, there was some discussion in the wording on an issue of a particular motion and is that reconciled?  Commissioner Duggins, was that within ‑‑

MS. BRIGHT:  It’s been corrected, Chairman.

COMMISSIONER BIVINS:  It’s been corrected?  Okay.  Thank you.  All right.  Thank you very much.  Let’s see.  Is there a motion for approval of the minutes, which have been distributed?

COMMISSIONER MARTIN:  So move.

COMMISSIONER BIVINS:  Made by Martin.

COMMISSIONER HIXON:  Second.

COMMISSIONER BIVINS:  Second by Hixon.  All those in favor please say aye.

(A chorus of ayes.)

COMMISSIONER BIVINS:  Any opposition?  Hearing none, the motion passes.  I would like to say there are a couple of changes to the order of the agenda that I need to mention.  Committee Item Number 2, Val Verde County Land Project:  Devils River State Natural Area Property Exchange will be heard after the Executive Session this afternoon.  Also, Committee Item Number 11, Land Exchange in Blanco County, 300 Acres for the Pedernales Falls State Park Conservation Project, will also be heard after Committee Item Number 8.

Committee Item Number 1:  Update on TPW Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan.  Mr. Smith.

MR. SMITH:  Thank you, Mr. Chairman.  A couple of land and water action plans or action items from the Plan that I want to report on.  I already touched on one of them, which had to do with the extensive outreach and planning efforts that our wildlife division team is doing with private landowners.  You will recall there was a very specific actionable goal to increase the number of acres under Parks and Wildlife, Wildlife Management Plans from 23 and a half million to 26 million acres by December of 2011.

At this juncture, we have, I think, 6300 landowners or cooperatives with active plans, encompass 25,467,000 acres.  So I think, with a little luck, Clayton may get there by Christmas.  So we’re well on our way on that front.

Also, another action item was making sure that we were doing everything we could to locate and study and identify and understand the properties of springs, that we haven’t had a chance to study and really understand ‑‑ obviously, we certainly recognize the criticality and value of our springs, in terms of sustaining base flows and our creeks and rivers and we’ve got a multidisciplinary cross-division team that has been formed from Inland Fisheries, Wildlife, Coastal Fisheries and state parks that is working on that, going out and collecting various hydrologic characteristics, physical and chemical and biological properties from those springs and then maintaining that in our natural diversity database.  So a very important biological data that the team is collecting at this time.

The Wildlife Division has been in the process of transitioning their prescribed fire program to meet the National Wildfire Coordinating Group standards or the NWCG standards.  That’s the very best in class, highest standard and the team has been making a lot of progress on that front.  Recently hired Glen Gillman, who’s a very accomplished and experienced prescribed fire specialist, to lead that team and I think that’s going to help a lot, as we work to expand our prescribed fire acres around the state, so that’s really encouraging.

I mentioned the desert bighorn sheep restoration and, again, this is a big deal with respect to reintroducing desert bighorns into the Bofecillos Mountains out at Big Bend Ranch State Park and so, our wildlife biologists and state park team have been working hand in hand to try to get that accomplished.  We’re hoping to have that done, maybe, by the end of this calendar year.  So I think that would be a very, very exciting development, as we work to stock those mountains.

I think it’s important for all of you to know that, as part of that effort, we continued a very aggressive control efforts – the aoudad sheep and, you know, we have a lot of concern about the possible competition but also the interspecific transmission possibility of some diseases that can be transmitted from aoudads to desert bighorn and so we have and will continue to have an active role of controlling aoudad sheep in that area, which we’re going to be putting bighorn sheep in.  So just wanted to make sure that this Commission was apprised of that.  It is something that is of interest to some of our constituents but obviously, an important biological need that I know this Commission has talked a lot about.

We also have talked, in the last year about, you know, the significance of the fact that zebra mussels were found at Lake Texoma, obviously not a welcome interloper in our state, to say the least.  Our fisheries biologists also discovered zebra mussels in Sister Grove Creek, which is a distributary from Lake Texoma that ultimately leads into Lake Lavon, which is, of course, the headwaters of the Trinity River and one of the sources of drinking water for the city of Dallas.

And so Gary Saul and his team, Dave Terre, Brian Van Zee and a bunch of others worked very, very diligently to secure the appropriate approvals from EPA and TCEQ and the Department of Agriculture to do an experimental treatment along 32 miles of Sister Grove Creek, to try to kill zebra mussels that had been found there.  We absolutely want to keep them out of the Trinity River.  That is a major goal of ours.  They worked very cooperatively with the North Texas Water Municipal District to stop interbasin transfer of water so that it stopped the possibility of zebra mussels being transmitted through those interbasin transfers.

Really, an extraordinary effort and, Gary, I want to compliment you and Dave and Brian and your team on that because they had to work through a very complicated permitting process to get approvals to do that and absolutely the right thing to do, in terms of protecting our fisheries and our water bodies from an invasive species ‑‑ an exotic species that we’ve seen had hugely detrimental impacts in other water bodies and other states so kudos to that team.

COMMISSIONER HOLT:  Have we done that?

MR. SMITH:  We have.

MR. SAUL:  We have and ‑‑

COMMISSIONER HOLT:  It’s all right, Gary.  Go ahead.

MR. SAUL:  I’m used to yelling from sitting.

COMMISSIONER HOLT:  I understand.

MR. SAUL:  Excuse me.  I’m Gary Saul, Inland Fisheries Director.  We have done multiple treatments on the stream.  We felt as though we did a very, very successful treatment.  The first time we found a few stragglers in the upper reaches of the stream.  We came back.  Within our permit, we still had the opportunity to come back in and re-treat.  We have done that and ‑‑ excuse me ‑‑ today we have our folks ‑‑ we have three teams up there today, looking to see whether or not there are any other canaries in the stream, basically.

But we believe we have done a very, very good job now to get them out of there.

COMMISSIONER BIVINS:  How positive can we be that we’ve achieved success?

MR. SAUL:  It’s probably impossible to say that we have 100 percent success.  We’ve gone out and we’ve turned rocks, we do anything and everything to look to see where they’ve been.  We had monitors ‑‑ in-stream monitors during the period of treatment to go ahead and look at what the salt concentrations were and basically what we used was a potassium chloride that would be harmful to the ‑‑ kill the zebra mussels but not harm the other aquatic life.  And by raising that salt level, if we could hold it up for about 48 hours, that would typically go ahead ‑‑ that would kill the zebra mussels.

The graphs that we have, all the data that we’ve collected, shows that we did an excellent job of bringing it up to that threshold level and holding it.  Little variability in the very upper reaches of the stream and that’s where we found those few remnant individuals and that’s where we absolutely need to go back and re-treat because they become a new founding population for everything downstream.

So we’re targeting very, very aggressively now upstream ‑‑

COMMISSIONER BIVINS:  This protocol doesn’t interfere with any other plant or animal?

MR. SAUL:  No, sir.

COMMISSIONER DUGGINS:  Well, to your comment on how successful this will be, I was at a boat mechanic’s place right near Granbury last week and he had said he had three boats brought to him that were Granbury boat owners that had been up at Texoma and all three of them, the motors had failed due to zebra mussels.  So that’s the concern I had is boaters.  How critical it is to look at their boats and ‑‑ I mean, you know, the shaft and the motor were just full of zebra mussels.

MR. SMITH:  And remember, these things are about the size of your fingernail so ‑‑ and there are ample places on the hull and motors of boats where they can be and which we don’t catch them.  I mean, you know, I want you all to know that, you know, complacency has not been an option for us and, you know our Inland Fisheries and law enforcement teams have really, really been pushing hard ‑‑ and communication ‑‑ on the outreach and education and enforcement.  It’s amazing how many people know what a zebra mussel is these days is a function of that effort.  But, you know, the hello-goodbye invasive species campaign you helped launch with ‑‑ the governor has been part of that ‑‑ to stop aquatic hitchhikers, which is a successful program by the Fish and Wildlife Service, which we are a part of, another important effort there to educate the boating community about the criticality of not transmitting these exotic species from one lake to another.  So ‑‑

MR. SAUL:  And Brian Van Zee of our staff, just went down to the National Marina Association Meeting that was held down at South Padre Island, I believe a week or two ago and had an excellent presentation, had a very, very good interaction with everybody that was down there.  There’s a tremendous level of interest.  It’s extremely costly to the owner and the marinas have a great opportunity.  They are very important to us, in terms of spotting a vessel that’s being moved and to be launched at their place or looking at one that coming out and they’ve been very helpful, in terms of identifying those boats to us.

COMMISSIONER DUGGINS:  Are we going to marinas ‑‑ just for example, at Granbury ‑‑ and alerting those where the boat ramps are, that you want to be ‑‑

MR. SAUL:  Yes.

COMMISSIONER DUGGINS:  ‑‑ proactive.

MR. SAUL:  Yes, absolutely.  We have signs up ‑‑  all over Lake Texoma we’ve put signs up on all boat ramps to go ahead and try and educate the public and then our staff have been going to various ‑‑ to marinas and other places to visit ‑‑

COMMISSIONER DUGGINS:  Inbound.

MR. SAUL:  Yes.

COMMISSIONER DUGGINS:  In Texas.

MR. SAUL:  To try and let people know as it’s coming in.

COMMISSIONER DUGGINS:  Thank you.

MR. SMITH:  Thank you, Mr. Chairman.

COMMISSIONER BIVINS:  Let’s see.  As I stated earlier, we will hear a presentation on Committee Item Number 2 after the Executive Session this afternoon.  We now move to Committee Item Number 3, the Potential Black-footed Ferret Reintroduction.  Sean Kyle.

MR. KYLE:  Thank you, Mr. Chairman, Commissioners.  For the record, my name is Sean Kyle.  I’m the Wildlife Diversity Biologist for the Panhandle District.  Texas Parks and Wildlife is currently examining the feasibility for a small, experimental reintroduction of the black-footed ferret.  This project would be a collaborative effort with several other agencies and would support multiple objectives under Texas Parks and Wildlife Land and Water Resources Conservation Plan.

But first, I’d like to introduce some of the partners that are involved in this effort with us and they’re here to help answer the Commission’s questions.  First of all, Mike Bodenchuk is in the audience out here.  Mike is the director of Texas Wildlife Services.

Next to him is Gary Mowad.  He’s the state administrator for Ecological Services in the Wildlife Service and Pete Gober is also here.  He’s the U.S. Fish and Wildlife Service black-footed ferret recovery coordinator and, as I said, they’re here to help answer any questions that the Commission may have on this.

First off, a little bit of history on this species.  The black-footed ferret is really considered to be a keystone species for the Great Plains ecosystems and black-footed ferrets are closely tied to prairie dogs.  They live in prairie dog towns, they kill and eat prairie dogs.  Their historic range coincided with three species of prairie dogs on the Great Plains, ranging from the Canadian Plains all the way down into Mexico and once included nearly half the state of Texas.

Now, habitat loss from agricultural conversion, poisoning of prairie dogs, plague, distemper all contributed to a severe decline in these populations and the range of this species until it was actually thought to be extinct in 1974.

In the early 1980s, a small population of about 18 individuals was rediscovered in the Meeteetse Valley of Wyoming.  That really kicked off a big effort of captive breeding and reintroduction efforts that have since brought this species back, really from the verge of extinction.

Black-footed ferrets have been reintroduced in 19 locations across eight states, Canada and Mexico, on both public and private land sites and current estimates suggest that the populations are now at about one-third of the goal for de-listing of the species.

It’s important to note here that this is actually an endangered species that will be de-listed.  To date, the reintroduction efforts, as you will note from this map, have been heavily focused on the northern plains.  Texas Parks and Wildlife and partner agencies are examining potential public and private sites for a reintroduction in the Texas Panhandle and southern High Plains.

So in terms of what we would need to do this, we need approximately 1500 to 2000 acres, at a minimum, of active prairie dog towns, with a willing public or private landowner or combination of landowners.

A reintroduction could be initiated on a smaller acreage of prairie dog towns, with the assurance that towns would be allowed to grow to a point that would support a population of ferrets.

Second, we would need a state scientific research permit and a permit under Section 10(a)(1)(A) of the Endangered Species Act.

Third, we would need to conduct some extensive public outreach to identify and address any potential or perceived impacts from this reintroduction.

Now, we start talking about endangered species, it’s important to discuss some of the legal issues associated with this and, first off, it’s important for us to state that the protection of private landowners and their rights, with respect to endangered species compliance, is really imperative to this effort.

Second, the permitting process for this under Section 10(a)(1)(A) of the Endangered Species Act, pertains to ‑‑ and this is a quote ‑‑ "establishment and maintenance of experimental populations for the propagation or survival of the species."  Now, this portion of this Act is extremely flexible in how it can be applied and it actually allows us to craft a very strong package of regulatory assurances for landowners that help protect those landowners ‑‑ their operations, ranching and farming operations and limit any potential impact that this project might have.

For example, I took some of these from a recent reintroduction that happened up in Logan County, Kansas that was both on private and Nature Conservancy land.  First of all, private landowners surrounding the reintroduction site can continue normal ranching and farming practices, including the use of legal toxicants.

Note that this considers the ‑‑ prairie dog control, with legal toxicants to be part of normal ranching and farming practices.

Second, private landowners outside of the boundaries of this release site, will not be held responsible for any natural or accidental ferret mortality or habitat destruction.  That means there is no take of habitat or individuals outside of these boundaries and functionally ‑‑ except in the case of intentional killing of individual animals ‑‑ so functionally, what this means is that you actually have an endangered species within a set of confined ‑‑ predefined boundaries.  Outside of that, we don’t have an endangered species.

Next, this project includes boundary control for prairie dogs around the reintroduction site and this boundary control would be carried out by Texas Wildlife Services and will include poisoning of dogs around the boundaries and on private land outside the immediate boundaries, where that is required.

Next, the project ‑‑ it’s important to note that this project is experimental and will remain experimental and that means that the permitting process for this project can be reviewed or renewed indefinitely, under Section 10(a)(1)(A) of the Endangered Species Act.  There is no requirement to change that status and that means that, until this species is de-listed, we always have an escape clause.

So in the event that the land changes hands where a landowner decides he does not want to continue with this effort or if anything else does not work out, we can catch these ferrets and discontinue the project.

So here’s a brief update or list of what we’ve been doing on this effort.  First, the Texas Black-footed Ferret Working Group has been formed as an inter-agency effort to examine the feasibility of a black-footed ferret reintroduction to Texas.  This working group includes Texas Parks and Wildlife, U.S. Fish and Wildlife Service, U.S. Forest Service, Texas Wildlife Services, Bureau of Land Management, and research partners from Texas Tech University and West Texas A&M.

Texas Parks and Wildlife has developed an outreach plan to inform stakeholders on this issue and obtain feedback and address any concerns they may have.  That outreach plan, the working group’s currently looking at it and we are actually planning an initial outreach meeting, to be held in Amarillo in early December.

Texas Parks and Wildlife is also collaborating with U.S. Forest Service and Texas Wildlife Services to assess part of the Rita Blanca National Grassland.  That’s a potential reintroduction site and this includes mapping of prairie dog colonies and dusting to control plague.  If there’s interest, we will consider other public and private sites for this but at this point, we’re really in the stage that we’re looking for a place to carry out this project.  And, that concludes my presentation.  I’ll gladly answer any of your questions or refer those to my agency partners.

COMMISSIONER BIVINS:  Sean, do we have a representative from the BLM here?

MR. KYLE:  We do not.

COMMISSIONER BIVINS:  I would just like to ‑‑ are you aware of their efforts, along this line?

MR. KYLE:  I’m aware that they have interest in this project.  Currently, the one piece of property that the BLM owns in Texas is the Cross Bar Ranch.  They have some interest in that.  They’ve done a white paper on it.  Currently, they’re in the process of looking at habitat suitability models.

As you’re probably well aware, there are no prairie dogs on the Cross Bar Ranch.

COMMISSIONER BIVINS:  That’s by design.

MR. KYLE:  There’s a significant amount of work that would actually have to be done to get to that point so, they have interest.  It’s way out in the future, if they were to get to that point.

COMMISSIONER BIVINS:  I would like to make a recommendation that we have the concerted effort to try to contact them because they are getting way ahead of themselves in this process and ‑‑ I mean, I really appreciate your presentation today and I really appreciate the fact that our department is handling this in a manner that is, you know, in a way that the landowner can get an idea of what’s involved prior to the program beginning, whereas the BLM and their initial meeting in the Panhandle, they treated the Cross Bar as a laboratory that they were ready to begin the process in and they were ‑‑ it was not ever made clear until the actual meeting that, in order to release the ferrets, you had to first introduce prairie dogs into the habitat, which the surrounding landowners had been trying to eradicate for generations and it’s just a very unfortunate set of circumstances.

MR. MELINCHUK:  Chairman, I’m Ross Melinchuk, Deputy Executive Director for Natural Resources.  I can assure you we’ve had those conversations with the BLM leadership and kind of alerted them that, as a partnership, they were getting a little bit ahead of the rest of the partners and I think they recognized that and have throttled back a bit with the full understanding that it may be a potential site, but we’re talking a number of years down the line and I think they would just ‑‑

COMMISSIONER BIVINS:  I want to say how much I appreciate the efforts and the processes that we, you know, followed in making this presentation today and I think we’re doing it in a correct manner but just make sure ‑‑ we want to make sure everybody’s talking to everybody else.

MR. MELINCHUK:  Yes.  Good point.  And something where, as a team, I was sort of underscoring that we’re all in this together and we need to be sort of approaching it in an agreed upon fashion and I think they understand that now.  The rest of the partners are very much on board.  So.

COMMISSIONER HOLT:  Where is Rita Blanca National Grasslands?

VOICE:  Dalhart.

MR. KYLE:  Dallam County near ‑‑ extreme Panhandle.

COMMISSIONER HOLT:  Okay.  And where is the Cross Bar Ranch?

COMMISSIONER BIVINS:  It’s in Potter County, just south of the Canadian River, between Amarillo and the Canadian River.  Right across the river from [indiscernible]

COMMISSIONER HOLT:  Yes.

MR. KYLE:  Chairman Bivins, I’d like to add that there’s no way that this project can really be ‑‑ it cannot take place without a partnership of various agencies.  If it were to take place on the Cross Bar at some point in the future, other agencies would have to be involved in that, in terms of boundary control, which I think we can say from experience, from other projects and Pete can speak to this, that boundary control does work.

So any of those ‑‑ if their habitat issues are met, if they wanted to move forward with this, we would have to speak with all the adjoining landowners, go through the same process with that location.

COMMISSIONER BIVINS:  And, then, in light of that, is there an equilibrium of the two populations?  I mean, do you have ‑‑ obviously, the two species have coexisted before, you know, the ferret population diminished so  ‑‑  but once they’re introduced, does it achieve an equilibrium where, you know, the ferrets eradicate the prairie dogs and then what do we do with the ferrets?

MR. MELINCHUK:  If I could, I’d like to ask Pete Gober to respond to that.  He’s had experience on these other 19 sites.  As I say, we’re in the infant stages of this but I think Mr. Gober could answer that.

COMMISSIONER BIVINS:  Okay.

MR. GOBER:  I’m Pete Gober with the Fish and Wildlife Service.  We’ve had a fair amount of experience with this over the past 20 years and 20 sites and lots and lots of partners and so, one thing that Sean didn’t elaborate on is ferrets are not exactly diamonds anymore.  They may still be gold.  We’d like to get them recovered but we produce ‑‑ have produced over 7,000 of them in captivity and released close to 3,000 of them across the country.  So we can afford to be fairly flexible with this species, in terms of take, et cetera.

With regard to the issue of a balance, you’re going to have disbursing males as soon as you fill that habitat, like you would with any other species and they’ll likely go off in a non-habitat and be lost.  But, if there aren’t prairie dogs out there, they won’t stick.  And, typically, to get them to stick, you have to have concentrations of prairie dogs along the line of what Sean mentioned.  They won’t make it in these small, isolated colonies because, to be above aground is to be dead, if you’re a ferret.  A coyote or an owl or whatever will pick you off.  It’s a nocturnal, for the most part, and fossorial animals, which are going to be below ground most of the time, or dead.

COMMISSIONER BIVINS:  Well, where you have areas with an existing prairie dog population and you want to try to control those numbers, I see using ‑‑ if it’s possible to use the ferrets to maintain that objective, I think that’s great.

MR. GOBER:  You can dampen prairie dog populations but, of course, they wouldn’t be a successful predator, if they ate themselves completely out of house and home.

COMMISSIONER BIVINS:  And can you maintain an existing cattle operation within the area or do you foresee that?

MR. GOBER:  I think it’s absolutely essential that you maintain grazing, particularly in the midgrass country but even in the shortgrass country.  Grazing and these go together with these animals.  So you want volunteer participation, you want continued livestock grazing.  In fact, the harder you hit the country, the more likely you are to have prairie dogs, as you know, around windmills or whatever.

COMMISSIONER BIVINS:  Okay.  All right.  It’s an interesting concept.

MR. BOBER:  This is ‑‑ I guess my comment for this, since I have a chance to make it, is this is pretty low hanging fruit for a recovery of endangered species.  Every place we put ferrets out, we’ve had reproduction the first year.  If we give you folks the amount of flexibility you need to pull the plug on it, if it gets to be problematic for some reason or another, this is a success story.

There’s so many species we work with where the biological challenges are overwhelming, social issues are unbelievable but if you’ve got wildlife services keeping prairie dogs hemmed in ‑‑ which Mike has agreed to do – and we can find a way to give you the regulatory flexibility to where you don’t feel like you’re shooting yourself in the foot when you’re trying to do the right thing, this could be a pretty quick success.

COMMISSIONER BIVINS:  I just really want to recommend that we try to find ways with existing populations rather than introductions of prairie dogs, if at all possible.

MR. GOBER:  Right.

COMMISSIONER HOLT:  I think that may be a headline in the Amarillo newspaper ‑‑

COMMISSIONER BIVINS:  You’re not going to get too far with that.

COMMISSIONER HOLT:  It might be a possum.  How did you put it?  Social issues?

COMMISSIONER BIVINS:  Kind of like harvest-oriented, isn’t it?

COMMISSIONER HOLT:  Yes, like harvest-oriented.

MR. GOBER:  Yes, sir?

COMMISSIONER DUGGINS:  Is the area around Tahoka suitable?

MR. GOBER:  I’m not aware of any large prairie dog populations out in that area.

COMMISSIONER DUGGINS:  I am.

MR. GOBER:  Now, we would definitely be interested in talking to you about that or talking to the landowners about it.  We’re definitely open to any landowner who would be interested in this.

COMMISSIONER DUGGINS:  Let’s play ball.

MR. GOBER:  You know, the thing is ‑‑ the bad thing about ferrets is the same as the good thing about ferrets.  They went out because of that dependence on prairie dogs and secondary poisons and nasty poisons in years that we used past.  But it’s easy to put A and B back.  You don’t have an equation with ten variables.  You’ve just got A plus B equals success.  If you’ve got prairie dogs, you put ferrets out there and there’s a fair concentration of prairie dogs, they’ll do okay.

COMMISSIONER BIVINS:  Thank you very much.

MR. KYLE:  Thank you.

COMMISSIONER BIVINS:  Committee Item Number 4, Briefing on Competitive Renewable Energy Zones or CREZ Transmission Lines.   Kathy.  Kathy Boydston.

MS. BOYDSTON:  Hello, Commissioners, Mr. Chairman.  For the record, my name is Kathy Boydston.  I’m with the Wildlife Habitat Assessment Program in the Wildlife Division.  I’m here today to brief you on the PUC establishment of Competitive Renewable Energy Zones and Parks and Wildlife Role and the subsequent transmission line development.

The PUC establishes competitive renewable energy zones under the direction of the legislature and Parks and Wildlife’s role is established under our Code, 12.0011, which allows us to provide recommendations to entities that permit and develop projects and these recommendations will protect fish and wildlife resources.  That review of those projects include the electrical transmission lines and renewable energy projects.

In 2005, the Texas Senate established Senate Bill 20, which told the PUC ‑‑ recommended a Public Utility Commissioner, or the PUC, to look at establishing competitive renewable energy zones, which are productive wind zones in the Panhandle and other parts of the state where there’s current wind development and also where wind developers have expressed interest in new development.

In 2008, the Public Utility Commission looked at ‑‑ commissioned a study to look at what the transmission needs would be to get the energy from those wind zones to the metropolitan areas where it’s needed.  They looked at four different scenarios and of those four, they picked scenario 2, which will establish 2300 miles of new 345 kV transmission lines plus the state will put 18,000 megawatts of new energy into the electrical grid and will potentially impact 56,000 acres of fish and wildlife habitat.

After we realized the magnitude of Senate Bill 20, Parks and Wildlife went to the PUC under ‑‑ using our role under 12.0011 and offered our assistance to them in developing these lines with the least amount of environmental impact.  They amended their process to include our review role and we’ve been working very closely with their staff on reviewing and commenting on these lines since that time.

Their process includes a Certificate of Convenience and Necessity or CCN, which is the permit that’s required to build an electrical transmission line and there’s an environmental assessment that’s also developed to look at the potential impacts of all those lines.

Their process requires that the utility coordinate with us and apprise us in early coordination projects, sometime maybe a year in advance and provide us preliminary route information that we evaluate, at a very high level, looking at what federal or state managed lands could be impacted, as well as other fish and wildlife resources.

We provide that information to them and, hopefully, they use that information to design the ‑‑ develop the alternatives and the environmental assessment.  Now, the environmental assessment also has to include other information regarding design and costs of all the different alternatives, looks at historic features, number of habitable structures and community values that could be affected by each of the different alternatives.

Once that’s completed, they file that CCN and then environmental assessment with the Public Utility Commission and that starts the clock on 180 review time that the Public Utility Commission has to review and provide a final recommendation on each of these projects.

The Parks and Wildlife also receives that same application, the CCN and the environmental assessment and that starts the clock on a 60-day review time that we have to provide comments to Public Utility Commission.

Each of these projects has a staggered filing date and we’ve been receiving these since January of 2009 so we may receive one project a month or we might receive six projects in a week and at any point in time, staff may be looking at several different CREZ projects that are at different stages of our internal review process.

Scenario 2 called for 60-plus transmission line projects across the state to be looked at and completed ‑‑ review completed by ‑‑ between 2009 and 2011, with full build-out of all of these complete by 2013.  Now, 30 of those 60 projects were CREZ projects, which are our highest priority projects for doing this process.  We’ve reviewed ‑‑ completed review on about 45 of those and we still have approximately 12 or so that are either under review or have not been filed with us yet.

My next slide is going to concentrate on looking at one of those specific projects and we’ll be looking at the Riley to West Krum line.  Now, each of these lines ‑‑ these two projects, has hundreds of different segments that can result in thousands of different alternatives.  The Utility and their consultants develop these alternatives and bring those forward to Parks and Wildlife with a preferred route.

There may be between 30 and 300 different alternatives that we have to evaluate on each one of these projects.  We use ‑‑ look at scientific in-house information and use the information that’s provided in the environmental assessment, as well, to look at effects on state or federal managed lands, federal and state listed species, ecologically significant streams statements, rare species and aquatic resources.

We then analyze each one of these routes and provide a recommendation to the PUC on which route has the least amount of environmental impact.

Now, I’m going to highlight just a few of the projects that we’ve reviewed and commented on.  The first one is the Gray to Tesla line that’s in the northeastern part of the Panhandle.  The preferred route on this project would have bisected and fragmented the estimated occupied range of the lesser prairie chicken, which is a candidate species for listing under the Endangered Species Act.

Now, there’s not much information on what kind of impact these projects have on lesser prairie chicken, but there is some research that they have an aversion to tall vertical structures and the presence of these structures could cause the hen to abandon any kind of habitat where they would actually go to brood and rear their young.  Our recommendation would have reduced the fragmentation of the estimated occupied range for that bird.

On the Silverton to Tesla Line, that’s in the little bit southern part of the Panhandle and you hear more detailed information on this project in a later briefing item.  On this project, the preferred alternative could have ‑‑ will have a direct impact on Caprock Canyon State Park and on the Trailway.  But the third route crossed the trailway near the park, which presented a big visual impact to the park itself and also a direct impact to the trailway, which constitutes a problem or an issue of taking of state parkland under Chapter 26.

Here we go.  Our preferred route would have completely avoided impacts to the state park and also to the trailway.

COMMISSIONER HOLT:  Now, can I say ‑‑ when you say you give this recommendation, is this back to ‑‑

MS. BOYDSTON:  The PUC.

COMMISSIONER HOLT:  The PUC.  Okay.

MS. BOYDSTON:  Yes, sir.

COMMISSIONER HIXON:  Do they have to abide by your recommendation?

MS. BOYDSTON:  Oh, no.

COMMISSIONER HOLT:  No.

COMMISSIONER BIVINS:  And that’s ‑‑ I don’t want to interrupt your presentation but that is something that I think we need to do ‑‑ something I’ll discuss in that, it’s in a way of a fallacy of the whole process because when we make recommendations of, you know, the areas that we oversee and, in so many cases, they have no reference whatsoever in the decision-making process.  It’s frustrating.

COMMISSIONER HOLT:  It’s only an advisory role.

MR. SMITH:  Very frustrating.  Kathy and her team, you know, just to put this in perspective, you know, she got six biologists that work in the Wildlife Habitat Assessment Team.  They review between 1200 to 1500 development projects a year and provide feedback on what the impacts are likely to be to fish and wildlife resources from those development projects, something we’re required to do by statute.

Fully three of her FTEs are completely consumed with working on CREZ projects and have been, really for the last year and a half or so and that was likely to only continue in the future.

So, you know, while I think this has been an effective way for us in some ways to communicate our concerns to PUC and the utility companies, if then there are intervenors and it goes to the State Office of Administrative Hearing for negotiating a settlement route, it will come back to the PUC to consider, if we are not a formal intervenor, then, our issues are not represented in that negotiated process and so, at the State Office of Administrative Hearing, when they negotiate a settlement, typically then have a recommended order out of the judge, which then goes to the PUC for approval.

So we have chosen on two occasions now to serve as a formal intervenor.  One, on the Hill Country line that has generated so much contention here in Central Texas and then on another line up in the Panhandle that’s likely to have impacts on lesser prairie chickens, and that was really borne out of the frustrations we had on a decision-making process up there on another line that had impacts, we believe, to prairie chickens.

So we’re sorting through that and trying to do what we can, where appropriate, given limited resources.

COMMISSIONER BIVINS:  Sorry.

COMMISSIONER DUGGINS:  Well, are we ‑‑ I understand we have limited resources to intervene but can we call on the AG’s office to help us there where we need to be, perhaps, more aggressive in being an intervenor, in order to get the PUC’s attention?

MS. BRIGHT:  That’s a good question.  The AG’s office probably is facing the same resource issues, frankly, that we are.  There are agencies that do not have in-house counsel, for example, the Historical Commission and they rely on the Attorney General’s office to basically provide their general counsel services.

That is a possibility.  I’ve not really explored that.  They may want to charge us for that service.  I mean, I just don’t know.  I mean, we’ve just not really explored that.

COMMISSIONER DUGGINS:  I’d like to suggest we do that.

MS. BRIGHT:  Okay.

COMMISSIONER DUGGINS:  Because if they’re already becoming involved for another agency then you don’t have the duplication of ‑‑

MS. BRIGHT:  Although it does become tricky.  I will just ‑‑ I’m trying to figure out the best way to say this.  In the one that we did intervene on, and Todd George, the attorney who handled that is here.  I think we were probably incredibly effective and probably even more so than the folks that were being represented by the Attorney General’s office but that goes more to our mission.

The other issue is going to be just ‑‑ the Attorney General’s Office ‑‑ there’s a special statute that allows them to basically ‑‑ to deal with conflicts of interest.  You know how normally in a law firm, if somebody’s representing one party, or if you’ve previously represented somebody on another side of the lawsuit, you can’t also represent ‑‑ you can’t represent both sides of the same lawsuit.  I know.

COMMISSIONER HOLT:  In Fort Worth you can.

MS. BRIGHT:  It’s not a big problem at the Attorney General’s Office either.  There’s a special statute that allows them ‑‑ and they deal with that carefully.  I mean, I don’t want to suggest that they don’t.  They deal with that very carefully.  They set up walls and programs but the Division that would normally represent us in these things, also represents the Public Utility Commission.  So there’s just ‑‑ I mean, there’s just a lot of details that we would need to work out in order to do that.

Also, just as a practical matter, for most of these, we’re kind of past the time for intervention.  Intervention deadlines come pretty quickly.  This may sound crude but this is like litigation on meth because the litigation deadlines are unbelievable here.  We’ve got like ten days to respond to discovery, two days to respond to motions, because they want ‑‑ basically, it’s like having a lawsuit from beginning to end, including appeals, in 180 days.

COMMISSIONER DUGGINS:  Well, that’s why I suggested that we consider tapping that resource and we can always intervene and then withdraw the intervention.

MS. BRIGHT:  And we’ve approached that during this ‑‑ so far.  I’m not really sure how many more opportunities there are.  Do you know?

MS. BOYDSTON:  There’s a ‑‑ like we say, there’s about 12 that are in process.  A lot of those, we have already passed the opportunity to intervene on and, normally, we have been intervening on those where we think there’s a significant environmental issue that we need to be dealing with.

MS. BRIGHT:  But that’s definitely something that I can talk to the Attorney General’s Office, in terms of just help on, if we do think we need to intervene in additional cases whether they can provide some additional resources.

COMMISSIONER DUGGINS:  One other question that Chairman Holt made me think about is, in the Sunset bill, wasn’t there a provision that required another agency that didn’t accept the recommendation that came from us to give us a reason for that?  And is that applicable in this circumstance?

MS. BRIGHT:  It absolutely is and, in fact, I will say the PUC is taking that extremely seriously.  What the provision says is that they have to respond to our comments and they have to respond, I think it’s within like 90 days after the action and one of the things that they’re doing in a lot of their orders is, they’re responding to our comments.

You know, as with any comments, you may or may not agree with their response but they’re doing that.  It doesn’t require that they accept our comments just that they respond to them.

MS. BOYDSTON:  They’ve been responding to those in their final order, which is a final decision on the project and so they basically go through our letter, comment by comment and break down whether they’re going to accept that and ask the utility to do it, or they’re not.  So they’ve been very responsive, as Ann says.

MR. SMITH:  Commissioner, by the Sunset legislation, agencies have 90 days from the time in which they take action on a matter in which we commented, to provide a response back to us.

COMMISSIONER DUGGINS:  I just wanted to see if they were doing it and if it was a substantive response or just lip service.

MS. BRIGHT:  I don’t think so.  I mean, I think they’ve given us pretty substantive responses.  Again, you know, we may not always see eye to eye but from the very beginning, PUC staff has taken this provision of Sunset very seriously, probably ‑‑ maybe even more seriously than some other agencies.

MS. BOYDSTON:  And they’ve started taking some of the recommendations ‑‑ our standard recommendations and going ahead and incorporating those, such as, you know, line marking the transmission lines to prevent bird mortality.  You know, things like that.  Some of our standard recommendations, they go ahead and take, almost automatically.

COMMISSIONER DUGGINS:  Is one of our standard recommendations to recommend that they place the line near existing lines and existing roadways?

MS. BOYDSTON:  Yes, sir, pretty much for the most part.  You know, that is what we recommend, with the exceptions of a few species and different habitat types, the lesser prairie chicken would be one of those where that would be the – rules to prove the exception or exception to the rule.  But, yes, we usually require or ask that they locate them next to existing right of ways, whether they’re highway right of ways or transmission line right of ways or road right of ways because that usually is where the most disturbances have already occurred and the habitat is already impacted and fragmented.

COMMISSIONER MORIAN:  I’ve got one quick question.  I’m unclear on the Gray to Tesla line.

MS. BOYDSTON:  Uh-huh.

COMMISSIONER MORIAN:  Are there any preferred routes ‑‑and I have recommended it.  Did you say they approved the preferred route?

MS. BOYDSTON:  That’s still under discussion.

COMMISSIONER MORIAN:  It’s still open?

MS. BOYDSTON:  Yes.  You’re going to hear about that later on in a briefing item with Ted Hollingsworth.  They’ve requested an easement to go across the trailway.

MR. SMITH:  I think ‑‑ did you say Gray to Tesla?

MS. BOYDSTON:  Are you talking about Silverton to Tesla.  Oh. I’m sorry.

COMMISSIONER MORIAN:  Gray to Tesla.

MS. BOYDSTON:  Yes, Gray to Tesla.  That’s already been made.  That decision’s already been made.

COMMISSIONER MORIAN:  All right.  Okay.  Thank you.

MR. SMITH:  And our recommended line was not accepted.

COMMISSIONER MORIAN:  They took the preferred route.

MS. BOYDSTON:  Well, actually, they took a different route.  They called it Modified Route 314, which is ‑‑ I’ll go back to this.  Sorry, it’s several clicks.  It’s that top line.  See where that blue line comes into the red line?  That very topmost green line ‑‑ that’s the Modified Route 314 and that’s what they ended up choosing.

COMMISSIONER HOLT:  Right through the lesser prairie chicken Habitat.

MS. BOYDSTON:  Yes, sir.

MR. SMITH:  Just ‑‑ probably important for this Commission to know that when we heard or got word of the preferred final order that was issued by the judge from the State Office of Administrative Hearings that went back to the PUC Commission, we did send in a letter to the PUC registering our concerns about that decision.  Again, just so you know, that letter created some contention there and Kathy and our attorney Todd George were there to represent the agency at the hearing and was ultimately the position of the PUC that that letter could not be considered evidentiary and so, while there was some discussion of it, it ultimately was not considered when they made their final decision.

So that created some issues between the agencies.  I think some of the lemonade that came out of that is that the PUC staff then came back with really a recommendation from their Commission, if there was an issue like the lesser prairie chicken that we felt very strongly about, from a resource perspective, then it was very important for us to consider intervening so that we could then be part of those formal settlement discussion.

Yes, yes.  So that in turn has led to us to, for example, take that position on another line coming up in the Panhandle so ‑‑ I wanted you to be aware of that because it ‑‑

COMMISSIONER BIVINS:  If there’s no retroactive ability, once the judge has made the decision on the route ‑‑

MR. SMITH:  Once has a judge has made a recommendation on that and submitted a recommended final order, my understanding of that process then, that recommendation, which includes a settlement agreement of all the intervenors and the agency then goes to the PUC Commission, then the Commission has the ultimate approval.  Did I ‑‑ Ann, did I ‑‑

MS. BRIGHT:  That’s correct.

COMMISSIONER FRIEDKIN:  Your question was about appeal, wasn’t it?

MS. BRIGHT:  How the administrative process works is that the hearing officer ‑‑ the Administrative Law Judge is just really kind of a fact finder.  They will make findings of law and conclusions of fact and they’ll draft a proposed decision and then that ‑‑ sometimes it’s agreed to and sometimes it is the result of a contested case hearing, which is like a trial.

That goes to the actual Public Utility Commission ‑‑ the three member Commission.  Both or all parties get the opportunity to comment on that and respond to other folks’ comments on that proposed order and then the Commission ultimately makes a decision.

The thing with the Gray to Tesla was that that was a settlement agreement and I think most people who’ve been involved in litigation know that most of the time a judge ‑‑ an ALJ is going to accept a settlement agreement.  They’re really not going to look too much behind it and that’s pretty much what happened so by the time it got to the Commission, there really wasn’t any party that was going to contest it or raise issues about it.  So it went to the Commission; they pretty much entered an order based on that.

COMMISSIONER DUGGINS:  But it’s also, sometimes very arbitrary.  We had one of these in Johnson County, where everybody agreed to it, staff agreed to it and the PUC just rejected it and sent it a different way.  You can, to answer Mark’s question, you can then take it to the court.

COMMISSIONER HOLT:  You can go to court.

COMMISSIONER DUGGINS:  Absolutely.

COMMISSIONER HOLT:  Yes.  And that’s what’s going to happen.

COMMISSIONER DUGGINS:  You go to the court in Travis County on it.

MS. BRIGHT:  And we may very well see some appeals out of these.

COMMISSIONER DUGGINS:  I don’t understand why you would reject a recommendation from this agency.  You say, We’re not going to consider it.  Can you imagine us getting a letter from someone and say, We’re not going to consider it.

COMMISSIONER HOLT:  No, because I don’t know all the background.

MS. BRIGHT:  I think it’s like our involvement in lots of things at other agencies.  You know, we have a very specific focus.  Our recommendation concerns wildlife.  When they make decisions on these lines, they have a number of things that they are required to consider:  inhabitable structures, economic impacts ‑‑ and actually, I can’t list all of those but we’re a piece of that, we’re not the whole thing.  And, you know, that’s, you know, and we’ve talked about things that ‑‑ if we want a higher profile, I mean, there may be some other things that we can talk about looking into.

COMMISSIONER DUGGINS:  I’m just suggesting it should have been considered, whether they agreed with it or disagreed with it.  It’s a different story but to just say, We’re not going to consider it and throw it in the waste can, it seems arbitrary to me.

MS. BRIGHT:  And staff has been very helpful to us in ‑‑ after that hearing when the Commission basically questioned the admissibility or the evidentiary value of our letter, people from the company Across Texas actually approached us about things that they might be able to do to help so we’re not being completely ignored, I guess you could say.

COMMISSIONER HOLT:  The whole thing is moving quickly and it’s also a learning process for everybody.

MS. BRIGHT:  Absolutely.

COMMISSIONER HOLT:  There’s a lot more of it.

MS. BOYDSTON:  That’s true and there are going to be other lines ‑‑

COMMISSIONER HOLT:  Oh, yes.

MS. BOYDSTON:  ‑‑ coming through from Southwest Power Pool.  They’re also within this CREZ process and then there are going to be other transmission lines that are coming, associated with other projects.  We are now looking some transmission lines that are going to be associated with a nuclear power plant expansion that will be coming ‑‑ that could potentially impact a couple of our state parks.  So we’re, by far, not through with this.

COMMISSIONER HOLT:  You’re going to be busy and stay busy.

MS. BOYDSTON:  Job security.

COMMISSIONER HOLT:  Job security.

MS. BOYDSTON:  Yes, sir.

COMMISSIONER HOLT:  But a lot of this is going to end up in the courts.  There’s no doubt about the whole thing’s going to come through the Hill Country, I guess probably these others too.  All the landowners have already said, We’re going to sue and, you know, counties have said they’re going to sue so, I mean, this is going to be a  ‑‑ this is going to go on for awhile.

MS. BOYDSTON:  On the Killeen line that’s in the northeastern part of the Edwards Plateau, on the preferred route on this project that was going to impact the Lampasas River Valley and also impact potential habitat for two federally listed species ‑‑ the golden-cheeked warbler and a black-capped vireo ‑‑ it was also going to follow the Lampasas River for several miles.

We recommended the route that follows an existing transmission line between the Parrie Haynes Ranch and Fort Hood, that reduced the overall  courts of the project greatly.

COMMISSIONER DUGGINS:  Let me just stop you.  Did we intervene here?

MS. BOYDSTON:  No.  No.

COMMISSIONER HOLT:  Have they made a decision?

MS. BOYDSTON:  Yes, they did and they picked our route, the route that we recommended and then some other issues ‑‑ additional issues that we weren’t aware of came to light, that had to do with a new airport being constructed ‑‑ a landing strip being constructed on Fort Hood that had a 5,000 foot, I believe, or 8,000 foot ‑‑

COMMISSIONER HOLT:  I remember reading about this.

MS. BOYDSTON:  8,000-foot melting pack zone that would actually bring us down ‑‑ bring the line down onto Parrie Haynes.  See where that mixed ‑‑ that little ‑‑ the second yellow part of Parrie Haynes ‑‑

COMMISSIONER HOLT:  Uh-huh.

MS. BOYDSTON:  The impact zone would become ‑‑ come down into that part of Parrie Haynes right now and so we’re still in negotiation under that, as far as I know.  Fort Hood and other people are looking at different ways to ‑‑ with working with Encore, which is the Utility on that issue ‑‑ on that project, to try and see if we can get them to do something like bury the transmission line for about, you know, about 1,000 feet between the ‑‑ along that easement, which would be the best solution for both parties.

But, that’s very expensive.

COMMISSIONER HOLT:  Very expensive.

MS. BOYDSTON:  And, there’s maintenance issues.

COMMISSIONER HOLT:  And maintenance.

MS. BOYDSTON:  So this is the big one, McCamey D to Kendall to Gillespie.  This is the one we have intervened on in the heart of the Hill Country.  Unfortunately, all of the routes on this line are going to have an irretrievable and irreversible impact on habitat across the Hill Country.

One of the routes proposed comes within 500 feet of Old Tunnel Wildlife Management Area, which is owned and managed by Parks and Wildlife and is home to over 3 million Brazilian free-tailed bats, as well as 1,000 Cave Myotis.  It also is going to impact several acres of golden-cheeked warbler and black-capped vireo habitat and fragment some of the last remaining large blocks of habitat in the Hill Country and basically, to the magnitude that probably hasn’t been seen since the construction of I-10.

We are the only agency conducting environmental reviews on this and the Public Utility Commission does not have any environmental review staff on board.  These lines are going to present basic, unprecedented impact to fish and wildlife resources, potentially, across the state and it’s going to fragment the Hill Country, down to a pretty large extent.  We’re working closely in our program and through the agency to try and make sure that the environmental cost of these transmission lines, you know, don’t outweigh the benefits of the renewable energy and so, that concludes my presentation and if you have any further questions, I’ll try to answer them.

COMMISSIONER BIVINS:  Any other comments for Kathy?

COMMISSIONER HOLT:  This is one thing to talk about and we’re going to be talking about it for a long, long time.  It’s going to be ongoing.

MR. SMITH:  Commissioners, we just wanted you all to understand the significance of this to the agency.  As you might expect, you know, there are a lot of impacts here ‑‑ projected impacts, the issues about the siting and oftentimes pitting landowner against landowner.  You know, certainly our wildlife conservation model is dependent upon working collaboratively with private landowners.

There’s a lot of interest in this and the department’s role.  Kathy and her team, I think, have really done an extraordinary job of trying to stay true to the science, which is certainly the direction that you all have given us and done everything they can to provide that input.  Ann and her team, from a legal perspective, have been very involved.

You should also know that Comptroller Combs has played a real leadership role here with her Endangered Species and Economic Development Task Force and looking at, you know, the impacts of this and how you balance the competing uses and so, she’s taken a real strong personal interest in this, as well.

But this is a major policy issue and resource issue for the agency and we just want to make sure you all have an understanding of kind of our role in that and what’s involved and kind of what’s at stake.

COMMISSIONER HIXON:  Just one ‑‑ and I never did get an answer but your last point is that you need to make sure that the damage done does not outweigh the benefit of this renewable energy but, you know, I ask, who makes that decision?  How do you publicize that?  How do you make the people aware of that balancing act.

MR. SMITH:  I think that’s a great question, Commissioner, and I think it highlights some of the real tension between environmental and conservation groups that are involved.  You know, so many of the environmental and conversation groups have really pushed very strongly for the development of renewable energy.  And, you know, what we are trying to point out is that there are other costs associated with that, in terms of fragmentation and habitat displacement and habitat disturbance and so forth and potential impacts to species of concern that this agency is charged with protecting and we have been a bit of a lonely voice, in terms of raising those issues and trying to make sure that those are considered as well, you know, with the state’s really strong economic development push for renewable so we’ve just, I think, again tried to stay true to the science and I think that’s been valued by many people in the process.

MS. BOYDSTON:  And I think, if I might add, we learned a lot during this intervention process.  As Ann pointed out, we were effective in ways that we weren’t certain that we were being by ‑‑ in the fact that our mere presence at these hearings and this [inaudible] proceeding actually had a big impact.

Our comments and our letter and our direct testimony were brought up by almost everybody that was intervening in the process, did you realize Parks and Wildlife made this recommendation?  And also, the fact that there were a lot of landowners there, represented by their attorneys and they all came ‑‑ a lot of them came up and expressed their appreciation to us and the fact that we were involved in this process and were representing the resources.

MR. SMITH:  I think it’s important to note too that also, industry will reach out to Kathy and her team to get recommendations about what they can do to offset impacts and so, you know, we’ve had a number of industry partners that have been very proactive about reaching out and asking what they can do proactively and preemptively.  We strongly encourage that.  That’s a really important dialogue that we absolutely want and need to keep open and constructive so that they feel comfortable coming to the agency and that they can get good science-based recommendations on that, as well.

So I just want to make sure that you understand that we consider that to be a core outreach effort as well, for industry that’s involved in that, as well.

COMMISSIONER BIVINS:  Thank you very much, Kathy.

MS. BOYDSTON:  You’re welcome.

COMMISSIONER HOLT:  Thank you, Kathy.

COMMISSIONER BIVINS:  In light of our time, I’m going to rearrange our agenda slightly.  Items 5, 6, 7, 8 and 11, which were scheduled to be heard prior to Executive Session now will be heard following Executive Session and, in light of that, the following items will be heard in Executive Session:  Committee Item Number 2 — Val Verde County Land Project — Devils River State Natural Area Property Exchange ‑‑ excuse me ‑‑ Committee Item Number 9 — New Park Search briefing for Palo Pinto County and Committee Item Number 10 — Personnel Matters, Performance Evaluation of TPWD Executive Director.  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 and deliberation regarding personnel, Section 551.074 of the Open Meetings Act.

We will now recess for Executive Session.  Thank you.

(Whereupon, the meeting was adjourned at 12:50 p.m.)

COMMISSIONER BIVINS:  Thank you all.  At this time, we will reconvene the regular session of the Conservation Committee.  As you will recall, we moved several agenda items to this afternoon, the first being Item Number 5, which has been removed from the agenda.  We now go to Committee Item Number 6 — Acceptance of Land Donation — Kendall and Bandera Counties — 3700 Acres at the 3K Ranch.  Mr. Corky Kuhlmann.

MR. KUHLMANN:  Good afternoon.  For the record, Corky Kuhlmann with the Land Conservation Program.  This is a land donation in Kendall and Bandera county.  You can see the area it’s in; it’s kind of in the middle of the Hill Country, Guadalupe River and Government Canyon.  It is a land donation from the Albert and Bessie Kronkosky, 3700 acres.  It is about five to six miles west of Boerne, on Highway 46.  The infrastructure is all located along 46.  It has one main house, which has not been occupied in a while, large garage and outbuildings.  There’s a ranch manager’s residence that goes with it that is currently lived in by a caretaker, paid for by the Trust.

It is high-fenced.  The fence is all in good shape.  We’ve been over a lot of it.  There are some mortar gaps out but other than that, the fence is all in pretty good shape, surrounding the entire property.

There’s a lot of live water on it.  About a mile and a half of Pipe Creek, a couple of stock tanks and some seasonal creeks.

The views are magnificent on the whole property.  My camera really doesn’t do them justice but here’s just a few of the views along the hill tops.  The summary for the property, like I said, two and half miles of State Highway 46 frontage, the housing complex and infrastructure’s in good shape, a large amount of Pipe Creek, good fence, a good road network ‑‑ most of the roads are in need of repair.  We’ve had biologists on it, from the Wildlife Division.  They’ve already identified over 150 different plant species, most of them native plants.

At least ‑‑ we figure right now, about half the side is potential golden-cheeked warbler habitat.  We’d like permission to begin the public notice and input process.  One of the things the slide does not show, we do expect to come back to you with a decision on this donation in January.  We have to report back to the Trust by March 1st of next year.  I’d be glad to answer any questions.

COMMISSIONER BIVINS:  Any questions or comments for Corky?

COMMISSIONER DUGGINS:  I have a comment.  When you report, you are going to report on the details of the restrictions in the Will or the Trust agreement.

MR. KUHLMANN:  We will hopefully find out ‑‑ well, we will come back to you with a couple of things.  Hopefully, by the January meeting, we will have a good idea whether we will recommend that it be a wildlife management area or maybe a state natural area ‑‑ which direction we’re going to go.  Any deed restrictions that may be associated with the property, we’ll do as much research as we can between now and then.  Yes, sir.  Find out about mineral rights, hopefully.

COMMISSIONER DUGGINS:  I was just talking about the restrictions the donor placed on it, on the gift.

MR. KUHLMANN:  Yes, sir.  Yes, sir.

COMMISSIONER BIVINS:  Any other comments for Corky on this item?

COMMISSIONER HOLT:  It looks like it could be an exciting piece of property, especially where it’s located.

MR. KUHLMANN:  It’s a very nice piece of property.  Good access.  Along 46, there’s probably four or five entrances in the place, other than the main entrance into the residential compound.

COMMISSIONER HOLT:  Are you talking about 45 minutes from San Antonio and, you know ‑‑

MR. KUHLMANN:  If that much.

COMMISSIONER HOLT:  If that much, yes.

MR. KUHLMANN:  I mean, if you get on Interstate 10 and it’s just ‑‑ it’s five ‑‑ it’s six miles to the corner of the property from Interstate 10 on 46.

COMMISSIONER BIVINS:  If there are no additional comments, I’ll authorize staff to begin the public notice and input process.  I failed to announce that in Executive Session, Committee Item Number 10, Personnel Matters — Performance Evaluation of TPWD Executive Director was tabled for later discussion.

COMMISSIONER HOLT:  Uh-oh.

MR. SMITH:  That’s not a good sign at all.

COMMISSIONER HOLT:  We’re going to let him worry for awhile.

COMMISSIONER BIVINS:  Moving along, Committee Item Number 7, Request for Easement — Brazoria County — Power Line Easement at the Justin Hurst Wildlife Management Area.  Mr. Ted Hollingsworth.

MR. HOLLINGSWORTH:  Chairman, Commissioners.  Good evening, my name is Ted Hollingsworth.  I’m with the Land Conservation Program.

COMMISSIONER HOLT:  Are you rubbing that in?

MR. HOLLINGSWORTH:  In case I start dosing off, you’ll know.  This particular item pertains to a request for an easement at the Justin Hurst Wildlife Management Area.  Justin Hurst Wildlife Management Area is right down on the coast in Brazoria County.  It’s due south of downtown Houston, about 55 miles.  It’s about 10,000 acres, largely coastal prairie and coastal marshes, with some riparian areas and some small savannah or wooded areas.

The easement request is to get power to a cathodic protection station.  Cathodic protection is a process by which pipelines are charged negatively, if I’m not mistaken.  The cathode is placed in the ground.  And what this does is, it dramatically reduces the rate of oxidation or corrosion of the metals in the pipeline.

Currently, there are several pipelines ‑‑ three or four pipelines in this quota belonging to Dow Chemical Company.  They have cathodic protection on them up to the boundary of the wildlife management area.  Dow has been able to determine that they can’t charge the pipelines enough in these soils to provide adequate protection across the wildlife management area and so they’ve requested this easement, which would involve a 10-foot corridor for about 1100, 1200 foot of overhead power line, running along the existing road in the WMA.

It would serve as a fenced-in site, where there would be a transformer station, which would charge the cathode.  The cathode would go into a hole drilled in the ground with a net 50-foot X 50-foot cathode protection site.

Again, the intent is to extend the life of the pipeline and, quite frankly, to reduce the chances of their being a pipeline failure.  Because ‑‑ for those reasons, the staff at the WMA does really believe that it’s in the best interest of the Justin Hurst Wildlife Management Area to grant this easement under the normal terms and conditions to provide that additional protection to those pipelines that cross the WMA.  This is a two-meeting process because it is a request for an easement and we’re here to request permission to begin the public notice and input process.  I’d be happy to answer any questions.

COMMISSIONER BIVINS:  Any questions for Ted?  Commissioner Duggins.

COMMISSIONER DUGGINS:  Ted, is there any chance that we can get the power lines buried?

MR. HOLLINGSWORTH:  I don’t know that staff has asked that question.  We can certainly go back and ask that question.  It’s, as you know, much more expensive to bury that line.

COMMISSIONER DUGGINS:  But it’s not in this area.  The rock shouldn’t be all that ‑‑

MR. HOLLINGSWORTH:  It’s dense gumbo clay.

COMMISSIONER DUGGINS:  Yes.  I think you should, at least, explore that, as you say, it’s an important migratory waterfowl site.

MR. HOLLINGSWORTH:  Yes, sir.  I don’t know if Dennis Gissell is in the room but I would be surprised if he hasn’t explored that but we’ll be absolutely sure that’s explored and staff is convinced that that is not a reasonable and prudent alternative before we come back.

COMMISSIONER BIVINS:  Thank you, Ted.  Any other questions or discussion on this issue?  If there are none, I’ll authorize staff to begin the public notice and input process.  Committee Number 8 — Request for Easement — Briscoe County — Transmission Line Crossing Caprock Canyon Trailway.  Once again, Ted.

MR. HOLLINGSWORTH:  Commissioner, Chairman, Commissioners.  My name is Ted Hollingsworth.  I’m with the Land Conservation Program.  This item pertains to another request for an easement.  This easement in Briscoe County, for a CREZ line, in fact, a 345 kilovolt transmission line to cross the Caprock Canyon Trailway.  The trailway actually spans three counties but the specific location being requested is in Briscoe County, in the southern portion of the trail.

I know this is a fairly complicated picture but, as you heard from Kathy this morning, many, many, many, many, many routes were evaluated for each reach.  This is the Silverton to Tesla reach, which she touched on in her presentation.

This is just a few of the routes that were evaluated and I apologize for the graphics but that squiggly thin green line is the trailway.  You might recall from Kathy’s presentation, that the route we recommended ‑‑ that the agency recommended is that purple route, pretty much the southernmost route, in part because it would bypass the trailway.

Two specific routes have been proposed before the PUC.  The first and second settlement routes.  After the first route was published, the staff of this agency expressed a great deal of concern about its closeness to the railroad tunnel, which is full of Mexican free-tailed bats, and about the terrain, which is pretty rugged in this location and is much of the aesthetic appeal of the trailway.

The second settlement route addresses those concerns.  It’s about five miles farther.  It puts it about seven miles from the bat tunnel.  It also places it in basically rolling agricultural land, away from the more aesthetically interesting portions of the trailway.

Again, it is part of the CREZ initiative.  I do want to point out that this Commission has complete jurisdiction over whether or not to issue this easement.  If the easement is not issued, the issue will have to go back.  The PUC will have to, in effect, remand the process to be started over again, to evaluate routes that would bypass the trailway, including the route that was recommended by Texas Parks and Wildlife in the first place.

Staff would like to point out the fact that we don’t believe the hurdle for feasible and prudent alternatives has been adequately met in this proposal.  Staff is concerned about the issuance of an easement that we’re not required to ‑‑ we’re not required to issue and the precedent that would set, the expectation that that would set that people can cross our properties, not just trailways but state parks and other wildlife management areas.

Staff is already aware of another utility company that probably is going to come in for ‑‑ with requests to put in parallel utility corridors.  The concern is that this would open the door for more high lines crossing the trailway and, obviously, even if it’s an otherwise boring stretch of trailway, a high line crossing that is a considerable visual impact for our hikers and bikers on the trailway.

In the event the Commission should decide to have staff grant that easement, we feel like there are mitigatory measures that can be taken on that entire 80‑mile reach of this CREZ line that would reduce its impact to all fish and wildlife resources, not just at the trailway.

This is the first of a two-meeting process but we are looking for input from the Commission and, if you so charge, we would proceed to request public input.  I’d be happy to answer any questions.

COMMISSIONER BIVINS:  So I understand that this hasn’t been selected ‑‑ this route has yet to be selected but in order for them to get the selection, we have to grant the easement.  Is that correct?

MR. HOLLINGSWORTH:  This is the route that the PUC has identified in their  ‑‑ Kathy, what’s it called?

MS. BOYDSTON:  Settlement.

MR. HOLLINGSWORTH:  In their settlement ‑‑

MS. BOYDSTON:  Settlement route.

MR. HOLLINGSWORTH:  This is the settlement route.  This is the route that the PUC has tentatively said would be okay if barriers such as crossing the trailway could be overcome.

COMMISSIONER DUGGINS:  When you say "this," though, which of the routes are you referring to by "this"?

MR. HOLLINGSWORTH:  That’s the second settlement route.

COMMISSIONER DUGGINS:  That’s totally unacceptable, you said.

MR. HOLLINGSWORTH:  Staff believes this sets a precedent that may cause us problems in the long term.  Yes sir.  And, regardless of the fact that this is otherwise not the most interesting portion of the trail, it still is a significant visual and aesthetic impact to the trailway.

I would also point out, although this is not a public meeting day, that we do have a representative from the applicant in the audience today, in case you’d like to direct any questions to him.

COMMISSIONER BIVINS:  I have some serious concerns over the proximity to the bats and having ‑‑ I’ve ridden this trail and it’s quite scenic and the flat stretches are, you know, scenic to the eye of the beholder, I suppose but I think that this would be a serious error to try to place one of the towers ‑‑ which is not a normal transmission tower ‑‑ this is a very large structure, and I think it would have severe impact, not only on the trail but on the state park itself.  I would be hard-pressed to want to do this.  Is there any other discussion?  If there is none, I’ll authorize staff to begin the public notice and input process.

 Item Number 9.  No action is needed at this time and we move to Item Number 11 — Committee ‑‑ let’s see, Land Exchange — Blanco County — 300 Acres for the Pedernales Falls State Park Conservation Project — Resolution.  Once again, Ted.

COMMISSIONER HOLT:  You dressed nicely today.

MR. HOLLINGSWORTH:  I can fix that.  Chairman, Commissioners, Good afternoon.  My name is Ted Hollingsworth.  I’m with the Land Conservation Program.  This is the second reading of this item which you heard at the last Commission meeting.

And just to briefly go over the history of this ‑‑  Pedernales Falls in northern Blanco County, about 30 miles west of downtown Austin.  The park is severed by a county road and it’s getting to be a busier and busier county road and for that reason there’s a 320-acre tract south of the road that, in the current public use plan, there’s no public use recommended.

The fear of staff and the fear of management has historically been that somebody would get struck by a vehicle crossing the road, quite frankly.  And because there is no proposed public use for that tract, in 2004, the General Land Office identified the tract as underutilized, submitted that in writing in their annual appraisal, submitted that to the Governor’s office for their concurrence, they did concur.  The tract was placed on the market for sale.  It is occupied by golden-cheeked warblers and so we worked with the staff at the General Land Office and came to an agreement that if a conservation bank, approved by the U.S. Fish and Wildlife Service to be created on this 320-acre tract, that would constitute a highest and best use and the General Land Office would take no further ‑‑ make no further effort to have the tract disposed of.

We got ‑‑ actually got about four years into the process of creating a bank when it ‑‑ when we determined that a bank would probably be better held and managed by someone in the private sector, that avoids the appearance that we’re in the credit brokering business, which we really don’t want to be in.

So we put out a request for proposals, we received two proposals.  The proposal that scored highest was from Pedernales Blue Hole Limited.  They own a 235-acre tract overlooking Pedernales Falls.  Their proposal is to attempt to create a conservation bank on the 320-acre tract we own and, assuming they’re successful, exchange that tract ‑‑ the ownership ‑‑ for a viewshed or conservation easement on the 235-acre tract.  The tract comes down to the falls.  This is the view ‑‑ this shot is taken from the observation deck in the state park.  This is the tract in question.

The tract immediately upstream has a fairly high bluff piece of property and although someone could certainly build a home on the bluff overlooking the falls, that low bluff overlooking the falls was considered by staff to be the greatest risk to the visual and aesthetic experience of being at the falls.

This map shows that easement tract north of the park.  It would be contiguous with the bare part of the mile of boundary that we now own and it also shows the 320-acre tract, severed by the county road at the south end of the park.

If you authorize the Executive Director to proceed on this path, just be aware that it’s a couple of year process to get the conservation bank consummated by U.S. Fish and Wildlife Service.  We got a letter just this last week from Fish and Wildlife Service, concurring in principle with this process and agreeing that the tract is eligible in private ownership, for the creation of a conservation bank.

The advantages are that if we don’t do this, GLO has every legal authority to take this piece of property and sell it, without any restrictions on it.  If we do this, the 320-acre tract remains in conservation and the 235-acre tract enters into conservation and that’s really the net benefit of the proposal.

With that, the staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:  The Texas Parks and Wildlife Commission adopts, by resolution in Exhibit A, the provisions of this land exchange in Blanco County.  I’d be happy to take any questions.

COMMISSIONER BIVINS:  Commissioner Duggins.

COMMISSIONER DUGGINS:  Does the Conservation easement on the exchanged tract include any restrictions on ground water extraction?

MR. HOLLINGSWORTH:  Those terms have not been worked out yet and, to be very candid, the owner of that tract has retained a consultant at a fairly considerable expense and wanted the Commission to authorize this transaction before spending a whole lot of money hammering out the details of the two ‑‑ of the agreement ‑‑ of the exchange agreement of the conservation easement.  Essentially, what this staff would do is authorize the Executive Director to continue with this process and not proceed until the Executive Director has determined that all the terms and conditions were in the best interest of Parks and Wildlife.

So those details have not been worked out at this point, to answer your question.  My assumption is that it would be based on our conservation easement template, which always restricts ground water withdrawal to permitted domestic use only.

COMMISSIONER BIVINS:  Any other comments or questions for Ted?  If there are none, I’ll place this item on the Thursday Commission agenda for public comment and action.

We now will go to agenda ‑‑ Committee Item Number 2 — Val Verde County Land Project — Devils River State Natural Area Property Exchange.  Scott Boruff.

MR. BORUFF:  Mr. Chairman and Commissioners.  For the record, my name is Scott Boruff, Deputy Executive Director of Operations.  I’m here today to brief you on the Devils River project in Val Verde County.  As a reminder, I have briefed this Commission on three previous occasions, about this project as we’ve moved along.

And, for the benefit of the public, who has come here today to listen to this, first of all, our apologies for taking so long today.  Second of all, because of the time constraints here, you ‑‑ the Commission ‑‑ have asked me to keep this somewhat briefer than I normally would do and to that end, I’m going to abbreviate the number of slides you will see and they will not correspond with the slides that are on your computer because we made a last minute change.

I’m only going to use three slides here, as opposed to fifty-four but I will make a genuine effort to share with you what we have come to find out from our exercise, in terms of listening to the public.  Also, I very much want to thank you for your considered response to allowing us to have more time to let the public have comments.  That was one of the things we had heard from the public that they didn’t feel like there had been an opportunity for them to fully digest the tenets of the project and have a thoughtful amount of time to come back to us with their feedback.

So we appreciate that.  We’ve got a lot of feedback, just in the last day or so, that the public appreciates that too and I just wanted the Commission to know that. And number two, before I get started, I really would be remiss in this project, if I didn’t thank the staff.  There’s been a tremendous amount of time put into this analysis over the last six months to a year ‑‑ folks like Ted Hollingsworth, who’s been up here in front of you but a lot of folks that you don’t see very often.  Brent Leisure, our new State Parks Director has been very involved with this, as has his on-the-ground staff, Mike Hill and Joe Ranzau, our at the State Natural area.

Our Project Management office, led by Jeannie Munoz and Larry Sieck have been extremely involved in this.  Lydia Saldana’s shop has been very involved in trying to help communicate to the public what we’re trying to do.  Colonel Flores has been involved in this project, in terms of trying to help us identify new ways to get law enforcement on the ground and in the water out there because that is one of the major issues that we found as we went out and started looking at this project.  So before I start on the presentation, I do want to thank those folks, personally and professionally for doing what they’ve done.

As I said, we’re going to keep this relatively short.  This first slide ‑‑ the one of the three you’re going to have the benefit of today, is just a shot that kind of gives you a flavor for the real natural beauty that this river represents to the state of Texas.   It is, indeed, probably the most pristine river that’s left in the state of Texas.  And, you know, we’d also be remiss if we didn’t point out that it’s not just the river out there, this is an incredible wilderness part of the state of Texas that is ‑‑ I have come to clearly appreciate the fact that a lot of people love this area and whether they agree or disagree on the tenets of this proposal, we have gotten a clear consensus that taking of the Devils River and its surrounds is a major point of interest for everybody that has given us feedback.

What I propose to do for the rest of the briefing is just reference the maps and I’ll do the rest of this verbally.  As you know, we have been looking at this project in its genesis over a year ago.  We were made aware of the fact that the Devils River Ranch, which you see in the yellow outline on this map, was available for sale.  It is an 18,000-acre piece of property which is contiguous to the Amistad National Recreation Area.  As you can see, it represents or is situated along the far southern end of the Devils River, which runs some 40 miles through Val Verde County.

I’m going to use this pointer, if you’ll allow me to kind of point to this map.  As we have gone out and ‑‑ so the proposal that’s on the table, as you will recall, is, when we first started looking at and trying to analyze whether this fit our mission or not and we came to believe that that was the case, that we then began to look at how we could manage the financial issues of purchasing this property.

The subject property, the Devils River Ranch, in yellow, has appraised at about $16 million.  The Devils River State Natural Area, which is about 2,000 acres less, about 18,000 acres, is appraised at $8 million and so we became faced with an $8 million delta.  At that point, we went to the landowner that owned the Devils River Ranch.  It took us quite some time, several months of discussions and negotiations with the landowner before he concurred to contemplate a swap and so the proposal that has been on the table has been to trade the state natural area and $8,000,000 in difference for the Devils River Ranch.

You may recall that there are significant access issues to the state natural area.  The road is very difficult and is crossed by Bone Creek some 30 times.  Once you’re in the state natural area, the access and the ability to distribute visitors around the site is extremely limited.

The Devils River Ranch, conversely, is much easier to get to.  The access to the ranch is much more direct and the roads inside the ranch allow us ‑‑ would allow us, if we were to do this, to be able to distribute people more effectively across the ranch.

Now, we have been out for the last 30 or 40 days, talking to the public.  We have briefed our conservation partners, which we do a couple of times a year and this last meeting we tried to bring them up to the current status on the project.  That occurred early in October.  Since then, we have met with the Devils River Association, which is a group of primarily landowners but not exclusively that have an interest and hold land along the Devils River, to seek their feedback.

We’ve been out to two public meetings.  One in Del Rio and one in San Antonio, where we had very good participation.  We had 57 or 58 people, I believe, that signed up for the meeting in Del Rio and I think 75 folks that signed up for the meeting in San Antonio.

There were many issues that had been identified by us prior to the public meetings and I want to spend two or three minutes here just telling you what some of the issues are along the river that we identified as we rolled out into the public to seek their feedback.

This river is primarily accessible to the public right now at a spot called Baker’s Crossing and it’s right up there, kind of on the northern end of this map, the topmost part of the map.  There is, indeed, 15 or more miles of river above this but the public does not typically access above this point, so most of the debate is centered around what this project would do and what it would mean to the use of the river, which as you can see, runs down here all the way into the Amistad National Recreation Area.

What we were keenly aware of is that there has been a long-standing user conflict, particularly along the northern stretch of the river.  Most of the ranches up here are large holdings and there’s relatively little ‑‑ very little development along this stretch of the river.  So it has become a very popular place for avid paddlers to go and have a real ‑‑ a genuine wilderness river experience so they can, at this point, put in at the Baker’s Crossing.  If they get in early enough at the Baker’s Crossing and are pretty good at their craft, they can get all the way down this 14 miles between the Baker’s Crossing and our bank along the Devils River State Natural Area.  And, there are no other public facilities or opportunities for camping along this upper stretch and so, for conscientious paddlers, they can put in early in the day here, they can have a pretty long ‑‑ I’ve heard it usually takes ten hours, more or less, maybe 12 in some cases but certainly ten, to get down to the Devils River State Natural Area, where they then can camp because it’s public property and we have four camp sites that are situated along the banks there near Dolan Falls.  And I’ll talk about ‑‑ I mean Dolan Springs.  And we’ll talk about the springs in just a minute.

So the issue there has been that there are paddlers who don’t make that trip in a day and so they end up trespassing along these pieces of private property up here because they’re forced, as darkness falls, to get out of their canoes and find a place to camp.  And, while most paddlers, I believe and we have heard, are certainly conscientious folks that try to do the right thing, there is a certain element of folks that are doing that kind of paddling trip that then take additional liberties with that private property, in terms of littering, there are episodes where they’ve chopped down trees ‑‑ those kinds of things.  There are occasionally confrontations between these paddlers and the landowners who are asking them to move on.

So we were keenly aware of the fact that there’s been this conflict for some time on the northern part of the river and it’s mostly because of the geography.  It’s just a long way to get from Baker’s Crossing down to the State Natural Area and folks are forced, because they don’t plan well, or for whatever reason ‑‑ they leave too late in the day, to end up stopping on private property.

So we knew that was the backdrop at the upper end of the river.  Add to that the issue, that we are very sensitive to, which is the state natural area is an incredibly pristine piece of property in and of itself.  There are endangered and threatened species there, there’s one of the most significant springs in the state of Texas there that provides a significant portion of the inflow to the river from that point downwards.  The springs are very visible and very accessible from the river there.  There is a lot of science that’s been done on this property for many decades so there’s extreme scientific interest and a robust body of science has come off of this property.

We remind you this is a state natural area, not a state park and there is a clear distinction.  State natural areas require a much more keen focus on the natural and cultural assets ‑‑ natural and cultural features of the landscape but we do not believe the state natural areas and public access are or should be mutually exclusive and so, while we recognize and have been very sensitive to the fact that this an extraordinarily sensitive natural and cultural area, we also hope that folks can enjoy that as much as possible.  That was, indeed, part of the genesis of us being so interested in the Devils River Ranch.

The middle part of the river, to move on down the river, is characterized by more development.  As you move down towards the blue circle here, which is part of the river called the Blue Sage Subdevelopment, it’s characterized by somewhat smaller land holdings and more folks and quite a bit more development.  If you fly over this or when you paddle through here, your viewshed is not nearly as pristine and is not as much of a wilderness experience as the upper part of the river.

And then, as you come on down the river to the subject property, the Devils River Ranch, as the river curls around and heads into the lake, there is a lake effect and I will remind you ‑‑ I think I’ve said this before but, the National Park Service actually owns both sides of this river ‑‑ a small strip along each side of this river ‑‑ already of about 4.5 miles.

So of the ten miles of river frontage that this property represents, just less than half of that is already in public ownership, at least right along this edge of the river.  Now, in talking to the National Park Service, which we have, they have clearly recognized that there is not much public access there.  It may be available but the only way to get up to this property would be to take a motorized boat and come up as far as the water level would allow, which in normal conditions is maybe two miles or so up this river, where the river experiences the lake effect.

So there is concern and much of the concern that we heard, from a recreational perspective, was that if we effectuate this exchange, we’re going to eliminate the opportunity for someone to start at Baker’s Crossing and take a long day’s paddle and have a place to stay.  So that was one of the major concerns we heard in the public feedback.

We heard from folks along the lower stretch of the river that there was concern that this would, in effect, push the public use from the upper part of the river to the lower part of the river and that would cause the associated problems of increased litter and increased trespassing down on this part of the river.  So that was a concern we heard from folks along the lower part of the river.

We certainly have heard from our conservation partners that there is a concern about any precedent that we might set by disposing of state natural areas, that it might somehow signal a lack of commitment or a lack of ongoing focus on state natural areas.  We certainly do not have that intent and I think we have a long recent track record of adding land to other state natural areas but that is a concern that’s been expressed and I think it’s a valid concern.

There are significant cultural features on both of these ranches.  There’s some incredible rock art on both.  There are actually ‑‑ we’ve done the background checking on this ‑‑ there are actually 57 known sites on each of these pieces of property.  The relative value ‑‑ I don’t think we quite know yet.  The opinion from our archeologist is that there may well be some increased interest or some increased importance to the sites at the Devils River Ranch nonetheless.

I think the primary thing that the staff was looking at, as we looked at this, is that both of these properties are under conservation easements right now and they are strict conservation easement.  The Devils River Ranch was placed under such an easement when it was originally purchased, or soon thereafter, in the State Natural Area, pardon me.  The Devils River Ranch was placed in a conservation easement by the owner, voluntarily, seven and a half or eight years ago.  Both of those conservation easements are held by the Nature Conservancy who, by the way, has a presence on this river and a long history of trying to help preserve the river, on that orange property ‑‑ the property that’s outlined in orange there, right across from the State Natural Area.

They also, in total, own some ‑‑ manage some 150,000 acres of land along the Devils River that under conservation easements.  So one of the things that we look at was, you know, how effectively is the holder of the conservation easement going to be able to manage these properties, whether this deal goes through or not.  We think it’s a good omen that the Nature Conservancy has a property there.  They have an on-site manager ‑‑ a Devils River site manager, who will be able to monitor the conservation easements on both of these properties, regardless of how this project rolls out.

The financing for this property at this point, there was an $8 million delta.  We have $2 million and some change in state dollars.  We have about $2 million in federal dollars, through the Land and Water Conservation Fund and we had $2 million that’s been committed to by a private donor.  So the delta, as the project has stood to date, has been about $2 million short and we’ve been out looking to fill that gap.

The ‑‑ I guess at this point maybe I should stop and see if there’s any questions.  I certainly have lots more to say but, in order to keep this relatively brief, I’ll be glad to answer questions of interest.  And, by the way, I was going to say earlier and I didn’t, I do have a 54 slide PowerPoint and if any of the members of the audience are interested in that PowerPoint, since we weren’t able to give the whole thing today, if you would come see me right after this meeting, I’ll be glad to make you a copy of that on a CD or a DVD or whatever the technology is that allows that to happen and we’ll get you that, but at this point, I’d be glad to take questions in order to keep this very brief.

COMMISSIONER HOLT:  Scott, I appreciate the time you and Carter and your staff have been working on this project and certainly we have followed the process in all ways, policy, legally and, if you’ll remember, it was on the agenda to vote ‑‑ to the Commission ‑‑ excuse me, to vote on it tomorrow and then we did take it off the agenda and we did that because we have gotten great feedback from a lot of people and a lot of groups, of course, along the Devils River itself but also around the state.  They’re very interested in this uniqueness of this situation and they’ve been very open with us relative to the process and feeling that maybe the process is moving a little too quickly and they’ve also brought to us some very good alternatives.

And so, we’ve spent ‑‑ sorry we took so long in our Executive Session, but that’s what we spent a lot of time talking about.  The last couple of weeks, this has been number one priority because we think the opportunities here are second to none and so, we want the staff to go forward, okay, but we are not going to vote on it tomorrow.

And, let me read the mission of Texas Parks and Wildlife because this is what we always come back to as the Commission, as we’re trying to think of these ‑‑ all with different alternatives and we know for every positive there can be a negative for somebody but our job is, as an agency, is to represent all the citizens of the state of Texas.  The mission essentially says, to manage and conserve the natural and cultural resources of Texas and to provide hunting, fishing and outdoor recreation opportunities for the use and enjoyment of present and future generations.  And there’s no doubt about it, this is a very unique site.  It’s a very unique piece of property.  There’s uniqueness to the way this deal was originally kind of talked about and structured but we have a very willing seller.  We have potential, we think, to raise other funds and maybe do it in a different way and some of the alternatives have been brought to us by our friends who have felt that the process has maybe moved a little too quickly, have been eye-opening, okay.

So what it’s allowed us to do then, as a Commission, is to become, at least in my case and I believe the other Commissioners would agree, more broad-minded in looking at this opportunity.  So what we’ve asked the staff to do, Scott and Carter leading it, is to ‑‑ let’s figure out how to make this work, okay.  The river itself is too important and we need to be ‑‑ we’re already part of it.  Obviously, not just as a state agency but because of the state natural area and we understand the worries of the landowners there, the worries of the paddlers, the worries of conservationists and we want to make sure we take all that into consideration.

On the other hand, we’re also Texas Parks and Wildlife, okay, and there are 23 million people in the state that’s become more and more urban and this has great opportunity, at some level, to open up a wild area for families, okay, to get out into nature, to get into wildlife and to become part of our natural resources.

And so, what we’re going to do is step back ‑‑ I guess would be a good way to put it ‑‑ look at all the alternatives ‑‑ and like I say, we’ve had some good ones brought to us and have asked the staff to move forward.

So we’re going to move forward quickly.  In other words, this is going to keep moving at a rapid pace so I’d ask all of you that are here interested today, as you pass it out, any ideas, thoughts that you may have, please bring them to us.  But, we do have some other alternatives that have come up just in the last couple of days that look like maybe some real opportunity to really add something to our park system that, in my opinion, is second to none, not only in the state but maybe in the United States for wildness and yet some accessibility so families and others could take advantage of that without disturbing and creating issues for those that live out there and trying to find it.  We understand that you always have to find a balance but we want to work with everybody.

So that’s why that vote was put off for tomorrow.  I know some people thought it was rushed.  But we are going to move forward and pursue this opportunity.  So, Scott, I appreciate you taking the time and effort and I know you wanted to give your 54-slide presentation.

MR. BORUFF:  Very much.

COMMISSIONER HOLT:  I don’t know if I could have stayed awake in it but it’s such a unique area.  It’s a phenomenal area and it’s a beautiful area and we can manage it and conserve it and do it the right way, it’ll become a jewel in our park system.  And so, we have to pursue this.  I just believe so strongly in that.  But I will promise the public, we will do it in a correct manner, in an open manner and a transparent manner.  So I appreciate you taking the time and effort and all your staff.  But I am asking you to go forward.  Okay.

MR. BORUFF:  Yes, sir.

COMMISSIONER HOLT:  Any other questions or comments on this particular issue?  Like I say, if anybody’s interested, after the meetings today and tomorrow, please get hold of myself, Carter, any of these Commissioners ‑‑ I know people have strong feelings about this, one way or the other, and, of course, we’re getting lots of feedback both ways and our job, as a state agency, is to take into consideration all of those and then make our decision and we will do that, as a very conscientious commission.

MR. SMITH:  Chairman, I just want to make sure I understand it.  As we go forward and continue words, you want us to look at the range of actions and alternatives that are available to help advance conservation and appropriate recreation on the river and we’ve heard those ideas from landowners, our conservation partners, our paddlers ‑‑

COMMISSIONER HOLT:  Right.

MR. SMITH:  ‑‑ our recreation issues and then bring back a suite of alternatives then that are available to help achieve both parts of our mission, from a conservation and an outdoor recreation and, most importantly, taking care of this extraordinary place.  Is that what ‑‑

COMMISSIONER HOLT:  Yes.  You probably said it in a lot shorter time than I did but, absolutely and, as you know, because Carter and I have been talking about this day and night for the last week or two.  Every day it’s been interesting as people ‑‑ more people have gotten involved, it’s kind of ‑‑ none of us is as smart as all of us.  There’ve been some really terrific thoughts and ideas of ways that we can be part of improving and preserving the wildness out there and yet, at the same time, allow others to be able to take advantage of it and use it in an appropriate manner and we would like to be part of that, as Texas Parks and Wildlife.  And I feel that we already are with the State Natural Area.

MR. BORUFF:  One last comment, if I might.

COMMISSIONER HOLT:  Sure.

MR. BORUFF:  Mr. Chairman, I failed to recognize one of my colleagues who cut his vacation short to come back and see about this project.  Mr. Walt Dabney is here today who, as you know, retired at the end of August and has been out hitting the trails ‑‑

(Simultaneous discussion.)

MR. BORUFF:  ‑‑ for the past couple of months.  He’s looking younger.  I noticed that the wrinkles are going away but Walt Dabney was one of the very first folks who went out and looked at this piece of property ‑‑

COMMISSIONER HOLT:  Right.

MR. BORUFF:  ‑‑ and then came back convinced that this would be one of the crown jewels and would be a transformative process for the state parks division.  So I failed to mention Walt.  He’s been very important to ‑‑ not only this project but to the State Parks Division, for a long time.

COMMISSIONER HOLT:  Absolutely.  I see him back there.  Good to see you, Walt.

Any other questions for Scott?  Turn it back over to you.

COMMISSIONER BIVINS:  Thank you, Mr. Chairman.  This item will be subject to further discussion and I think if you could bear with me for another five minutes, we could set an all-time record for the Conservation Committee, running long.  No, I don’t think I’ll ask you to do that.

Chairman Holt, this Committee has completed its business.

COMMISSIONER HOLT:  Okay, thank you and thank you for your patience, Commission Bivins and all the Commissioners for that matter and our public.  I think most of these others now.  What did we decide on Infrastructure ‑‑ excuse me a minute.  Okay, we had an Ad Hoc Infrastructure presentation that was going to be made.  It wasn’t an action item and we will put that off until the next meeting.  And with that then ‑‑ is it possible? ‑‑ I think, I declare adjourned.

Thank you, thank you.

(Whereupon, at 5:00 p.m., the Conservation Committee meeting was adjourned.)

C E R T I F I C A T E

MEETING OF:    Texas Parks and Wildlife Commission, Conservation Committee

LOCATION:      Austin, Texas

DATE:          November 3, 2010

I do hereby certify that the foregoing pages, numbers 1 through 85, 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.

11/17/10
(Transcriber)         (Date)

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


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