The House Culture, Recreation & Tourism Committee met on March 9 to hear invited testimony only on state efforts to preserve and develop Texas state parks, specifically focusing on Fairfield Lake State Park. A video archive of this hearing can be found here.
This report is intended to give you an overview and highlight the various topics taken up. It is not a verbatim transcript of the discussions but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.
Opening Comments
- Chair Ashby – Will focus on status of state parks with primary focus on Fairfield Lake State Park
- Chair Ashby – Will call a couple panels and agency
Linda Grant, County Judge Freestone County
- Here to ask you to save our park; people come to see the wildlife, to fish, to hike
- Each year have over 80k that visit our park; important to our economy and to citizens throughout the state
- Losing public lands in this state had over $70m investment
- Notes there are many freed slave cemeteries recently discovered in the area
- Chair Ashby – Will be working with TWPD to save this park; used to represent this area now Angelia Orr represents; congratulate you on Fairfield Lake Park winning state park of the year
- Thank you for your work as well
- Orr and Grant discuss kids fishing programs that are held at the park; are many children who would not have this opportunity otherwise
- Orr – Possible there are more burial sites in that area?
- Is possible
- Collier – Aware of how many freed slave cemeteries around the park? Are those cemeteries owned by any particular entity?
- Am aware, not sure who owns
- Collier – When was the last time someone was buried at one of those sites?
- Last year
- Collier – Have heard one was a historical site; concerned about these sites?
- Heard that as well; concerned about it, but the county does not own it
- Collier – Are these families notified if there is a change in ownership of the property?
- Have heard discussion about that, but do not know if any have been contacted
- Collier – Notes there was a dispute about land ownership, not sure if litigation has been finalized
- Bailes – Committee understands is developers’ intentions to restrict pubic access to the park?
- Understand it will be a gated community
Panel 1
Arch Beaver Aplin, Texas Parks and Wildlife
- Thank you for taking time to save our Fairfield Lake Park
- The ownership Freestone County feels for the state park means a lot
- Park hosts children’s programs and have the best bass fishing in the nation
- If we lost this, would lose something we have worked decades to get to
- Are not many places in the state where you get this many visitors versus residents
- Loosing this is a quality-of-life issue
- Are looking to have a conversation with the seller and buyer as all negotiations have shut down
Rodney Franklin, Texas Parks and Wildlife
- Demand for state parks/outdoor space has grown; loss of this park would have a big impact
- Fairfield Lake is one of 89 parks that the state leases; 15 of 17 long term leases are with government agencies including the U.S. Army Core of Engineers
- Lease with Fairfield and Luminant started in 1971
- Vistra has decommissioned their powerplant and announced intent to sell, department has initiated multiple conversations aimed at preserving the park
- Want to maintain public access to the park and lake; in early discussions Vistra was not sure how they were going to package the property
- March 2020 TPWD employees made aware of board’s decision to sell the property as a whole
- Department did not have land acquisition authority or funds at that point; strategy was to work with partners to acquire land
- Worked with a conversation company to put a bid in with an easement and was rejected
- Lack of land acquisition abilities in early discussions; got that authority in 2021 and $7m in funds
- Were unable to carve out the lake or state park area; price of land was $110m which is more than our total budget in a year
- Learned buyer was Todd Interests and were unable to visit with them as there is an NDA
- Learned this buyer had no intention to lease the park to the state and learned it would be a gated community in 2022
- Received termination of lease notice in February 2023 and given 120 days to vacate property which we are in process
- Have never seen any of our parks closed in all time working at TWPD; ask the committee help to save this park
- Governor Abbott recently discussed the importance and need for more parks as the state is growing exponentially; he said we need to fight and care for parks we already have
David Yoskowitz, Texas Parks and Wildlife
- Need to consider the future and need to maintain our outdoor spaces/culture
Brad Watson, Vistra Corp
- Own and operate 60 power plants; Luminant subsidiary includes Comanche Peak Power Plant
- Overviews the history of the lease to the state; leased it free to the state
- Land has significant commercial value after the power plant was closed in 2018; divesting such assets is to recover costs
- $1.3b total in decommissioning liabilities and have the responsibility to recover those costs
- Have spent $90m in decommissioning the park land and will spend $30m more
- Since October have been ongoing conversations with the buyer of the land
- Vistra has been working in good-faith and has granted more time for TPWD to negotiate
- Vistra was not able to negotiate as we are not legally able to negotiate with the state now that we have a contract with a potential buyer
- Have heard the concerns about the state not owning park land at other parks like Lake Colorado City State Park
- Vistra’s invitation is to discuss the sale of Lake Colorado State Park to the state; will still seek fair-market value
Q&A Panel 1
- Chair Ashby – Notes Shawn Todd of Todd Interests was invited to be here and they declined
- Chair Ashby – Will follow up on your invitation to discuss the sale of Lake Colorado State Park
- Collier – Confused about when TPWD was notified about the lease termination?
- Aplin – Found out in 2018, found out in 2020 the lake would not be carved out
- Collier – Noted you did not have land acquisition authority?
- Aplin – Legislative appropriations request for land acquisition authority in 2021; were able to get it in that session, but not prior
- Aplin – In 2019, constitutional that sporting good tax would go to support state parks; funds did not kick in until 2021
- Collier – How much anticipating collecting from sporting goods tax?
- Franklin – $460m a biennium
- Collier – Could not use those funds? Legislature had to give you authority?
- Aplin – Correct
- Collier – One cemetery documented; know of more?
- Aplin – Two on state park property and one on Vistra’s property; could discover more
- Collier – Need to do a deep dive to preserve history/integrity; one is already in contest
- Aplin – Will look into it
- Collier – Will Vistra incur any cancellation penalty if you withdrew contract offer to sell?
- Watson – Are terms set out that we cannot divulge
- Collier – We will assume there will not be any if you do not say otherwise
- Watson – Cannot get into those details
- Collier – Familiar with the cemeteries on the property?
- Watson – Aware of three; all are not owned by Vistra, are owned by other entities
- Watson – Is a statutory right of access to cemeteries over private property
- Collier – Were families notified of sale?
- Watson – They have an easement; they own the land either way
- Collier – Possibility of more gravesites
- Watson – Is possible
- Collier – Previously leased the land state; state did not provide any exemptions?
- Watson – No; last year paid $150k in property taxes; we have never had an exemption on the property
- Collier – Had no benefit from the state?
- Watson – No, was done out of corporate altruism
- Bailes – Are five parcels in question; assessed the taxes for total acreage and would have been $255k which would mean you paid less than that; dispute you got tax benefit?
- Watson – For parkland and lake was a nominal assessment which was adjusted from 2021-2022; do not know what the five parcels you are discussing
- Bailes – Concerned there were no good faith efforts to negotiate with the state on this sale
- Bailes – Vistra did receive a huge benefit in terms of tax evaluations
- Watson – Work with Freestone CAD and recently were increased to align with Richland Chambers
- Bailes – But all other tracks went down?
- Watson – Would have to ask the appraisal district
- Bailes – The answer to Collier’s question of if you got any tax benefit is yes
- Watson – Reiterates the appraisal district set that evaluation
- Watson – A fair lease value would be $1m a month; were willing to give the state this lease for nothing
- Flores – Ever make any attempt to reach out to the state make a deal?
- Watson – Notified the state in 2018 of intent to sell; were discussions back and forth that we would entertain an offer from the state
- Watson – That conservation group TPWD discussed came in with a $50m offer
- Chair Ashby – Asks Aplin about TPWD’s role in this
- Aplin – Early on told Vistra was that we wanted to buy the park, not the generation part; were told no
- Aplin – Buyer is petitioning TCEQ to change the water permit from industrial to consumptive, recreational, etc. and no one will talk about why
- Aplin – Why we need to buy the whole thing; could have a negative impact on the lake
- Aplin – Not sure how you would go through a gated community to get to their easement
- Aplin – Do not know if either party Vistra or Todd are willing to negotiate with us unless the two of them agree to figure this out
- Flores – Parties can agree to get out of a contract but there may be a price tag for the state in order for that to occur
- Flores – Want to know why TCEQ did not hold a public hearing about this permitting request
- Chair Ashby – Have a witness from TCEQ to answer that
- Orr – Was eminent domain used to acquire this property?
- Watson – No; know this was brought up by K. King, but there is no evidence of this, and it did not happen
- Orr – Where would we find these documents?
- Watson – Would be in the Freestone County Clerks Office, but there are no records of this happening
- Orr – Any use of the water on the property since 2018?
- Watson – No
- Orr – $70m state has invested in this park site; including water wells
- Franklin – Wells dug to produce water for needs of visitors
- Orr – Are included in the sale?
- Watson – Yes… but Vistra is puzzled where this $70m came from
- Chair Ashby – Asks Aplin for clarification
- Aplin – Number comes from infrastructure on sight that has been constructed by the department; is closer to $80m now
- Watson – Value of infrastructure totals $15m, but with depreciation is $7m
- Watson – Lease did include an infrastructure reimbursement up to $1m; TPWD did not request any reimbursement
- Chair Ashby – Seems there is a discrepancy here, will err on the side of our state agency on this
- Chair Ashby – Thought of losing the state park is regrettable for everyone; all wondering how we got here; enlighten committee on conversations with prospective buyer?
- Aplin – Negotiations stopped completely; want this park and Lake Colorado State Park
- Aplin – Is a big discrepancy between our goal to keep things as they are and between a gated community with multi-million-dollar homes
- Aplin – Reality is eight years ago Vistra paid $3k in taxes on industrial parcel
- Aplin – Made an offer to Vistra they have not countered/declined to purchase property for $60m with a conservation easement
- Aplin – Offered Shawn Todd $60m for 1.8k acres and he wanted to retain east side of and water rights… would not be the park we know without the lake
- Aplin – Todd said no to an agreed upon level for the lake
- Chair Ashby – Public and body needs to know that you are eager to come to an agreement; committee desires to help you in whatever way we can
- Chair Ashby – Understand wanting to maintain a certain level for the lake
- Chair Ashby – Believe those in the geographic region should have first right of refusal if the water is to be sold elsewhere; concerned greatly about this; impacts of moving that kind of water?
- Aplin – Modified permit would mean 36% of water would be removed to the metroplex; the lake has been filling in and is now 39k acre feet, no longer holds 50k acre feet
- Aplin – Change to the ecosystem of the lake would be horrific even if you took it out gradually, which is not likely to happen
- Watson – Want to clarify in 2014 Vistra paid $5.1m in property taxes; we are not in the drivers’ seat in negotiations, the buyer is
- Collier – Asks about permit of water rights
- Watson – Awarded water rights in the 1960s and were granted a permit and now do not use water for industrial as it has been shuttered
- Watson – Applied to TCEQ last year for flexibility of water use; do this for all closed power plants
- Collier – Notes an induvial with family in one of the cemeteries was not notified of sale
- Watson – In our point of view, not speaking for the buyer, understand the concern, various entities own these properties which are easements in perpetuity or they own the access; are statutorily protected
- Collier – What about those who are not uncovered yet? Look forward to your help on these
- Chair Ashby – Will make sure family members have access no matter the result of this
- Bailes – Asks if you have contradictory numbers to send them to the committee; Bailes and Watson discuss how Vistra acquired the lease with the state
- Flores – When entered into the contract with buyer? Typical to change permit pre-sale?
- Watson – April 2022; do this as a course of business for retired sites
- Flores – Would the new owner be able to get water rights if you had not applied for an amendment?
- Watson – Would be a TCEQ question
- Orr – There is a cemetery on an island, would have rights to across the lake?
- Watson – Yes; would have rights under Section 117.041 Health and Safety Code
- Bailes – If water not utilized for three years would have defaulted back to the state; would not have been on the benefit to not make this permit request?
- Watson – Would be a TCEQ question; would not just let the water rights expire
- Chair Ashby – Look forward to working with you on Colorado State Park
- Watson – Will be on standby
- Chair Ashby and Aplin discuss the possibility of re-opening Fairfield Lake State Park free of charge until the date they have to vacate the property
- Chair Ashby – Talk about Palo Pinto
- Aplin – New state park Palo Pinto is opening in December of this year; have been working with members on stable funding mechanism to add more state parks
- Aplin – After figuring out how to save Fairfield want to figure out how to get more parks sooner
- Chair Ashby – Are encouraged by Vistra by the deal concerning Colorado State Park; would like to see our other leases
- Aplin – Leases are a wonderful opportunity most of the time are owned by another governmental agency; will immediately begin conversations about Colorado Park
- Flores – Conservancies a good way to increase land available for this? Move to increase funding on this?
- Aplin – Yes; conservation easements are a great opportunity
- Bailes – Look forward to park to open in the short and long term; committed to help you on this
- Collier – Want to make a point they did get a benefit as the park was maintained by the state
- Aplin – Agree with you; notes Vistra has received a good value on taxes over the years – which was okay since it was mutually beneficial
Kim Nygren, Deputy Director Water Availability Division TCEQ
- Flores – Why was there no need for a public hearing concerning the permitting change?
- Flores – Explain if this is perfunctory in nature? Would new party have been able to do this?
- Under Water Code TCEQ charged with issuing/amending water rights permits; there is an issued right to impound 50k acre feet of water and consumptively use 14k
- A change to other uses is not subject to contested reviews or a hearing
- Do see water rights amendments in advance of changing hands
- Flores – Environmental impact taken into consideration? Heard the nature of the lake would dramatically change
- No, consider the water rights already in place
- Flores – Was a closed loop, would think change to taking water and selling it off should be considered?
- Current statute tells TCEQ to look at the water right today and if you change the use does it have a different impact
- Know there has been discussion how the lake’s capacity is different than when the water right was granted
- Martinez – Know true capacity?
- Do not
- Martinez – Can impound 44k acre feet?
- Can impound 50k acre feet; do not look at current water levels in water right amendments
- Martinez – What does change of use means for people utilizing the water downstream?
- Will be more uses than just industrial; right would not authorize additional impacts downstream
- Martinez – Process for any person to be entitled to file a complaint in the Water Code; had any complaints?
- Not on Fairfield; complaints you are talking about are those not able to use water entitled to under a contract
- Collier – Public notice not necessary because the changes being requested to not meet requirements of notice?
- Yes
- Collier – Application has been approved?
- Not yet; completed administrative review and is technical review
- Collier – Was representative Orr able to provide input on that type of application
- Any member of this committee or public welcome to provide comments on applications
- Collier – TCEQ is prohibited from considering the current condition of the water in water rights?
- Can consider anything submitted to us, but review will look at what authority the statute gives us; clear change in use does not require public notice
- Application and everything submitted are posted publicly
- Bailes – In absence of amendment/denial of water rights what would happen?
- Right would remain as it is currently; could sell water right and new owner would apply for amendment
- Bailes – Timelines on these water rights?
- Most are issued in perpetuity; some have timelines but very few
- Flores – Any other agency like EPA who would look over environmental impact over an ecosystem that would be devastated?
- EPA does not have water rights jurisdiction
- Bailes – Legislative change could give you a directive to consider the environmental impacts in the future?
- If there was a legislative change, we would be bound by that
- Chair Ashby – Reminder that the bill filing deadline is tomorrow
Closing Comments
- Chair Ashby – Notes there is plenty more to discuss on this topic