| (a) WHEREAS, Senate Bill 2, as enacted by the 77th
Legislature, Regular Session, provided important responsibilities
to the above-referenced agencies with regard to studies of instream
flows through year 2010;
(b) WHEREAS, it is extremely important that the studies
authorized by the 77th Legislature be accomplished in an effective
and efficient manner that maximizes the utilization of available resources;
(c) WHEREAS, the Texas Water Development Board (Board)
is authorized by Section 6.190 of the Texas Water Code to enter into
this agreement, the Texas Commission on Environmental Quality (Commission)
is authorized by Section 5.229 of the Texas Water Code to enter into
this agreement, and the Texas Parks and Wildlife Department (Department)
is authorized by Section 11.0171 of the Texas Parks & Wildlife
Code to enter into this agreement;
(d) WHEREAS, the results of the instream flow studies,
the subject of this Memorandum of Agreement, shall be considered by
the respective agencies in performance of their statutory duties and
responsibilities. Nothing in this agreement restricts the use of the
studies by the agencies in their statutory discretion, duties, and
responsibilities;
(e) NOW, THEREFORE BE IT RESOLVED that the Board, Commission
and Department do hereby make the following operating agreement regarding
studies of instream flows as required by Section 16.059 of the Texas
Water Code (Collection of instream Flow Data; Conduct of Studies).
(f) COORDINATING COMMITTEE.
(1) An Instream Flow Studies Coordinating Committee
(Committee) shall be established as a three-member Committee comprised
of the Executive Administrator of the Board and the Executive Directors
of the Department and the Commission, or their designees.
(2) The representative from the Board shall serve as
chairperson of the Committee from the effective date of this agreement
until August 31, 2003.
(3) Thereafter, the chairperson shall serve a one-year
term and the chair shall be rotated annually, as agreed upon by the
Committee, from the Board's representative to the Department's representative,
and thence to the Commission's representative.
(4) The Committee shall meet at least annually and
may meet more often as necessary and agreed upon by the Committee.
(g) DUTIES AND RESPONSIBILITIES.
(1) The purpose of the Committee is to provide the
overall policy, direction, and guidance for the completion of the
instream flow studies authorized by the 77th Legislature.
(2) The Committee shall approve a programmatic work
Plan by December 31, 2002, which shall include the following:
(A) a list of the priority segments to be studied and
interim deadlines for publications;
(B) the scope of the studies;
(C) the assignment of agency responsibilities in conducting
the studies;
(D) the timeframes in which the studies or parts of
the studies are to be completed; and
(E) the general methods used to conduct the studies.
(3) The Committee shall ensure that resources of the
agencies are utilized effectively and efficiently to accomplish the
studies. To assist the Committee, each agency shall also designate
lead staff to equally share oversight of the program studies, to maximize
in-house capabilities of personnel and equipment, and to minimize
costs to the state. The Committee shall also consider inviting cities,
river authorities, water districts, other political subdivisions of
the state, universities, and federal water agencies to cooperate with
and participate in the conduct of these studies whenever practicable.
(4) The Committee shall establish an Interagency Science
Team (Team) composed of staff scientists and engineers assigned to
work on the studies by the agencies and their cooperators. The Team
shall assist the Committee by drafting study plans and scopes of work,
by supervising and facilitating contracts, and by conducting and reporting
on the priority studies identified in the Work Plan.
(5) For all contracts by any agency for work to be
performed in furtherance of the Work Plan, the Team shall draft the
study plans and scopes of work and provide recommendations for contract
facilitation prior to the agency's presentation of the contract to
its board, commission, or other agency official possessing the authority
to approve such contracts.
(6) The Committee shall ensure that a productive data
and information exchange is accomplished among the agencies. Also,
the parties hereto do each agree to promptly furnish, free of charge,
any and all correspondence, memorandums, study reports, contracts,
data and any other information relating to instream flow studies that
may hereafter be requested by any of the parties hereto and which
are not privileged and confidential under law.
(7) The Committee shall attempt to reach unanimous
agreement on all decisions made in exercising its duties and responsibilities
under this agreement, but in no event shall the failure of the Committee
to reach a unanimous agreement on a decision frustrate or deter the
intent, direction or purpose of this agreement or the duties and responsibilities
of the Committee as defined hereunder.
(8) The Committee shall attempt to resolve technical
disputes by seeking consensus from the Interagency Science Team. The
Committee may direct Team members to meet specifically for the purpose
of resolving professional differences in order to reach a compromise
solution, and to report that solution back to the Committee.
(9) To assist the agencies in performing a scientifically
sound program, the Committee shall appoint an independent Scientific
Advisory Group to review and comment on study methods and plans prepared
by the Team. The number and composition of the Scientific Advisory
Group is at the discretion of the Committee and may vary from time
to time.
(10) The Committee may also resolve interagency disputes
by seeking the advice of their governing bodies.
(h) NON-BINDING CLAUSE. Nothing in this agreement shall
preclude any of the agencies from executing interagency contracts,
operating agreements, establishing other committees, or otherwise
utilizing available resources to achieve specific statutorily assigned
responsibilities regarding instream flow studies not related to Section
16.059 of the Texas Water Code.
(i) ENTIRE CONTRACT. The agencies agree that this Memorandum
of Agreement contains all the agreements with regard to the contents
and that no oral agreements shall be recognized or shall in any way
modify this Agreement. This Agreement may be modified only by agreement
signed by parties to this Agreement.
(j) EFFECTIVE DATE. This Memorandum of Agreement shall
be effective when signed by all of the agencies and shall terminate
30 days from the date of written notice of intent to cancel this agreement
by any of the agencies.
(k) IN WITNESS WHEREOF, the agencies have caused this
Agreement to be executed in triplicate originals, each of which shall
constitute an original document.
(l) Dated October 17, 2002.
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