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Forrest for the Trees

Wimberley town hall on water
Steve Wood
Wimberley citizens express concerns over the Electro Purification project at Rep. Jason Isaac's town hall meeting in Wimberley.

 

While the citizens of Wimberley pick through the awesome damage wrought by the Memorial Day flooding, a different sort of water fight is reaching a climax at the Capitol.

In a last-minute surprise, an El Paso Democrat is holding up a bill that would bring groundwater regulation to the “white zone” of Hays County, an area without a groundwater district and potentially unlimited pumping. A private company plans to pump 5 million gallons of water a day from the stressed Trinity Aquifer and nearby residents worry the water mining will deplete their wells as well as springs and streams.

House Bill 3405 by state Rep. Jason Isaac (R-Dripping Springs) has passed both the House and Senate and has one final hurdle before it goes to the governor. The bill would extend the jurisdiction of the nearby Barton Springs/Edwards Aquifer Conservation District to the unregulated part of Hays County—the type of local issue that usually attracts little attention from other lawmakers.

But state Rep. Mary Gonzalez, a progressive Democrat who represents a district more than 500 miles away, is threatening to tank the bill with technical points of order. In a statement she said that HB 3405 is “a bad bill for rural Texans that sets a dangerous precedent, does not protect private property rights, and retroactively imposes regulation over certain legal contracts.”

Isaac said he was “furious” about Gonzalez’s gambit, especially because emotions are so raw in Wimberley where people are still missing from the floods. “This is just out of the blue,” he said. “She’s someone else’s pawn.”

Isaac blamed the tactic on a furious lobbying effort by Electro Purification, the company that plans to pump Trinity Aquifer water and sell it to the city of Buda and booming developments in the I-35 corridor.

“The lobby has done a pretty effective job to undermine his bill, to go behind the scenes to do anything and everything to kill it,” Isaac said.

Mary Gonzalez
Courtesy of Mary Gonzalez
Mary Gonzalez

HB 3405 is apparently part of a more wide-ranging legislative tit-for-tat. Gonzalez said an unsuccessful attempt by Isaac earlier on Tuesday to tank a bill she’s carrying that cracks down on revenge porn ”reflects poorly on him and is very disrespectful to numerous Texas victims.”

Sen. Donna Campbell (R-New Braunfels) is threatening to scotch Gonzalez’s legislation in the Senate if she doesn’t relent.

In Wimberley, folks are hoping for a breakthrough.

“We’re flooding her office with calls,” said Louie Bond, a long-time Wimberley resident who lives near the Electro Purification project. “We’ve been searching for missing flood victims and helping our neighbors and friends shovel what’s left of their homes into their dumpsters. … To stand in the way, particularly as we try to cope with this tragedy in our home, is outrageous.”

A discarded backpack found on the Cage Ranch in Brooks County.
Jen Reel
A discarded backpack found on the Cage Ranch in Brooks County.

As early spring in Texas brings the return of bluebonnets, as August marks the beginning of high school football, early summer ushers in the dying season in Brooks County. In the last decade, hundreds of migrants have perished in the unforgiving ranchland of Brooks County, cut down by heat and exhaustion while trying to circumvent a Border Patrol checkpoint on U.S. 281, 70 miles north of the border. By the thousands they slog—old, young, Mexican, Central American—across the sizzling sand, often equipped with little more than a bottle of water and a snack, lied to by their coyotes, pursued by vigilantes with dogs and ATVs. Dehydration can do crazy things to a person: Some strip naked and then roast in the sun. Others lose all sense of thirst and die with a water jug next to them.

Often, the bodies aren’t found for weeks, or months, or years. Some are presumably never found. Unidentified bodies recovered by the perpetually broke Brooks County Sheriff’s Office are sent to a cold-storage facility at Texas State University. In 2012, the most fatal year on record, the sheriff’s department recovered 129 bodies. In 2013, the death toll was 87. Last year, the figure was 61, but by mid-April of this year, authorities had already recovered 23 bodies, putting 2015 on pace to exceed 2013.

The causes of this humanitarian crisis—and that’s precisely what it is—are fairly well studied and understood: Ever-increasing border militarization has funneled migrants into narrower, more remote and more dangerous routes into the U.S. interior. Drug cartels have consolidated control of human smuggling and turned it into a ruthless business. Finally, in the case of Brooks County, the location of the Border Patrol checkpoint near Falfurrias forces migrants into el monte, the wilderness. Deaths began increasing in the mid-’90s, when the checkpoint expanded and border policies became stricter. The checkpoint—or more precisely its location—is the proximate cause of the crisis. Without the checkpoint, many more migrants would survive.

Solving the border security puzzle—if it can be solved—is a momentous task. But moving or abandoning the checkpoint is within the realm of possibility. It is strange that such a proposal is rarely contemplated. Everyone laments the senseless loss of life and yet there is a solution, albeit an imperfect one, within reach. Scrap the checkpoint; save lives.

“It’s not a crazy idea,” says Eddie Canales, a longtime human rights organizer from Corpus Christi who has set up water stations on ranches in Brooks County. “There’s always been rumbling about moving it to San Manuel,” just north of Edinburg. Border Patrol could still do its job at a checkpoint closer to the border, checking travelers for guns, drugs and legal status. The difference is that migrants would face less perilous, more populated terrain; they’d have an easier time finding help when facing a life-threatening situation.

But Canales told me that moving the checkpoint is just tinkering with a complicated situation. Canales lives this crisis. He’s eyeball-deep in the quicksand of South Texas politics. He’s found bodies in the brush and he chats with immigrants in Spanish. But his thinking is global in scope:

“It comes down to the deliberate policy to have undocumented labor with no rights or privileges,” he says. “Immediately, how do you mitigate and prevent people from dying? I don’t know. Within this political climate, it’s all about enforcement. People are going to find a way to get through.”

This is all true, but it’s also the case that migrants and their coyotes adapt to the obstacles—walls, agents, checkpoints—put in their way. If we’re reasonably certain that removing the checkpoint can save lives, then there is no excuse for not considering it. To choose the status quo is to tacitly accept a border enforcement policy that is driving human beings—most of whom come to the U.S. to reunite with family or to seek employment—to take extreme risks.

Border Patrol and local authorities, in consultation with landowners and human rights activists such as Canales, should at least study the issue. Instead, Border Patrol is planning to expand the Falfurrias checkpoint, doubling the number of lanes and adding personnel. In the Valley, the border “surge” of state cops and Texas Guardsmen continues with no end in sight and with uncertain effects on migration patterns. We’ve come to call the ever expanding border operation a “war”—though most of the casualties will be counted many miles north of the border in Brooks County.

Prison takeover - Reeves County Detention Center

 

The world’s largest for-profit prison has minimal oversight, overcharged the federal government by $2.1 million, arbitrarily punishes protesting inmates and suffers from severe understaffing, according to a report released Thursday morning by the U.S. Department of Justice’s Office of Inspector General.

Run by private prison company GEO Group, the Reeves County Detention Complex in Pecos houses nearly 4,000 federal prisoners, mostly undocumented immigrants serving sentences for drugs and immigration-related offenses. Over the last decade, Reeves has been rocked by riots, persistent complaints about inadequate medical care and allegations that prison officials use solitary confinement to punish inmates who complain. In 2009, Reeves was the site of two back-to-back prisoner uprisings after an epileptic inmate, Jesus Manuel Galindo, was found dead in his isolation cell. Galindo, his family and other inmates had repeatedly pleaded with GEO officials for better medical care.

The Reeves complex consists of three compounds. The Department of Justice investigated two of the three sub-complexes, which together hold about 2,400 low-security immigrant inmates.

Perhaps the most alarming finding is that the federal Bureau of Prisons (BOP) asked GEO Group to eliminate minimum staffing requirements for correctional officers, medical care providers and other personnel in its original bid for the facility. Not surprisingly, the prison was almost continuously understaffed from 2007 to March 2009, following two riots in late 2008 and early 2009 that did more than $1 million worth of damage. “BOP officials told us they removed these staffing requirements to achieve cost savings and grant the contractor flexibility and discretion to manage the staffing of the facility,” the report states.

“This audit confirms what we’ve suspected about the BOP’s contracts for private prisons for immigrants for many years,” said Bob Libal, executive director of Grassroots Leadership, a Texas-based group that opposes private prisons. “An extreme lack of accountability has created an unsafe and inhumane system of incarcerating immigrants in substandard private prisons. While immigrants suffer, unaccountable prison corporations are making big bucks off these contracts paid for by taxpayers.”

The private contractor providing health services at Reeves, Tennessee-based Correct Care Solutions LLC, also has persistently understaffed the prison, despite a requirement imposed by BOP in December 2010 that contractors maintain staffing levels of at least 85 percent of the contract requirement. Nonetheless, for three years, Correct Care failed to meet the 85 percent threshold more than 90 percent of the time. The report also found that the company has a “potential financial incentive” to maintain vacancies rather than fill positions at market rates, based on the BOP’s accounting methods.

A staff shortage in the Special Housing Unit—the solitary confinement unit where Galindo was found dead—was so severe that the BOP issued an emergency “cure notice” to GEO Group in September 2012, the report found. The BOP reviewed a video feed from July and August of that year and found that 47 of 70 required inmate counts were simply not conducted, that 30-minute irregular rounds were not consistently or completely conducted and that orderlies weren’t properly supervised.

The BOP saved an estimated $10 million by keeping staffing levels low.

The report states that correctional staff levels were boosted after the riots and that medical personnel have been added because of concerns raised by the Office of Inspector General during its investigation.

The audit also criticized GEO Group for arbitrarily sending inmates to an isolation unit called the “J-Unit.” Created in the wake of inmate protests in October 2013, the J-Unit is intended to isolate prison leaders who have been “found to be coercing other inmates to join demonstrations,” according to the report. (In a footnote, the authors state that they did not investigate the inmates’ demands for things like better pay and additional movement in the recreation yard.) After the demonstrations, prison authorities sent 364 inmates it considered ringleaders to Reeves’ Special Housing Unit (SHU), or solitary confinement unit, which is designed for only 210 people. To deal with the overcrowding, the prison converted a general housing unit into a kind of SHU-lite. Investigators found that in 9 of the 10 cases they looked into, the prisoners didn’t belong in the J-Unit by the prison’s own criteria.

In early 2015, the BOP renewed GEO’s contract for the third time.

payday loan
Courtesy of Taber Andrew Bain via Flickr

 

A year and a half after the Observer documented hundreds of examples of payday loan companies using the criminal justice system to pursue unpaid loans, state regulators have taken action against one company. In December, the Office of Consumer Credit Commissioner ordered Ohio-based Cash Biz to pay a $10,000 fine and provide more than $16,000 restitution to 51 customers the company filed criminal complaints against. In a legal filing obtained by the Observer, Cash Biz, which has 16 Texas locations, agreed that it had “referred its customers for prosecution based on an erroneous belief that a person commits a crime by issuing a check that is later dishonored.”

State law prohibits payday and title loan businesses from even threatening borrowers with criminal action, except in unusual circumstances. And the Texas Constitution states plainly that “no person shall ever be imprisoned for debt.” Nonetheless, many local DAs and justices of the peace serve as de facto debt collectors for the industry, and some people with small payday debts have ended up in jail. Payday and title lenders in Texas can effectively charge unlimited fees for loans, which often carry APRs of 500 percent or more. In December, Texas Appleseed released a report documenting more than 1,500 criminal complaints filed by 13 different payday loan companies since 2012. Many resulted in fines, arrest warrants and even jail time.

Eamon Briggs, assistant general counsel with the Office of Consumer Credit Commissioner, said this was the first time the agency had penalized a company for the practice.

“This certainly appears to be a growing trend and we’re working to make sure our licensees know they can’t be making these referrals unless they have specific concrete evidence of fraud, forgery or other criminal conduct,” Briggs said. “It’s simply not permissible or within the intent of this prohibition to allow [payday and title lenders] to make referrals and simply rely on the DA to decide whether or not there are merits to the claim. We’re working to make sure everyone knows that this is not an acceptable practice.”

Briggs said OCCC asks lenders during an examination process whether they rely on the criminal justice system to collect on bad debt. But “people don’t always answer that question during the examination process truthfully.” The agency relies largely on consumer complaints and information supplied by consumer advocacy groups like Texas Appleseed to catch violations.

Ann Baddour, of Texas Appleseed, said she was pleased that OCCC had taken action against Cash Biz but said the punishment fell short.

“It’s not sufficient because it doesn’t address any of the detrimental impacts it had on these individuals,” she said. “It doesn’t expunge that charge from their record” or fix damaged credit scores. “It’s basically a refund at value, there’s no additional penalty.” It also doesn’t consider how much Cash Biz might have gained financially from threatening customers who made payments directly to the company but not a DA’s office.

“It does seem like me that it’s not a sufficient penalty to create a disincentive for this behavior,” Baddour said.

OCCC says it’s looking into 13 other payday companies documented by Texas Appleseed as filing criminal complaints against customers. But despite the attention by regulators—not to mention the fact that the practice is illegal—it continues.

The agency and consumer advocates want the Legislature to clarify, again, that criminalizing payday debt is not allowed. Several bills would do that but only one—Senate Bill 1650 by Sen. Kevin Eltife (R-Tyler), considered the weakest—has even gotten a hearing. House Bill 3058, by Rep. Helen Giddings (D-Dallas), would put the prohibition in the Penal Code and allow both consumers and the Texas attorney general to sue a wayward lender.

Giddings says her measure is needed to “protect citizens that are being taken advantage of by these predatory lenders.”

But even something that simple, and relatively uncontroversial, is difficult to move through the Legislature. The Giddings bill is not among a handful of consumer loan bills being heard by the House Investments & Financial Services Committee on Wednesday. Lawmakers seem loath to touch anything that has to do with payday lending after back-to-back sessions that featured nasty, and ultimately unsuccessful, efforts to bring any regulation to the $5 billion industry.

“There’s not a desire to pass any meaningful payday bills” this session, said Baddour.

E.V. Spence
Jen Reel
E.V. Spence Reservoir in West Texas nearly empty in 2011

I think I know why Rep. Rafael Anchia (D-Dallas) chose to hold his second climate change hearing on 4/20 instead of Earth Day, which is on Wednesday: You’d have to be high to think this Legislature is going to do anything about climate change, no matter how measly the proposal.

On Monday morning, Anchia’s committee, International Trade and Intergovernmental Affairs, spent a few hours discussing a trio of climate-related bills. Democrats in the Lege have for the past few sessions pretty much given up trying to get anything passed directly tackling carbon emissions, much less debating climate science. Instead, they’ve shifted focus to adaptation, planning and Texas-based solutions to federal efforts to cut greenhouse gases.

State Rep. Rafael Anchia
Beth Cortez-Naveal
State Rep. Rafael Anchia (D-Dallas)

It used to be that Republicans in the Legislature would offer limp attacks on climate science. Now, they sit and listen politely as a parade of scientists, environmentalists, energy experts and ordinary citizens urge the Lege to do something, anything. Then they say little, and do even less.

Anchia opened the hearing with invited testimony from Baroness Bryony Worthington, who Skyped in from the U.K. A member of the House of Lords, Worthington spent a half-hour explaining the European Union’s carbon market, noting that the European cap-and-trade system had been devised in part on successful American pollution trading systems of the type roundly rejected by Congress in 2009.

Anchia, at least, seemed engaged.

The committee then turned to the legislation. A bill by Rep. Eric Johnson (D-Dallas) would direct certain state agencies to consider water availability, weather variability and climate change in their planning. The Texas Water Development Board might, for example, want to grapple with the likelihood of worsening droughts. The Texas Department of Agriculture might want to know if citrus production could be viable in San Antonio some day. The legislation, Johnson said, is “agnostic” about causes. “It just flat-out doesn’t matter what you really believe about the causes of the changes in our water availability, the changes in our weather, the changes in the climate.”

The five Republicans on the committee had virtually nothing to say about the bill, one way or the other.

Most attention focused on Anchia’s proposals to get Texas to at least acknowledge that greenhouse gas cuts are coming, whether we like it or not.

“The Pentagon is modeling for climate change,” Anchia said. “The oil and gas industry is modeling for climate change; the insurance industry is modeling for climate change; the federal government is modeling for climate change; NASA is modeling for climate change. And Texas is out of the loop.”

Anchia’s HB 2080 would direct the Texas Public Utility Commission to come up with a plan to meet the EPA’s Clean Power Plan, the major carbon-cutting rules announced last year by the Obama administration. Under the Clean Power Plan, Texas would likely have to shutter old coal-fired power plants while expanding renewable power and energy efficiency programs. The fossil fuel industry and GOP leaders hate the thing and have launched an aggressive legal effort to strangle the plan in its cradle. If the rules do go into effect, states would have broad latitude in the way they could achieve the greenhouse gas reductions, but failure to act would likely result in the feds taking over.

“The question that HB 2080 discusses is, ‘Who do we want to write the plan?’” Anchia said. “Do we want Texas to write our own customized plan that takes into account details of Texas’ competitive energy market, Texas being a global leader in energy? Or do we want the federal government to apply a one-size-fits-all for Texas?”

An interesting question but not one that the Republicans on the committee engaged with. That was left to Mike Nasi, an attorney with Balanced Energy for Texas, an industry group representing fossil fuel interests. Nasi seemed prepared to litigate the whole matter in front of the committee, calling the plan unprecedented, illegal and highly unlikely to stand judicial scrutiny.

March 2015 temperature anomalies
NASA
March 2015 was the third-hottest March on record

A tag team from the corporate-funded Texas Public Policy Foundation went even further. The Clean Power Plan is “breathtakingly unconstitutional” said Leigh Thompson, an energy analyst with the foundation. It “reduces states to nothing more than a marionette on federal strings.” And “the likelihood of statewide brownouts becomes all but certain.”

But lest you think the conservative plan for climate change is do-nothing, Thompson’s tag-team partner, Bill Peacock, had an answer.

“If people are really concerned about global warming, history has proven that the marketplace, the free market is the best way to achieve that, not government action.”

Meanwhile, back on Planet Earth, NASA reported last week that this was the third-hottest March on record, the hottest January-to-March of any year on record, and 2015 is on pace to be the hottest year on record.

Arresting Development

A settlement for my illegal arrest at the 2004 Republican National Convention means the case is finished—but it doesn't feel like closure.
Republican National Convention 2004
AP Photo/Mary Altaffer
This Aug. 31, 2004 file photo shows a protester being arrested by New York City Police officers during the Republican National Convention in New York. New York City agreed Jan. 15, 2014, to pay $18 million to settle dozens of lawsuits filed by protesters, journalists and bystanders who said they were wrongly arrested at the 2004 Republican National Convention.

In August 2004, I went to New York City to protest the Republican National Convention. I’d wanted to go as a journalist, but no publication was interested in paying a fresh-out-of-college newbie with a handful of clips. In any case, I was an activist and I believed—as do many young people, naively and blessedly—that change could come from the sustained application of raw people power. It was just a matter of mobilizing enough voices with enough energy for enough time. In other words, I was kind of a hippie. I’m still a believer, but my democratic faith has been tempered by a decade of watching Texas descend into a mean-spirited pissing contest between right and far right, in the face of which one teeters between tears and laughter.

On campus, I’d thrown myself with almost reckless zeal into organizing against the wars in Iraq and Afghanistan. We organized god knows how many teach-ins, die-ins, rallies and public forums. The high-water mark was a campus-wide walk-out in February 2003. Thousands of students left their classes and gathered on UT’s East Mall at noon. We spontaneously decided to march around campus and then proceed to an interminably long rally on the steps in front of The Tower. Two days later, Hans Blix told the U.N. Security Council that no weapons of mass destruction had been found. A month after the rally, I was sitting in a dining room in the student union watching the Iraq invasion on television.

What’s the point of protesting, some of my friends wondered. I didn’t have an answer.

Yet there I was in New York a year and a half later. This was after Mission Accomplished, after Abu Ghraib, long after it was apparent there were no WMDs in Iraq. Hadn’t we, the anti-war protesters, been proven right? Half the country didn’t seem to think so, still stuck in a post-9/11 boot-and-rally mode of almost hedonistic overreaction that the Bush administration was adept at stoking.

The scene in New York was shocking. Manhattan had basically been turned into a police state, and I do not use that term lightly or casually. Undercover NYPD officers infiltrated peaceful protest groups, surreptitiously recorded law-abiding activists, and acted as agents provocateur during the protests. Worse, cops illegally arrested and detained 1,800 people in the days leading up to Bush’s speech at the RNC, including legal observers, journalists and people who had nothing to do with the protests. I was arrested on Aug. 31, 2004, while walking with a small band of protesters on Broadway. Plainclothes police on scooters drove up on the sidewalk in front of us while uniformed cops in a van jumped out and surrounded us from behind. My friends ran but I hesitated and was thrown to the ground. I didn’t resist arrest but I hollered about my rights, as people do when they’re being unjustly arrested. While I was in handcuffs, a commanding officer put his fist near my face and threatened to punch me, calling me “punk scum.” (An odd thing to call a Texas boy wearing a pearl-snap western shirt, but that’s New York for you.) I was hauled off to Pier 57, a grimy old bus depot that came to be known as Guantanamo on the Hudson. About 18 hours later, I learned that I had been charged with multiple counts of disorderly conduct and parading without a permit. I was held for about 24 hours before being released. Some of my friends were illegally detained for almost 50 hours without ever being charged. For me, it was a formative experience: It reaffirmed my notion that military marauding abroad has corrosive effects on dissent at home. It solidified my sense that the police state was not an abstraction but a reality, comprised of hardware, tactics and ideology, that presents itself whenever power feels threatened. A few weeks later, still reeling, I wrote, “What I actually witnessed and experienced was the intolerance of dissent and the wholesale discarding of our constitutional rights to free speech.”

Almost a decade later, a federal judge agreed, ruling that those New York City arrests were illegal. Last year, the city finally agreed to an $18 million settlement with the arrested protesters. Last month, I received my part: a check for $1,000. I haven’t cashed it yet because I don’t know what to do with the money. Part of me wants to donate it to a police accountability project or a civil liberties group. Another part of me wants to blow it all on a trip to Mexico.

Legally, the case is closed, but this check doesn’t feel like closure. Today there is no anti-war movement in the U.S. to speak of, and other promising social movements—Occupy, Ferguson—have been throttled by police power. Which makes protesting seem futile. And that’s what they want, right?

State Rep. Geanie Morrison (R-Victoria)
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State Rep. Geanie Morrison (R-Victoria)

Terrell Graham, a mechanical engineer who lives near Goliad, says now that he was naive. Naive to ever think that he and his wife, Patricia, had a slam-dunk case against a developer that wanted to discharge 350,000 gallons of wastewater into a dry creek on their 112-year-old ranch in Bulverde. The drainage—the Grahams dispute the term “creek”—rarely holds any water, and calling it a public watercourse that the developer could use to convey the effluent seemed like a wild stretch.

“We thought this was a mistake, and if we simply explained the situation it to the Texas Commission on Environmental Quality [the developer] would simply go away,” Terrell told a legislative committee this morning.

Instead, TCEQ tentatively approved the wastewater permit.

Graham and family members who own adjacent parcels of the ranch looked into their options. To challenge the wastewater permit, the family would need to go through what’s called a contested case hearing, a sort of mini-trial overseen by an administrative law judge. The Grahams were willing to spend the money to hire attorneys and experts and take on the developer. But they didn’t expect to find that the government would be a bigger adversary than the developer, DHJB Development LLC.

“Throughout this entire case they went overboard in protecting the developer,” Graham said. “Had we just been fighting with the developer, this would have ended by now.”

Graham said DHJB had indicated on its application to TCEQ that the drainage lacked “perennial pools”—a key factor in determining whether a watercourse is public for the purposes of wastewater discharge. But TCEQ insisted to the judge that the unnamed tributary did have perennial pools. “They were fitting the circumstances to the case law.”

During discovery, Graham says, he discovered that DHJB’s attorneys had extensive contact with TCEQ throughout the permitting process, though he’d never been able to get anyone at the agency on the phone. “The developer is wishing the staff attorney a Merry Christmas,” he said.

Nonetheless, Graham convinced the administrative judge on almost every issue. In early March the judge recommended that the permit be rejected, writing that the wastewater “would adversely impact protestants’ use and enjoyment of their property and might adversely affect the cattle that graze there.”

Now, it’s up the three TCEQ commissioners, who’ve been extraordinarily favorable to business interests on issues small and large, to decide whether to follow the judge’s recommendation.

Graham said he feels vindicated that the judge affirmed his issues but described the contested case process as a “fire drill” that few citizens have the patience or resources to deal with.

Even so, several lawmakers, including the chairwoman of the House Committee on Environmental Regulation, are proposing changes that would make it even more difficult for people like the Grahams to prevail.

The lawmakers are reviving efforts to expedite the contested case process, arguing that it’s too burdensome on businesses. While the House geared up today to for a marathon debate on the budget, the House Environmental Regulation Committee heard hours of testimony on House Bill 1865, introduced by Rep. Geanie Morrison (R-Victoria), that would overhaul the way citizens can challenge permits. Supported by heavy hitters like the Texas Chemical Council, the legislation would require judges to issue a decision within six months; subtly shift the burden of proof to the protestant; and presume that the issuance of a draft permit by TCEQ, a routine matter, is “prima facie demonstration” that the permit meets all state and federal law.

“We are at a serious disadvantage because of the length of time it takes” to get permitted, Morrison said today, comparing Texas to other states competing for major industries.

Citizens and environmental groups today described the legislation as a gift to polluters.

The “proposed legislation will limit rights of citizens to participate,” said Carol Birch, a former administrative law judge. It “fundamentally alters the nature of the process and greatly increases the burden on protestants.”

Environmentalists have used the contested case process to slow, kill or improve permits for cement kilns, coal-fired power plants, landfills, refineries, quarries and other industrial facilities.

Out of some 1,900 environmental permit applications last year, only 10 were contested, according to Alliance for a Clean Texas.

Tom “Smitty” Smith of Public Citizen of Texas said similar legislation has been proposed half a dozen times in the last 20 years, but usually has been blocked in the Senate. This time, without the two-thirds rule, he expects it to pass both the House and Senate.

Graham said he and his family are “blessed” to have the resources to fight to the end. (He plans to appeal to district court if the TCEQ commissioners ignore the administrative judge’s findings.)

“But what about the average family that’s living paycheck to paycheck? What chance do they have?”

Morrison said the committee could return today to hear two more bills related to contested case hearings, HB 1113 by Rep. Travis Clardy (R-Nacogdoches) and HB 1247 by Rep. Wayne Smith (R-Baytown), depending on the course of the budget debate.

A portion of the San Jacinto River Waste Pits site, near the Interstate 10 bridge in Harris County, remains visible as the sandy area in the center left of this photograph.
Photo courtesy Gulf Restoration Network/Lighthawk.org
A portion of the San Jacinto River Waste Pits site, near the Interstate 10 bridge in Harris County, remains visible as the sandy area in the center left of this photograph.

In another fight over local control this session, state Rep. Charlie Geren (R-Fort Worth), one of the more powerful lawmakers in the House, is pushing a bill that would erode the ability of cities and counties to collect civil penalties from polluters. This morning, Geren described the latest version of his House Bill 1794 to the House Environmental Regulation Committee as a way to curb “lawsuit abuse” by capping the maximum penalties that can be assessed on environmental violators at $4.3 million and imposing a five-year statute of limitations on the filing of lawsuits.

The legislation appears to be a response to high-profile litigation between Harris County and three companies considered liable for the San Jacinto River waste pits, an EPA Superfund site that has been leaking dioxins into the San Jacinto River and Galveston Bay for decades.

While Geren jettisoned some of the most far-reaching parts of the original version of HB 1794—a requirement for local governments to prove that a company “knowingly or intentionally” violated the law, for example—local authorities and environmentalists said they were still opposed.

Tom “Smitty” Smith, the veteran head of Public Citizen’s Texas office, said cities and counties need the ability to force polluters to pay civil penalties because state enforcement of environmental laws is so weak.

“We think the [Texas Commission on Environmental Quality] is a toothless tiger,” he said. The agency doesn’t have the resources or “the guts to go after biggest polluters.”

First dug next to the river in 1965, the pits were only determined in 2005 to be the primary source of dioxins in upper Galveston Bay, which has been under a fish consumption advisory for two decades.

Local authorities, environmentalists and citizens of nearby neighborhoods contend that the waste pits have caused incalculable harm to the ecosystem and are responsible for a cluster of cancers and other diseases in Highlands and Channelview. In 2011, Harris County Attorney Vince Ryan sued the three companies he claims are liable for the damage caused by the dioxins in public waterways: International Paper, Waste Management of Texas and McGinnes Industrial Maintenance Corporation. The county asked for an eye-popping $1 billion.

Last year, as the lawsuit barreled toward a jury trial, two of the companies—Waste Management and McGinnis—settled for $29.2 million. International Paper was found not-guilty by a jury on a 10-2 vote.

Jackie Young, a 28-year-old Houston woman and Miss Houston Rodeo 2013 who grew up in Highlands, a community near the waste pits, told the committee that dioxins from the waste pits poisoned her family and neighbors. Young’s father suffers from multiple myeloma, a rare bone marrow cancer that she says is shockingly common among citizens in the area around the pits. Young has had two surgeries on her reproductive organs since 2013 and has experienced seizures, fatigue and other symptoms she associates with exposure to dioxins.

“There’s no cap on our medical expenses,” she told the committee today, “and there’s no cap on the medical expenses that many of our residents have incurred.”

Cost estimates for remediating the waste pits range from $100 million to $600 million.

“My father may never walk me down the aisle and I may never have kids, but that is my reality, I believe, like many other families in Channelview and Highlands, because companies dumped in our environment. To think that legislation is seriously being considered to limit and minimize penalties … is ludicrous.”

State Rep. Charlie Geren
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State Rep. Charlie Geren

The Geren bill requires local government lawsuits against water polluters to be filed no later than five years after the company reports a violation or receives an enforcement notice. But Highlands and Channelview residents knew little to nothing about the waste pits for decades, in part because the successor companies didn’t bother to make the issue known to the community or regulators.

Young said her organization, the San Jacinto River Coalition, recently completed testing of the soil in 15 yards along the San Jacinto River in Highlands and Channelview. All 15 tested positive for the specific kind of dioxin leaching from the waste pits. The Harris County lawsuit, she said, was the first time many in the community were even aware of the waste pits—a popular spot for fishing, crabbing and, as one older man testified today, water-skiing in his youth.

County- or city-led lawsuits seeking penalties from water polluters are relatively rare, but Harris County, with its vast petrochemical facilities, 20 known Superfund sites and loose rules that allow homes next to industry, is probably the most litigious. In the last 19 years, the county has issued 18,000 violation notices to companies and filed 205 civil actions, said Cathy Sisk, a retired environmental attorney with Harris County. She said the county only resorted to the lawsuit because the three successor companies hadn’t done anything to clean up the site, even going so far as to defy EPA’s orders.

“We feel like in those cases we need a hammer,” she said.

Harris County Commissioner Jack Cagle, a Republican, made a pitch for keeping local control. “Government is best when it’s closest to the people,” he said. Sometimes, state officials are “removed from the passion of the folks who actually live in the neighborhoods, where we work, where we breathe, where we play and live.”

HB 1794 was left pending. A companion bill in the Senate, SB 1509, by Sen. Kelly Hancock (R-North Richland Hills) has yet to be assigned a committee.

Hill Country Water Torture

Wimberley town hall on water
Steve Wood
Wimberley citizens express concerns over the Electro Purification water project at Rep. Jason Isaac's town hall meeting in Wimberley.

[Ed. note: The original version of this story ran in the March issue of the Observer.]

Coming into Wimberley from Kyle, the suburban plains subtly give way to the Hill Country. The homes grow fewer, the land begins to ripple, the soil thins and the limestone starts outcropping. For me, the Hill Country begins somewhere around the Hays City Store, near the precinct line, the last stop for a six-pack before you enter the dry part of Hays County.

By the time you pass St. Stephen’s Church and drop down into the little valley that holds spring-fed Lone Man Creek, where, in the fall, the red oaks look like ripe pimento in the green cedar canopy, you’ve reached the Hill Country. It’s in this liminal zone, 10 miles or so west of the roar of I-35, where many people have discovered recently that they reside in what water experts call a “white zone”—a part of the state that has no local groundwater district and therefore no pumping regulation. In the third of the state that lies in a white zone, the 110-year-old Rule of Capture is in full effect.

Blanco River
aheatwole via Flickr.com
Cypress roots along the Blanco River

The Rule of Capture is, in legal terms, a law of non-liability: It holds that you can pump as much groundwater from beneath your land as you want, and there’s not a thing anyone else can do about it. It’s a downright unneighborly law, but it can make for good profit. A private company, Electro Purification, recently moved into the Hays County white zone to take advantage. It plans to pump up to 5.3 million gallons per day from the stressed Trinity Aquifer to supply water to the I-35 boomtown of Buda and two large master-planned communities. That’s enough water for at least 30,000 people.

I’ve seen my share of water fights in Wimberley, where I went to high school and where my parents still live, but the Electro Purification deal has inflamed people unlike any other. There’s the way the company slunk into the area like a thief in the night. There’s the Byzantine nexus of local politicos, engineering firms and wheeler-dealers. But mostly there’s the sense that something precious is being stolen.

“It’s Trinity water, not ‘infinity’ water” is the rallying cry that has brought together a mix of retirees, cedar choppers, Austin expats and various all-purpose weirdos who call Wimberley home. The Trinity is indeed finite—and declining. Like many Texas aquifers, it’s being relentlessly mined. That’s the inevitable result of a growth-at-any-cost, anti-regulatory mentality that, left unchecked, will eventually sap Texas of vitality—first ecologically, and then economically. Overpumping, compounded by drought, is draining our springs, creeks and rivers, and straining private wells. Water marketers such as Electro Purification threaten to hasten the process on an industrial scale.

In early February I attended a Wimberley town hall meeting hosted by state Rep. Jason Isaac (R-Dripping Springs). One Facebook wag had a perfect description of the scene: “It was [a] rollicking good Texas time, complete with traffic jam, packed hall, TV cameras, signs galore, good guys, bad guys, fat cat lawyers, tanned developers, tears, confrontations, and best of all, a couple pissed-off politicians.”

An engineer hired by the city of Buda told the crowd that preliminary modeling showed that at least 30 to 40 private water wells near the Electro Purification pumps would experience a “significant” reduction. “Your well will appear to have gone dry,” he said. But don’t worry, you can just lower your pump, he told the crowd. A presentation by one of the developers focused on amenities at his master-planned community, as if we’d all been lured to a timeshare presentation. The Republican county commissioner called Electro Purification’s CEO a liar and a fraud and said, “We don’t want you here.”

It’s unclear what can be done. Isaac has filed bills that would allow nearby groundwater districts to annex the white zone, but no one knows if that would stop, or even limit, the Electro Purification project. And Isaac and state Sen. Donna Campbell, both tea party types, have in the past shown little appetite for giving local groundwater regulators the funding and tools they need. Isaac has said he’s absolutely against any new property tax, though that’s how almost every groundwater district in the state is funded.

But if any community can beat the odds it’s Wimberley. My hometown has an extraordinary amount of civic engagement on environmental issues, with more than its fair share of affluent retirees who love a good fight. It doesn’t hurt that the natural beauty of the area is known far beyond that corner of the Hill Country.

Citizens have formed the non-profit Trinity Edwards Springs Protection Association and are working with Jim Blackburn, a veteran Houston environmental attorney who owns a home on Lone Man Creek, to prepare legal action. One option is to pressure the Edwards Aquifer Authority, the grandaddy of state groundwater entities, to administer the Electro Purification project. Although the Edwards Aquifer Authority’s jurisdiction only extends to the aquifer of that name. The Edwards, which is the primary source of drinking water for San Antonio, is a big aquifer, but it’s also highly sensitive to drought and pumping.

Blackburn claims that the Edwards and the Trinity—both are karsty, “leaky” aquifers—are interconnected enough that what happens in one can impact the other. Blackburn says he’s preparing a letter to the authority outlining a case for regulating the portion of the Trinity in western Hays County not covered by a local groundwater district.

Meanwhile, Blackburn is preparing a lawsuit against Electro Purification that will seek to overturn the Rule of Capture. Blackburn said the Texas Supreme Court’s 2012 decision in Day vs. Edwards Aquifer Authority—the last big landmark groundwater case—is at conflict with the way the Rule of Capture works. In Day, the court established an absolute private property right to groundwater “in place” beneath the land but the Rule of Capture permits groundwater to be drained by a neighbor.

Groundwater district map
Texas Water Development Board
Roughly one-third of Texas lacks a groundwater district. The white areas on the map lack a district.

“The regulation is piecemeal and the rules are unfair—they allow private property to be taken,” Blackburn said. “If it was a government entity that did that you could sue them for inverse condemnation.”

Overturning, or significantly modifying, the Rule of Capture is a hugely ambitious goal, but Blackburn is no stranger to tough environmental fights. He represented the nonprofit Aransas Project in a federal lawsuit that challenged Texas’ management of water rights in the Guadalupe and San Antonio rivers. In 2013, a federal judge agreed with the Aransas Project that the state had violated the Endangered Species Act by failing to ensure enough freshwater reached the winter habitat of the endangered whooping crane along the coast. (The environmentalists lost at the Fifth Circuit but are appealing that decision to the U.S. Supreme Court.)

Wimberley and Texas need a system—and a mindset—that makes conservation the rule, not a luxury. Some water-stressed areas may have to discourage growth and require rainwater catchment and graywater reuse systems on new homes. I know that sounds crazy in this political climate, but it’s not as nuts as flushing an aquifer away. You don’t miss your water till the well runs dry.

A family looks on as a world  devoid of plastic bags and full of gay marriages is consumed by flames.
A family looks on as a world devoid of plastic bags and full of gay marriages is consumed by flames.

Like Lt. Gov. Patrick Dan, I don’t know if the end days are today or a thousand years from now.

But it sure as hell feels like they may already be here.

Moms pulling guns on 14-year-old rivals of their daughters. Firefighters shooting dogs and posting photos of the deed on Facebook. Llamas willfully disobeying traffic laws. Rick Perry, foreign policy expert.

While we wait for the seven-headed, 10-horned red dragon to appear, there’s plenty of bidness to get done. Let’s get to it.

1) Sen. Donna Campbell (R-New Braunfels) is growing into a RINO right before our eyes. Tea partiers, they grow up so fast. Earlier this week, Campbell presented her bill to keep the United Nations from Boutros Boutros Ghali-ing the Alamo. Senate Bill 191, Campbell explained, would “prevent vesting any ownership, control, or management of the Alamo to a foreign company or any entity formed under the laws of another country.”

Now, it just so happens that UNESCO is considering the Alamo as a World Heritage Site. This would put the Alamo in the company of the Statue of Liberty, the Taj Mahal and the Great Wall of China. Kind of a big deal—and one supported by almost every San Antonio civic leader and Alamo booster.

At the committee hearing on Tuesday, Campbell insisted her bill had nothing to do with UNESCO, but also warned her peers that “anything that starts with the ‘UN’ gives me cause for concern.” (Take that UNited States!)

Campbell seemed to think that Antonio López de Santa Anna had been reincarnated as a blue-helmeted UN-ista eager to reclaim the Alamo. As the San Antonio Current Express-News delicately put it, “Donna Campbell’s plan to protect the Alamo from the U.N. isn’t going well.”

But on Wednesday, Campbell was waving the white flag: In a statement to Fox 29, she said, “I’m comfortable with the U.N. recognizing the Alamo as a World Heritage Site so long as Texans continue to own, control, and manage the official Shrine of Texas Liberty.”

One way to describe this is as a flip-flop. Another way is to say Donna Campbell was against U.N. control of the Alamo before she was against it. Still another is that she’s becoming the statesman we always knew she was.

All’s I know is, there may not be a basement at the Alamo, but there’s an attic, where we keep our politicians.

 

2) Meanwhile, some of our legislators are tackling our thorniest problems. No, not the threat of a super-mega-drought in the Southwest unlike anything modern civilization has ever survived. No, not the thousands of people literally dying from lack of health care. No, not the state’s crumbling infrastructure. No, not the fact that the rich are seceding from the rest of us. Our Leaders For Liberty™  have bigger things to worry about. Like: plastic bags. More specifically, liberating plastic bags from local government overreach.

Imagine: a world in which city councils pass ordinances strongly disincentivizing the use of plastic bags in an effort to reduce the incidence of said bags littering the local byways, parks and Big Lots! parking lots. A world where one is forced to bring one’s own tote bag (everyone’s an NPR liberal now) to the H-E-B. A world where businesses no longer have the right to provide a single-use plastic bag to a customer (or, bags, since those damn things always seem to rip unless the clerk double-bags one’s milk and one’s Hungry Man frozen dinner.)

Imagine: Austin, Brownsville, Dallas, Laredo.

State Rep. Matt Rinaldi (R-Irving) doesn’t want to live in that world. There’s no bag ban in his district… yet. But it’s right at the doorstep. Look it up: Domino Theory.

Others have come before in this fight. But now it’s Rinaldi’s turn. He has responded with House Bill 1939, which would establish a “RIGHT OF BUSINESS TO PROVIDE BAG TO CUSTOMER” and repeal all existing plastic-bag regulations in Texas. Call it the Freedom Bags Restoration Act of 2015.

Are the bag bans a silly effort for local elected officials to look like they’re doing something bold for the environment? Maybe. Are state GOP leaders, including Greg Abbott, weirdly obsessed with the decisions of every level of government but their own. You decide.

3) Finally, the gays. How far they’ve come! How upset that makes some people!  Almost 10 years ago, 13 percent of Texas voters voted for a constitutional amendment banning same-sex marriage. Now that ban looks more fragile with every day as public opinion continues to shift in favor of marriage equality, the courts mow down same-sex marriage bans and two women got married in Travis County in a bit of a fluke.

In short, it’s the End Times. What to do?

One: Have a pity party with a cake celebrating a law that has been declared unconstitutional in 37 states and counting.

Two: Hand-write a complaint to the State Commission on Judicial Conduct about that Travis County judge that married those ladies. Bonus: Be so pro-straight marriage that you’ve gotten married five times.


Three: Do nothing. Wait for the end of days. They’ll be here soon.

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