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Meeting to change Galveston, Chambers county line draws hundreds on peninsula

Might it be called Bolixit?

While there’s no grammatically smooth way to give the idea of removing Bolivar Peninsula from Galveston County, a meeting in Crystal Beach on Saturday showed there was interest in talking about it.

Hundreds of people attended the meeting in the downstairs bar at the Stingaree Restaurant to hear details about what it would take to change the county lines and move the peninsula, jurisdictionally speaking, into the neighboring Chambers County.

The meeting was convened by state Rep. Mayes Middleton, a Republican from Wallisville, who was elected in November to represent Chambers and Galveston counties.

Middleton said he called the meeting at the request of people he met on the campaign trail, who had expressed frustration about the level of representation they receive in Galveston County.

“The last time we had a town hall about this was 1937,” Middleton said. “I knocked on a lot of doors around here and I heard it several times.

“And then I was starting to hear a lot more as the coastal barrier issue came up. We just needed to have a town hall.”

In order for a switch to happen, a resident of each county must produce a petition of 50 signatures proposing an attachment and detachment election, Middleton said. Then voters in both counties must approve a switch in county-wide referendums.

Such elections could happen as soon as November 2020, Middleton said.

While he officially took a neutral stance, Saturday’s meeting was notable for the attendance of multiple Chambers County officials and the absence of any elected officials from Galveston County.

Chambers County Judge Jimmy Sylvia, as well as county commissioners, the Chambers County Sheriff and other local officials attended the meeting. Galveston County Judge Mark Henry and County Commissioners Darrell Apffel both said they had prior commitments that kept them from the meeting.

When it was announced two weeks ago, Galveston County officials said they were taken by surprise by the meeting and did not have any prior notice about it before Middleton made a public announcement.

They requested the meeting be rescheduled, but Middleton said he could not do that because scheduling conflicts related to the Texas legislative session.

On Saturday, Middleton complimented Galveston County’s leadership, but said some people still were frustrated by and had complaints about how past administrations had treated them.

“Most of it is backward looking,” Middleton said. “They’re looking backwards at some things that happened before a lot of the people that were elected into office now, in the post-Ike era.”

He pointed to a sewer system that was proposed, but not built, after the 2008 storm that devastated the peninsula. Some people were also concerned about the county’s advocacy for the peninsula in the ongoing discussion around the proposed coastal storm surge barrier.

The proposal to change counties is so unusual that many of the questions surrounding it still remained to be hashed out — but the center interest Saturday was what benefit peninsula residents would get from the switch.

“What I wanted to hear about was the money,” said Jim Brown, a Crystal Beach resident. “I want to know if Chambers County has enough equipment to do what Galveston County is doing.”

Galveston County is budgeted to collect about $6 million in property taxes from Bolivar Peninsula in fiscal year 2019, according to numbers provided to The Daily News. It also estimates that it will collect another $925,000 from beach parking stickers.

On the other side, the county plans to spend $12.3 million on the peninsula, on beach maintenance, policing and general government spending, according to the county.

Middleton, citing his office’s own analysis, said the county’s spending on the peninsula came out “about even.” He said the state reimburses the county for some of its costs there — including security details on the Galveston Island-Port Bolivar Ferry.

Middleton also suggested that Bolivar residents’ tax bills could be lowered with a change, but quickly added caveats to that statement.

“At the end of the day, it is a tax cut as well, and that’s always good,” Middleton said, before acknowledging the Chambers County had an upcoming jail project that could change that analysis. “That number has not been finalized. So that would be factored into this. That could potentially be higher taxes.”


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editor's pickcenterpiece
Wetlands drowning in legal quagmire

A prairie pothole wetland in Galveston County may look to the naked eye like a field of weeds. There is no open water feature, no flowing creek, not even a visible ditch to transport the waters that collect on them all the way to Galveston Bay.

Step foot on one of them, however, and you’ll know the water is there.

These wetlands are embedded in coastal plains, thousands of acres of them, being continually purchased, bulldozed, denuded, filled in and paved over to make way for a subdivision or a strip mall somewhere in the county.

They are often referred to as “isolated” wetlands because they lack visible connections to “navigable” waters, which the U.S. Army Corps of Engineers is charged with protecting.

The connection between these waters has been highly contested in courts over the past two decades, leading divisions of the corps, including the Galveston Division, to conservatively apply or deny jurisdictional protection under the Clean Water Act to prairie pothole complexes in Galveston County.

A closer-to-the ground perspective was described by the Texas Parks & Wildlife Department in a 2003 letter to the Environmental Protection Agency, urging the agency not to narrow its definition of wetlands the corps was required to protect.

The Texas Parks & Wildlife Department, in charge of protecting waters for fishing and other purposes in Texas, offered the letter as a public comment to the federal government at a time when interpretation of the Clean Water Act, Section 404 protecting wetlands, was poised to exclude so-called isolated wetlands from legal protection after a key 2001 Supreme Court decision.

The Texas Parks & Wildlife Department said the use of the term “isolated” was ill-advised because it was not based on scientific knowledge about wetlands.

These prairie pothole wetlands, depressed areas of highly vegetated prairie with dense clay soil, capture rainfall runoff and hold it, because the land is generally flat and the soil percolates slowly, an addendum to the letter said. Some of that water seeps in the ground and is stored. Some of it evaporates. And some of it, when the wetland is full, flows downslope to another wetland until, finally, the water reaches a tributary that flows into the navigable waters of Galveston Bay.

Unseen to the human eye are “very large volumes of water treated by these isolated wetlands,” according to the department. An estimate of about 25 percent of the water that falls on these wetlands eventually makes it to the bay, according to wetland scientists. Without treatment, it carries with it all of the pollutants the surrounding environment has surrendered.

Jurisdictional status, a legal definition of which waters should be protected under the Clean Water Act, should be based on wetlands’ function of keeping pollutants out of downslope waters, rather than on whether they are visibly connected to navigable waters, the department argued in its letter.

Fifteen years later, that argument is still being made by scientists and environmental groups and by the government agencies sworn to protect the nation’s waters.

But states’ rights advocates, business interests, the doctrine of economic growth and another Supreme Court case resulting in an unresolved split decision in 2006, have fueled a continuing argument on the other side, seeking to limit protections under the Clean Water Act and, subsequently, the Clean Water Rule of 2015, enacted by the Obama administration.

In Galveston this year, that battle will play out in one of many federal lawsuits around the nation, seeking to either uphold the 2015 Clean Water Rule, to abolish it and replace it with new weakened guidelines proposed by the two-year-old Trump administration, or to leave things as they are.

A BACK-AND-FORTH PROCESS

At the local and regional level, courts sometimes settle differences on whether violations of the Clean Water Act have occurred and wetlands have been encroached upon illegally. Houston environmental attorney Jim Blackburn said he has used the courts many times to settle environmental issues.

“That’s the best place to work these things out,” he said. “If I really think there’s a violation, then I go to federal court. It’s not personal. It’s legal. It’s about principles and legal interpretations, and some cases you lose.”

These cases are valuable because of their long-term effect, not so much because of their immediate outcome, Blackburn said.

“An important issue has been raised and considered,” he said. “Success comes from the back and forth of the process.”

The Environmental Protection Agency in Galveston County is empowered to enforce violations of the Clean Water Act, and more often than not settles those cases at an administrative level rather than in court, demanding compliance action from some offenders.

Of 80 cases in Galveston County from 1983 to 2018, listed on the agency’s Enforcement and Compliance History online, 22 resulted in compensatory action and 21 were taken to court and resulted in federal penalties. That averages out to a little more than one case per year that resulted in a payoff.

Two of the largest settlements were with the city of Galveston in 1996, when the agency required $1.3 million in compliance action in each case.

A 2000 case involving an Amoco Oil Co. pipeline in the county resulted in a federal penalty of slightly more than $1 million.

Three actions have been brought by the agency in League City over those 35 years, resulting in nearly $2 million in required compliance action.

In general, based on the relatively few documented compliance actions, companies and municipalities try to meet federal standards, obtain proper permitting from the Corps of Engineers and try to comply under the corps’ interpretation of the Clean Water Act.

But the water is muddied when it’s unclear which wetlands must be protected under federal law.

MUDDY WATERS

In 2015, the Environmental Protection Agency attempted to clarify many years of confusion and mixed legal interpretation about what constituted protected waters and passed the Clean Water Rule.

This involved a massive scientific review process and roughly 2 million public comments, according to Clean Water Rule documents. The rule’s authors asserted their purpose was to ensure that “waters protected under the Clean Water Act are more precisely defined, more predictable, easier for businesses and industry to understand, and consistent with the law and the latest science.”

Under the rule, Texas prairie pothole complexes and coastal marshes were specifically defined as essential wetlands that should be protected.

“Wetland complexes could have connections to downstream waters through stream channels even when the individual wetland components are geographically isolated” and those should be included among the protected Waters of the United States, the 2015 rule determined.

Almost immediately, states began filing lawsuits against the Environmental Protection Agency and the U.S. Army Corps of Engineers, including in the U.S. District Court for the Southern District of Texas in Galveston.

In June 2015, the state of Texas, along with the states of Louisiana and Mississippi, filed suit in the Southern District Court against the Environmental Protection Agency and the Corps of Engineers, challenging the legality of “the final rule titled ‘Clean Water Rule: Definition of the Waters of the United States.’”

Other plaintiffs whose cases have been consolidated into the states’ case include the American Petroleum Institute, the American Road and Transportation Builders Association, the National Association of Home Builders, the National Association of Manufacturers and the American Farm Bureau Federation, among others.

The plaintiffs argue federal agencies have improperly redefined Waters of the United States to expand Clean Water Act jurisdiction over time and that the Clean Water Rule harms them by expanding the number of waters subject to federal regulation. The rule erodes states’ authorities over their own waters, increasing the states’ burdens and diminishing their abilities to administer their own programs, plaintiffs argue.

Plaintiffs characterize the Clean Water Rule’s definition of Waters of the United States as “capricious and arbitrary.”

Meanwhile, two national environmental organizations — the National Resources Defense Council and the National Wildlife Federation — have signed on as intervenor defendants in the case alongside the Environmental Protection Agency and the U.S. Army Corps of Engineers. Defendants are urging Judge George C. Hanks Jr., who’s presiding over the case, to uphold the Clean Water Rule and the expanded protections it affords for wetlands, including those on the Texas coastal prairie.

THE FACE OF THE WETLANDS

Locally, Bayou City Waterkeeper, a Houston-based group with a history of monitoring Clean Water Act violations in the Galveston Bay area, has filed a brief in support of the Clean Water Rule, the defendants and the intervenor defendants.

Attorney Kristen Schlemmer wrote the amicus brief filed in November. When the two national environmental organizations joined the lawsuit, Bayou City Waterkeeper didn’t see the need to completely duplicate their efforts but wanted to offer a close-up view of area wetlands to the court, Schlemmer said.

“Practically speaking, this is litigation that Bayou City Waterkeeper is obviously very interested in and wants an environmental voice in court,” Schlemmer said. “We saw a small gap and wanted to talk more about the factual aspects of the Clean Water Rule and the protections it offers for Texas coastal prairies.

“We wanted to put a face to the coastal wetlands for the court.”

The brief holds up the regional importance of Texas coastal prairie wetlands to surrounding communities and to water quality of navigable waters, most notably Galveston Bay. It also argues there has been a history of under enforcement of the Clean Water Act in the Galveston-Houston area as a result of confusion over its application to Texas coastal prairie wetlands.

Schlemmer argues in the brief that the Texas coastal prairies provision of the 2015 Clean Water Rule is well-grounded in scientific research that establishes their connectivity to navigable waters and confirms their influence on the biological, physical and chemical integrity of navigable waters by filtering out runoff and providing floodwater storage capacity by capturing substantial amounts of rainfall.

If the defendants prevail in court, it would be a big deal, Schlemmer said, but actions by the Trump administration have further muddied the legal waters.

“It’s either very significant or not very significant at all,” she said.

“If the court in Galveston were to say the Clean Water Rule is invalid, Texas coastal wetlands oversight would default to what the corps was doing already, and they’ve been very conservative up to now in what they cover.”

If the court were to uphold the Clean Water Rule, that could potentially expand federally mandated protection for wetlands, a very big deal.

But at the same time these lawsuits, dating back to 2015, are finally about to be heard, the Trump administration has taken action of its own, further tying up the courts.

Trump’s appointed head of the Environmental Protection Agency, Scott Pruitt, had been a key player in several lawsuits against the agency before taking the helm, including cases challenging the Clean Water Rule. In February 2017, Trump signed an executive order, the Presidential Executive Order on Restoring the Rule of Law, Federalism and Economic Growth by Reviewing the Waters of the United States Rule, directing the agency to review the Clean Water Rule for conflicts with his economic growth agenda.

Pruitt carried out that task before resigning from his office in the midst of a flood of ethics controversies.

In January 2018, the agency formally suspended the 2015 rule and announced plans to issue its own version later in the year. The suspension gave rise to lawsuits across the country, suing the administration for not enforcing pollution controls.

“Everything the Trump administration Environmental Protection Agency has done to repeal the Clean Water Rule keeps hitting road blocks because they’re moving too quickly and not following administrative procedure,” Schlemmer said.

The new agency proposal will appear next week in the Federal Register where it will be open for public comment, acting Environmental Protection Agency chief Andrew Wheeler announced on Friday.

“If they succeed, then we’ll see a bunch of litigation and court actions while the court actions already in place will continue moving forward,” Schlemmer said. “It’s kind of an administrative mess.”

All the sound and fury in the courts, in the end, will either expand or contract protection of prairie pothole wetlands in Galveston County along with other freshwater wetlands, coastal marshes and saltwater wetlands on barrier islands like Galveston or, in the end, it might not change anything.

Until then, the wetlands will keep doing their work in quiet obscurity.


News
Traffic fatalities dip slightly after years of increases

League City Patrol Officer Matthew Strachan is busier than he used to be, he said.

Ever since crews at the behest of the Texas Department of Transportation began work on a massive Interstate 45 expansion project, the part of the highway that courses through the center of League City has become the site of an increasing number of traffic accidents, Strachan said.

“Especially between state Highway 96 and the city limits going northbound,” he said. “The traffic jam caused by construction has increased accidents tenfold, I’d guess.”

League City isn’t alone. The number of traffic fatalities on Texas roads had increased more than 34 percent since 2010, according to Texas Department of Transportation data.

Most recently, a 27-year-old man died in a three-car accident on FM 517 in Dickinson early Friday morning.

Experts say a variety of factors, including an increasing state population, high speed limits and fewer officers on the road, are to blame for the upward trend.

“There are more people on the roadways,” said Mark Hanna, spokesman for the Insurance Council of Texas. “And then speeding and people not obeying traffic laws remain a problem. Then you put distracted driving into the mix — it all adds up to a deadly combination.”

More than 3,790 people died in traffic accidents in the state in 2016, according to the Texas Department of Transportation.

Locally, the number of fatal crashes in Galveston County has also been trending upward. The number of fatal crashes in 2013 was 27, but that number increased to 41 in both 2015 and 2016, according to the Texas Department of Transportation. In 2018, they dipped slightly to 38 in the county, according to the department.

For Strachan and other traffic officers in League City, that change is most noticeable on the interstate, he said.

“The majority of our accidents happen on the freeway,” he said. “There’s no other major intersection that immediately comes to mind as a major accident magnet. There’s no other place where I can count on there’s going to be a wreck here.”

Meanwhile, on Interstate 45, Strachan has worked several major accidents, some of which involved as many as four or five cars, he said.

And, because of the construction, it’s tough to enforce the law on drivers who speed through the area, Strachan said.

“There are no shoulders right now and only three lanes,” Strachan said. “The only way to really enforce things right now is to drive from Dickinson to Webster and then get off, make a U-turn, and go south. It’s very unsafe and, even if you do see an infraction, where’s a safe area to pull someone over?”

And the construction along Interstate 45 shows no signs of stopping soon. Crews will begin demolishing the FM 646 bridge at 9 p.m. March 1 as part of the ongoing project to expand the highway from six lanes up to eight lanes of traffic in Galveston County, said Danny Perez, spokesman for the Texas Department of Transportation.

Crews are taking down the overpass at FM 646 over Interstate 45 with plans to eventually replace it with a street running under the interstate, officials said.

This traffic project is part of a $120 million project to widen the interstate between FM 517 and FM 518, Perez said. The plan to widen Interstate 45 through Galveston County is divided into several different phases, officials said.

Despite the setbacks, state officials have some reason to be optimistic, because the number of traffic fatalities did decline slightly in 2018, Hanna said.

“It may be that we are seeing the effects of an anti-texting law that was put in place,” he said.

The state legislature in 2017 passes house Bill 62, which made it illegal for drivers to text while driving, Hanna said. That law went into effect Sept. 1, 2017.

The number of traffic fatalities in Texas declined from more than 3,790 in 2017 to about 3,567 in 2018, a 4 percent decrease, officials said.

“We only hope that’s begun to pay off,” Hanna said.


News
Major paving and drainage work planned for Broadway

GALVESTON

A major project that’s expected to begin this fall will replace aging asphalt and improve drainage on Broadway.

During the project, estimated at $9 million, crews will mill down the road from 59th Street to Seawall Boulevard and apply fresh asphalt, Texas Department of Transportation spokesman Danny Perez said.

The mill and overlay work will lower the road by 4 inches, Perez said.

It’s expected to take eight months, with an estimated May or June 2020 completion date, he said.

“We will not be able to lay asphalt until March,” Perez said. “It will take three months for asphalt, striping and signage.”

The project marks the first time since 2010 this section of Broadway will undergo such significant work, though the state department has continued to make repairs, Perez said.

In addition to laying 3.8 miles of new roadway, the project seeks to solve some drainage issues in the area.

The city’s not paying anything for the new asphalt but will foot the $187,600 bill for a drainage study, city Assistant City Manager Brandon Cook said.

The state transportation department didn’t originally plan to include significant drainage work, but agreed to include it if the city paid for the necessary study, Cook said.

The drainage system under Broadway consists of shallow box culverts, many of which have collapsed and need to be upgraded, Cook said.

“They’re just not working,” Cook said.

Part of the drainage trouble is because the roadway has gotten thick, Cook said.

“In the past, I don’t think there has been any milling work, it’s just overlay over overlay,” Cook said.

Shaving Broadway down by 4 inches should help drain water to the island’s bay side, Cook said.

“Especially now, during a lot of major rain events that we had in the last couple years it really just acted as a dam where it was pooling water on the south side of Broadway,” Cook said.

The project will replace 16 old drainage blocks with new culverts, according to project documents.

The city’s $187,600 cost also includes some study and design work for a drainage crossing at 48th Street, according to project documents.

The drainage work on Broadway comes as the city’s placing more emphasis on updating Galveston’s aging drainage infrastructure, Cook said.

Last year was the fourth in a row that Galveston was wetter than normal, according to National Weather Service data.

Weather monitors recorded 61.2 inches of rain in 2018, 10 inches more than the 30-year average of 50.76 inches, according to national service data.

Federal money will pay for 80 percent of the Broadway project, and another 20 percent will come from a state fund that’s used for preventative maintenance, Perez said.