Wetlands

Wetlands

Sandhill cranes feed at the Coastal Heritage Preserve along Settegast Road in Galveston at dusk on Wednesday, Jan. 23, 2019.

Across Galveston County, local governments heavily involved in regulating building and zoning generally defer wetlands protection to the U.S. Army Corps of Engineers and its permitting responsibilities under the Clean Water Act.

That’s problematic, said Jackie Cole, a Galveston city councilwoman and longtime environmentalist.

“Our leaving decisions about wetlands to the Corps of Engineers is a problem because different corps districts around the country view wetlands differently,” Cole said.

“Here, they are more loosely protected and the interests of commerce are often weighed more heavily than the value of the wetlands.”

The state of Texas, which supports numerous departments charged with studying, analyzing and tracking the health of coastal marshlands, prairie wetland complexes and the waters of Galveston Bay, also doesn’t regulate wetlands protection except through the corps and the U.S. Environmental Protection Agency.

“The state has always had the capability to identify wetlands resources, to enact a law to put restrictions on resources, and the state of Texas has not done that,” said Kenny Jaynes, chief of the corps’ compliance branch in the Galveston district.

The Texas Water Code includes salt marshes and prairie potholes, wetlands embedded in coastal prairie, in its definition of wetlands for purposes of water quality certification. At the same time, it states that “if the state definition conflicts with the federal definition in any manner, the federal definition prevails.”

The corps in Galveston has long excluded freshwater wetlands in prairie pothole complexes from its jurisdiction. Now, existing federal rules adopted under the Obama administration are being challenged in federal court and are on indefinite hold. Those rules would require the corps’ Galveston District to protect coastal prairie wetlands.

How, then, do citizens and businesses invested in the future of wetlands ensure protection of these often-overlooked parts of the local landscape that provide essential services like filtering impurities from water and providing flood protection?

Many past attempts have been made by coalitions of private citizens, in partnership with local governments, to enter ordinances protecting wetlands into local code books.

“I tried to get a wetlands ordinance for years and years and years,” Cole said.

But the voices of those who see local ordinances protecting wetlands as hindrances to their livelihood or impediments to economic development have prevailed whenever those protections came close to becoming a reality.

A PAPER MODEL

In Seabrook, a small Harris County community on Galveston Bay, residents in 1999 spearheaded an ordinance aimed at protecting area wetlands.

The Seabrook Wetland Conservation Plan was funded by a grant from the U.S. Environmental Protection Agency under the Clean Water Act and was coordinated through the Texas Natural Resource Conservation Commission and the Galveston Bay Estuary Program. The Houston-Galveston Area Council prepared the plan, working with the city of Seabrook, representatives of other state and federal agencies, environmental organizations and concerned citizens.

The plan was one of the first in the state developed using a model conservation process outlined in a Texas General Land Office publication, and it was held up as a model for other bay-area cities to develop plans of their own.

The city’s wetlands protection ordinance hasn’t served its intended purposes, however, some involved in it said.

“Sadly, there is no mechanism for enforcement,” said David Popken, a member of the wetlands committee. “No penalties have ever been put in place.

“The plan looks good, but is essentially useless, as anyone can ignore the law with impunity, and we’ve had many violations over the years.”

The city disbanded a wetlands board because members “wanted to add some teeth to the ordinance,” Popken said.

‘NOT INVOLVED IN WETLANDS’

It’s not that local governments don’t have tools to conserve wetlands. They have zoning laws and building codes. They regulate planning for subdivisions, can regulate water pollution and prohibit nuisances that spoil any area under their jurisdiction. They can reward residents through mutually beneficial partnerships to protect endangered lands.

But that requires public support and a government committed to environmental protection, conservationists said.

“Municipalities and counties can push back on development plans,” said Lisa Gonzalez of the Houston Advanced Research Center.

“I would love to see municipalities valuing wetlands for the flood control, pollution control and habitat functions they provide,” Gonzalez said. “Governments can say to developers, ‘Build that parking lot on the other side of that building,’ or ‘Change the drainage.’”

Some municipalities in the Houston-Galveston region consider wetlands when approving development plats, but most do not, according to the research center. No municipality in Galveston County has a committee, ad hoc or otherwise, dedicated to wetlands protection.

Galveston, like most other cities, leaves wetlands to the federal government.

“The city is not involved in wetlands,” said Catherine Gorman, assistant director of planning and development for the city of Galveston.

The city defers to the Army Corps, “the permitting agency,” for anything involving wetlands and requires that a copy of the corps permit be submitted with any required development applications, Gorman said.

“The city has one zoning category — the Height and Density Development Zone — which requires a 25-foot buffer between wetlands and construction,” Gorman said. “But that’s the only regulation we have regarding wetlands.”

If the corps permits building on wetlands, that buffer disappears.

And when the corps requires mitigation by a developer, displaced wetlands can be replaced someplace other than the island.

Residents have asked the city to get involved in wetlands protection at least twice in the past decade — when the Galveston Island Long-Term Recovery Plan was devised immediately after Hurricane Ike in 2008, and before Ike in 2007 when the city partnered with the Trust for Public Land and numerous others to create the West Galveston Island Greenprint for Growth.

PRESERVING CHARACTER

The greenprint was designed to meet two objectives in the City of Galveston Comprehensive Plan — to develop the West End with a focus on the environment and aesthetics and “to preserve and protect Galveston Island’s sensitive natural resources by facilitating creation of a network of permanently protected open space.”

One objective was to preserve the island’s character, said Linda Shead, a conservation consultant who, at that time, worked for the Trust for Public Land.

“The concept of greenprinting is to develop a map and agreed upon goals that can then guide work done to accomplish it,” Shead said.

“The question was how do you quantify or map the island’s local character, how do you determine what that means,” Shead said.

A large group of city personnel and local residents met numerous times and finally agreed that what defined the island’s local character was driving on the West End and being able to see the land stretching out from the bay to the beach, and in the winter, seeing sandhill cranes grazing on that land.

“While there’s no structure for implementation, what I found is that having that agreement among a diverse range of people, people who might not normally sit around a table with each other, and having an understanding of what people agree on does end up guiding conservation efforts,” Shead said.

Greenprinting influenced nonprofit Artist Boat’s efforts to preserve swaths of West End land from beach to bay, Shead said.

The top five goals greenprinting established were to protect habitat, protect shoreline, provide drainage and flood management, preserve the island’s character and provide access for public recreation. Rolled into those goals was significant protection of island wetlands.

At that time, one parcel of important habitat was protected on the West End, in Galveston Island State Park, and much of the remaining valuable habitat was undeveloped and unprotected. The greenprint offered strategies for protecting as many of those remaining parcels as possible, while acknowledging the need far exceeded the city of Galveston’s resources.

“If Galveston is to maintain the community’s character by protecting its most cherished lands, assertive implementation of a conservation vision is essential,” the greenprint plan concluded. That meant uniting people across the island to share the plan’s vision.

West End property values would likely hold or increase as coastal hazard concerns were reduced, recreational opportunities expanded and natural amenities were preserved, the plan said.

Then came Hurricane Ike and a period of intense concern about how the island would rebuild and what its future would look like from a vulnerable new starting point.

AFTER IKE

Some of the values identified through greenprinting, especially preserving the island’s natural features, survived after Ike.

The Galveston Island Long-Term Recovery Plan, an initiative led by Betty Massey after the hurricane, was similar to the greenprint in its priorities “to recover Galveston to a less vulnerable, more resilient place — economically, socially, physically and environmentally,” according to its vision statement.

The plan, devised by more than 300 residents, called for scientifically based policies for environmentally sustainable development. It called for preservation and conservation of sustainable natural resources, including wetlands.

It was presented to city council as a menu of projects and was intended as a guide for funding and resource allocation decisions as Galveston recovered from Hurricane Ike.

A memo from Massey went out to committee members in August 2009 outlining all that had happened during the three months prior.

One bullet point announced the city had allocated federal Community Development Block Grant money to complete the Comprehensive Plan and overhaul land-use and zoning ordinances addressing many of the issues raised in environmental projects.

“With Artist Boat as the lead agency in a request for hazard mitigation funds, Galveston has the opportunity to protect 300 acres of precious open space on the West End,” the memo said.

Eventually, Artist Boat secured federal and private money to purchase and preserve 669 acres of West End marsh and coastal prairie without city assistance or funding.

The committee also proposed a nature preserve on 685 city-owned acres at the East End Lagoon. Planning for the project, led by the Galveston Park Board of Trustees, is still underway.

The long-term recovery committee’s environmental group in September 2009 proposed a wetlands ordinance with regulations stricter than those enforced by the U.S. Army Corps of Engineers.

The committee had identified preserving wetlands as a way to naturally buffer storm surge and reduce flooding. The ordinance required building setbacks near wetlands and developers to create 5 new acres of wetlands on the island for every acre destroyed by construction. That included wetlands filled in to create building sites and those dug up to make canals connecting with Galveston Bay.

Developers protested, saying the new regulations would halt West End growth and hamper improvements throughout the city. The council eventually sent the ordinance to the planning commission, but allowed developers to participate in reviews before the regulations were passed.

The 25-foot buffer zone apparently survived, as did the city’s default position of deferring to federal regulations where wetlands protection and mitigation were concerned.

No city of Galveston committees are working on wetlands protections, spokeswoman Marissa Barnett said.

“There has not been much discussion about wetlands recently,” Barnett said. “This is an area that largely is in the realm of nonprofits and federal agencies that have more resources in that area.”

Cole sees the problem as a conflict embedded in traditional Texas values.

“Often in the state of Texas, private property rights are very important to people, and where that comes into conflict with environmental protection is when it impinges on the common good of the people,” Cole said.

“Frequently, private property rights have trumped the common good and we’ve lost common space because of this. But as we lose more and more of it, we begin to realize how important those common things are that we share. Then we begin to swing back into preservation mode.”

Kathryn Eastburn: 409-683-5257; kathryn.eastburn@galvnews.com.

(3) comments

Jarvis Buckley

Feds need to be the ones that enforce wetland violations. Not folks that don't understand what wetlands really are. HOA's has good people on their boards & also has egotistical power hungry people, that have know business setting local guidelines for
wetlands in WestEnd subdivision. That causes friction & conflict . Galveston should be about enjoyment & relaxation with your friends. Folks that know zero about wetlands shouldn't have any rights regarding wetlands. I agree with the author of this article. Wetlands should be protected by the Feds . Not individual HOA 's that doesn't have a clue as to what wetland are. They are just more interested in throwing their weight around & harassment that preserving wetlands. Like telling you what flags you can't fly & what color you can paint your house & disabled
& elderly folks that can put a lift up to their porch because the board deemed it unattractive. Some of the WestEnd HOA's exceed their authority & have no idea what wetlands are. They think it's something they can discharge their pool water into. Fed control best way to preserve wetlands I agree.

George Croix

Simple fact is, if you want and take 'federal money' you must expect at least some measure of 'federal control'.....

Danny Moran

I have been following this well intended series of articles. If those of you reading the articles really want to know what the regulations are look up the following:
Department of Defense 33 CFR Part 325 and 332
Environmental Protection Agency 40 CFR Part 230
U.S. Army Corps of Engineers Regulatory Guidance Letter No. 19-01
Regional Supplements to Corps Delineation Manual - USACE - Atlantic and Gulf Coast Supplement
The regulatory documents listed above control all that is wetlands.

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