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March 1, 2007 “Miscommunicating” By Jack D. McNamara I took a richly deserved vacation last week just as the weekly newspapers were retailing the latest cavorting of our Brewster County governors, ”Water district bills meet opposition from local officials” in the Big Bend Sentinel by Sterry Butcher. The story concerns HB 545 and HB 546 currently pending in the Texas Legislature. A long weekend in New Orleans with old friends of 50 years does much to clear the taste of the Brewster County Courthouse Gang from the taste buds. This is especially true in New Orleans because the character of that beautiful and queenly city is immediately verifiable everywhere in the food. The best part of the city (for me) is the stately march of 19th century houses along St. Charles Avenue. They are also mostly intact. The trolley is running on Canal Street and repairs are advancing on St. Charles. In the rest of the city chaos reigns. The failures of the federal government in the Katrina hurricane are being matched incompetence for incompetence by state and local officials. They have $7.5 billion dollars in relief and reconstruction money they can’t spend because the feds gave it to a crony contractor and the state officials cannot get organized. Sound familiar? Of course that is familiar to Louisianans because they are justly famed in the 50 states for a government system more corrupt than Louisiana’s more junior states. The famous family Long — Huey and Earl — come to mind. A former governor, Edwin Edwards, is now in federal prison. William Jefferson, a U.S. Congressman from New Orleans, was reelected this year even though under investigation for a famous $90,000 in cash found by federal law enforcement in his freezer. Familiarity with the Louisiana political tradition tends to make one more tolerant. No matter how bad it may be there is always time for a good meal, drinks and music. Governor Edwards’ campaign slogan was “Rollez les bon temps!” (Let the good times roll.) So it is with considerable reluctance that I begin to check out the fate of HB 545 and HB 546. Nothing has changed at the Legislature. The bills still are pending in the House Natural Resources Committee along with more than 40 other bills. Only one bill, HB 3 by committee chairman Robert Puente, Democrat of San Antonio, has progressed out of committee. HB 3 is a big bill, one that seeks to codify and regulate rivers, streams and estuaries in Texas. The bill has cosponsors in the House and Senate and passed unanimously in the House Committee. It has been placed on the “Emergency Calendar,” meaning the legislation is probably going to get a vote this year. Very little of the committee bill has anything to do with our situation here. Nor do the other bills appear to have much relevance to us here in Brewster County. All, however, tend to codify, or otherwise amend some standing custom somewhere in Texas. HB 1699, by Harvey Hilderbran, Republican of Kerrville, addresses the power of an underground water district “to regulate the use of groundwater so as to prevent waste.” Down in the bill it states, “A district may adopt and enforce rules that define waste to include activities or uses in addition to those included in the definition of waste provided by Section 36.001(8).” Now that is just the sort of thing which takes us another incremental step away from our Texas “Rule of Capture” tradition of private property rights in the ownership and use of water. Many of these bills will die richly deserved legislative deaths. Many are self-interested bills intended to profit someone. Many will draw the attentions of lobbyists who will counter with their offers. But some bills will make it through the gauntlet and become law here on the Last Frontier. That is they will be laws until the courts or some regulatory agency says they are not good laws. All the water legislation is premised on dire warnings that “Texas is growing” and we will face shortages in coming years. The numbers to support these predictions come from bureaucracies created to compile and study such things, such as the Texas Water Development Board (TWDB). All of this frenzied political activity creates no new water; but it does create new jobs for lawyers. Which brings us back to our own little skirmish in the Great Water War, HB 545 and HB 546. The principal reason for last week’s flurry was the failure of the Chairman of the Brewster County Groundwater Conservation District, Tom Beard, to inform local municipal officials that he was taking control of their groundwater. We know that because he told us he was responsible on February 20 at the Alpine City Council meeting. He and State Representative Pete P. Gallego miscommunicated, Beard said. Tom Beard, accompanied by his wife, County Judge Val Clark Beard and members of the district groundwater board, discussed the bills for some time. One significant aspect of this controversy makes it different from others. For most purposes political discussions in Brewster County are determined in the courthouse gang’s favor by the fact that they are the lawyers currently in power in the courthouse. The courthouse gang wins an argument by indicting their opposition, especially if that opposition is an uppity Alpine City Council. But the crux of the matter here is the Legislature. The section of the Water Code Mr. Beard seeks to delete is what he called the “Midland loophole.” It was inserted into the code years ago to “grandfather” Midland’s water supply from the effect of the legislation creating the groundwater districts, according to Beard. Brewster County officials are attacking a law created by the current Texas Speaker of the House? In rather dismissive tones Beard said our Big Bend counties (and a dozen others) were not intended to be given the exemption which exists in the law for Midland. Has anyone spoken with Speaker Craddick? Was that section (36.121) only for Midland? Such an action might well be in the tradition of the Texas Legislature’s cronyism; but the section might also have been intended to secure the water rights of small municipalities against the big bureaucracies of the Texas Water Code. Whatever the result of HB 545 and HB 546 this “miscommunication” stimulated an interesting debate. That debate will continue, here and in Austin. We are particularly interested in which Alpine City Council members will vote to endorse the bill and thereby transfer the elected power of the city council to an unelected, appointed board chaired by the county judge’s husband. Louisiana, you got nuthin’ on us. • (Also published by the Big Bend Sentinel of Marfa, Texas March 1, 2007.)
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