Tuesday, August 23, 2011

Stupid River Tricks

If the New Braunfels city council is meeting, rest assured they're going to pass some damn fool stupid ordinance regarding the Comal River in the face of massive popular opposition. It'd be funny if it weren't so predictable. One might think they'd learned their lesson five years ago, when council member Ken Valentine led a block in voting to severely restrict the size and types of coolers allowed on the river. Ostensibly, this was to curb rowdy, drunken behavior on the river, but in fact was a thinly veiled move to make floating the Comal so onerous and hassle-filled that people simply stop doing so. There are many owners of riverfront property who hate that the Comal is a public water way, and would like nothing more than to make it their own private water front. The council passed that cooler ban in 2007, and shortly therafter, Ken Valentine was successfully recalled and the ban overturned.

That whole scenario is playing out once again, as the New Braunfels city council--again, in the face of widespread and popular community opposition--passed an ordinance banning "disposable containers" on the river. Ostensibly (there's that word again), it's supposed to control alcohol consumption on the river, but in reality it's a blanket ban on any drink container, making no differentiation among alcohol, water or soft drink containers. Heck, even a child's juice box is illegal now. It's even been pointed out repeatedly that this ordinance conflicts with an existing state law, but a promised lawsuit by river outfitters and community members wasn't enough to dissuade our runaway council. Naturally, the local paper sides with the good ol' boys and leads the cheering section:
New Braunfels City Council did the right thing Monday night with the passage of a disposable container ban.

And they did it despite incredible pressure, which is difficult to ignore in this still-small town. They faced picketers, threats of lawsuits and recall elections and still did the right thing.
Is there a problem with unruly crowds on the Comal River this year and litter? Yes, but there are several facts that tell me our council never actually wanted to address that problem in a constructive way:
  1. Opponents of the ordinance requested that the city council put it on a November ballot and allow the citizens of New Braunfels to decide. The council refused.
  2. The council members were inundated with letters, emails and testimony against the ordinance as written. As with the previous cooler ban, council members listened politely then voted for the ordinance anyway. This leads me to believe collusion is at work, that the council members decided well in advance what they would vote regardless of public sentiments. In 2007, a committee had been set up to examine the river issues. That committee's recommendations were never presented during the council meetings, and the committee chair disavowed the ensuing ordinance, insisting it flew in the face of their recommendations. Because said recommendations did not support the council's agenda, the report was suppressed. I see the same back room dealing going on once again.
  3. Of the large, unruly crowds, the council members never once in any of the published reports I saw, acknowledge that the severe drought was a direct cause of the problems. The Guadalupe River flow is less than 60 cubic feet per second, and for adequate tubing conditions, river flows need to be more than 200 cfs. The Guadalupe is historically the preferred destination of young adults and a more boisterous crowd, but with river flows so low, forcing tubers to walk significant distances in the dry river, most are opting for the Comal this year. A wet winter and spring would alleviate those conditions, and the crowd problems on the Comal would go away.
  4. A big justification for the ban on disposable containers was based on the "urine theory." Some area divers, purported to be long-time residents, claim to have noticed a new type of algae in the river in recent years. Their claim is that urine from tubers coming into contact with aluminum beer cans tossed into the river is responsible for this new growth. There is, I'm sad to say, absolutely nothing substantive to back this up. It's anecdotal, nothing more.
  5. Volunteer cleanup efforts of the river were effectively ignored.
Now, how is this ordinance going to fail in every spectacular way possible? Well, it will be overturned in court because it attempts to supersede an existing state law, which municipalities can't do:
A 1993 state law prohibits cities from banning disposable containers. It was intended ... to keep recycling and sanitary disposable laws consistent from town to town.
Of course, defending that ordinance in court will cost New Braunfels hundreds of thousands, if not millions, of dollars. How's that for fiscally conservative stewardship of our tax dollars? There will likely be recall elections as well. Mayor Gale Pospisil didn't win her election a year ago by a very large margin. I voted for her, I'm sorry to say. It wouldn't surprise me if her tenure is a very short one, since she seems to be the ringleader in this disaster. And this ban only applies to "disposable" containers. I would not be surprised if we see an influx of kegs, pitchers and other outrageous containers hitting the river to circumvent the wrong-headed ordinance. At which point the council will once again push through an equally divisive ordinance designed to plug the holes in the preceding ill-conceived effort, resulting in more lawsuits. But what upsets me the most is the seizing of an event--in this case, the severe drought--to drive a private agenda. This disposable container ban does not address the problem, it is merely a knee-jerk reaction that is full of sound and fury but ultimately doing nothing to preserve river quality. Does the New Braunfels city council really want to make a difference and preserve the Comal River as an environmentally protected, family-friendly recreation venue? Here are my suggestions:
  1. Go to the legislature. Only the state can regulate alcohol on public waterways, as New Braunfels found out in 2000, when yet another wrongheaded city ordinance was struck down in court. So get the state on your side. Lobby State Senator Jeff Wentworth and Rep. Doug Miller on this between now and 2013 when the lege reconvenes. The Comal River is only 2.5 miles long, and wholly contained within the New Braunfels city limits. A suitably narrow law (or constitutional amendment) restricting alcohol consumption on that limited stretch is not such a high mountain to climb when you consider constitutional amendments granting permission to specific counties to abolish the position of constable regularly appear on the ballot. This approach would require dedication, communication and commitment by our city council. Which, I suppose, is the reason why it has never been tried (As a side note, I never drink alcohol on the river. There's not a quicker way to get dehydrated on a blisteringly hot day, and I've no desire to drown).
  2. If they really care about the river, get with the Texas River Systems Institute up the road in San Marcos to develop a long-term use and management plan for the Comal. Is there really new algae created by the unholy union of urine and aluminum taking over the river? These folks can tell you, and give you evidence to back it up. But issues with the Comal are not limited to too many rowdy tubers in 2011. There is credible evidence that Texas is in the opening decades of a 70-year mega-drought, and if New Braunfels has any vision at all, it needs to prepare for the consequences. Comal Springs, as large as they are, ran dry in 1956--a fact that very few New Braunfels residents seem aware of. String together a couple more years like 2011--which has seen Stage 1 and Stage 2 water use restrictions almost the duration of the year locally, with some West Texas towns running out of water entirely--and we'd be facing a major crisis where "disposable containers" on the river would be the least of our worries.
Instead of a knee-jerk patchwork of ineffective city ordinances driven by momentary crises, New Braunfels needs to get serious and develop a long-term river management plan that is backed by credible science and takes into account the pertinent economic, recreational and environmental issues involved. Unfortunately, that approach is probably far too reasonable and visionary for our current city council, which will likely busy itself in the coming year crafting an ordinance banning floatation devices weighing less than 538 pounds. Sounds crazy? Yeah, but I wouldn't put it past them.

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  1. nice, would love more info on the 1993 law. thank you

  2. I don't have any specifics on that law, only the reference from the linked article. Here's a link to more recent developments: http://jlbgibberish.blogspot.com/2011/11/can-ban-and-other-stuffs.html
    Also, the city is making noise now about banning privately-owned floatation devices (meaning you can't use your own tube) and forcing people to rent through an outfitter. Once again, this fails all kinds of smell tests.