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July 2001 BBRSC Newsletter



POTLUCK SOCIAL SCHEDULED: REMINDER

Members and guests, please reserve Saturday, August 11th, for a Big Bend Regional Sierra Club potluck social from 5-9 p.m. at Kokernot Lodge in Alpine. This will be a relaxed evening to just get to know each other and enjoy summer in the Big Bend region. We will supply plates, flatware, napkins, etc. ( Donated by several members. A member is donating beer and soft drinks.) You bring a dish with serving implement and folding chairs and we will be set. While you may decide at the last minute to attend, some sort of advance count would be useful. If you can, please let Marilyn Brady (915) 837-3210 know your plans. She can also provide more directions if you need help. Kokernot Lodge is on the west side of the Loop road as if goes on the east side of Alpine. It has a marked entrance a little before the turn to the west. You enter the loop road by Sul Ross State University and proceed past the Alpine Country Club.

DON DOWDEY'S COLUMN

Volunteers Make the BBRSC Run


Like any civic organization, the BBRSC is dependent on people to turn its ideas into action. Members serve on the Executive Committee, on the issue committees (Air Quality, Radioactive Waste, and Water), and the Membership Committee. Folks help out with Hospitality, greeting people at meetings, and providing cookies and punch afterwards. The newsletter, a major communication tool for the club, is put out by a group of volunteers who write it, format it, get it printed, and address and mail it. Our web site, http://texas.sierraclub.org/bigbend, was put together and maintained by a volunteer. And of course, many of our members communicate with legislators as we attempt to influence their actions on issues important to us.

Without the efforts of these volunteers, and others I may have neglected to mention, the BBRSC would not have grown to 116 members and become recognized as a leading civic organization in the Trans-Pecos. My gratitude to all of them is profound, and I'm sure other members share it.

But organizations can continue to thrive only with fresh infusions of volunteers. In the coming non-legislative year, I hope to encourage others to consider giving some of their time to the Big Bend Regional Sierra Club. Specific things that we could use help with now include someone to coordinate the calendar sales, and someone with computer skills to help with formatting the newsletter. Elections to the Executive Committee are coming up, and I hope you will consider serving on it. Any of the issue committees could use your help. In addition, other committees are possible. Dealing with the La Entrada trucks fits in with several National Sierra Club issues, including border issues, diesel pollution, and perhaps urban sprawl, if bypasses are discussed. Low-level training flights and Guadalupe National Park issues have also been suggested. There is plenty to do -- are you interested in doing it?

It would be nice to increase our efforts toward developing members. Suggestions have included email lists, a phone tree, and special efforts such as packets for new folks. Right now, our Outings program is in limbo. For many Sierra Club groups, outings serve as the major activity. They can build camaraderie with both members and non-members, while giving an opportunity to enjoy, explore, and learn about the areas we care about. Anyone interested in being Outings chair? The national organization would give you lots of help.

What about programs and publicity? We could use help for both regular monthly programs and special events like the social this month, the highway cleanup, and the EPA presentation tentatively scheduled for the fall.

If any of these opportunities appeal to you, give me a call at 837-3210, or send an email to: ddowdey@wildblue.net. You don't have to agree to chair a committee. Maybe you could be part of a core group talking about possibilities. And don't be surprised if you get asked to help out (or don't be afraid to say "no" if you need to). While the BBRSC has accomplished a lot, it takes the volunteer efforts of members to keep us running. If you can help, please do!

IN DEPTH ACCOUNT OF RADIOACTIVE WASTE LEGISLATION

by Erin Rogers, Lone Star Chapter Staff

RADIOACTIVE WASTE MANAGEMENT

Background
Radioactive waste remains deadly for hundreds of thousands of years. The debate about what to do with the waste in Texas has raged on for not quite as many years, but has driven citizen participation in the issue for at least 20 years. During that time, the Sierra Club and other citizen groups have again and again forced the nuclear industry and state officials away from cheap and easy solutions such as dumping the waste in underground trenches in the backyards of low income, Mexican American communities. The 77th legislative session was filled with more drama and controversy, but in the end no radioactive waste legislation was passed and no nuclear waste disposal facility will be built in the next 2 years. Citizens walked away with another victory under their belts and momentum to build support for safe and reasonable radioactive waste solutions during the interim.

The showdown over radioactive waste began before the session started, with dueling House and Senate interim studies and dueling waste disposal companies. The House Environmental Regulations Committee study proposed that the state own the license for waste disposal and that assured isolation (above ground management) become an option for dealing with the Texas-Maine-Vermont compact waste. On the other hand, the Senate Natural Resources Committee interim study proposed that a private company be allowed to obtain a radioactive waste management license and be allowed to dispose of nuclear weapons waste from the U.S. Department of Energy (DOE). While compact waste from Texas, Maine, and Vermont is expected to be approximately 2.7 million cubic feet over the 35-year lifespan of the compact, estimates on the volume for DOE waste reach into the hundreds of millions of cubic feet over the next ten years.

Similarly, two radioactive waste disposal companies were vying for business in Texas. Envirocare, with a site in Ward County, was lobbying for a state-owned license and the use of assured isolation. Waste Control Specialists, with a site in Andrews County, was lobbying for below-ground dumping and privatization. However, weeks before the legislative session began, Envirocare was forced out of Texas in a lawsuit settlement with Waste Control Specialists. Additional pressure was focused on Texas by the new Bush administration's energy policy, which advocates the creation of a whole new generation of nuclear power plants IF a cheap disposal option for existing waste and dismantled plants is found and the DOE's court-ordered mandate to clean up 50 years of cold war radioactive messes at over 70 sites throughout the US.

Tension was high when the session began in January. The Sierra Club, along with the West-Texas-based Texas Radioactive Waste Defense Coalition agreed on nine principles for radioactive waste management, which were turned into legislation and filed by Rep. Lon Burnam. Sierra Club and others prepared to fight the mammoth influence of the lobby team of not only Waste Control Specialists (which had contributed over $600,000 to state officials since 1997), but also of the nuclear utility giants and other pro-nuclear PR groups. Since Waste Control Specialists opened a site in 1995, the company has lost $77 million. By passing a bill that would allow it to break into the DOE waste clean-up market, Waste Control hoped to turn its losses into billions in profit.

Senate Committee Action
Senator Duncan (R-Lubbock) introduced SB 1541 only hours before the filing deadline in March. The 100-page bill was kept a secret from all but a few key legislators and industry lobbyists until it was filed. The bill allowed private companies to be licensed to import and dispose of massive amounts of radioactive waste at up to three separate disposal facilities, while transferring ownership of and liability for the waste to the state taxpayers. Senator Duncan invited the Sierra Club, along with several industry groups to testify at the first Senate Natural Resources Committee hearing on the bill. After many meetings with Senator Duncan, grassroots pressure, and media publicity, Senator Duncan re-wrote the bill and removed many of the worst provisions. The new version of the bill attempted to limit the amount of waste imported to Texas and to bar the importation of DOE waste. The number of disposal facilities was reduced from three to one.

Senator Bivins then "hijacked" Duncan's bill by getting enough votes in a Senate Natural Resources Committee meeting to add a 16-page amendment restoring many of the provisions Senator Duncan had deleted. Senators Brown, Duncan, and Lucio voted for the amendment and Senator Duncan voted against it. Other members of the committee were not present. The Bivins amendment allowed the creation of two private dumps-one for compact waste and one for virtually unlimited amounts of DOE waste, including a new category called "mixed waste:" radioactive waste mixed with hazardous chemicals. The amendment was tailor-made for (if not written by) Waste Control Specialists.

Senate Floor Action
Sierra Club and other organizations and individuals from across the state worked hard to convince 10 Senators to block the bill when it came to the Senate floor. Because Senator Bivins and Waste Control Specialists had convinced more than a majority of the Senators to vote for the bill, Sierra Club and others attempted to take advantage of Senate rules that require a two-thirds majority of the Senate to bring any bill to the floor. This rule creates a situation in which 10 Senators can block a bill.

Everyone who worked so hard to line up the 10 votes was bitterly disappointed when it reached the Senate floor on May 2 and only nine Senators voted to block the bill. Senator Shapleigh worked very hard to garner support for his amendment to strip out the Bivins amendment. Senators Shapleigh, Duncan, and Truan all spoke out in favor of stripping the Bivins amendment on the Senate floor. Unfortunately, Senator Shapleigh's attempt to exclude the DOE waste failed in a 16 to 13 vote. The bill passed by a vote of 19 to 10.

Editorial opposition to the bill poured forth after the Senate vote, with the Austin American Statesman, the Waco Tribune-Herald, the Dallas Morning News, the Alpine Observer, and the El Paso Times all strongly denouncing the bill. The Houston Chronicle ran a guest editorial against the bill.

House Committee Action
On April 3, the House Environmental regulations Committee held a hearing on all radioactive waste bills filed in the House. A list of those bills and how they fared can be found at the end of this section. Many citizens from West Texas and Austin testified that afternoon-most of whom were advocating for the slate of bills proposed by the Texas Radioactive Waste Defense Coalition and carried by Rep. Lon Burnam and against HB 3240-the equivalent of Senator Duncan's SB 1541.

The Environmental Regulations Committee did not vote on any of the bills that day. Instead, Chairman Chisum waited until SB 1541 was passed out of the Senate and came over to the House. He then re-wrote the bill, changing several small but significant provisions, including a requirement that the private company actually build a facility for the Texas, Maine, and Vermont' s commercial waste instead of neglecting that less profitable waste stream in favor of the more lucrative imported DOE waste.

As the May 19th deadline for passing bills out of committee loomed closer, Sierra Club and others intensified pressure on the Environmental Regulations Committee members in hopes of lining up a majority of votes to strip off the Bivins amendment. Despite substantial committee support for removing the amendment, the bill was passed out of committee on May 15th with the DOE waste provision intact.

The next day, Sierra Club and others held "No Glow Day" at the Capitol, during which all of the 150 Representatives' offices were visited multiple times by volunteers sporting "Bury the Bill, Not the Waste" T-shirts and delivering glow necklaces and fact sheets.

House Calendars Committee
SB 1541 was sent to the House Calendars Committee on May 19, only one day before the last House Calendar could be printed according to House rules. Sierra Club, Public Citizen, and many other citizens from across the state worked to generate calls and letters to Calendars Committee members. On Sunday, May 20th at 7:00 PM-only 5 hours before the deadline for the very last House Calendar, the Committee voted 5 to 3 against placing the bill on the calendar and therefore killing the bill. Rep. Danburg led the charge against the bill, with Representatives Dutton, McCall, Solis, and Thompson also voting against it. Representatives Brimer, Telford and Walker voted for the bill.

House Floor Action
One last-ditch attempt was made to pass the bill by attaching a crucial element of SB 1541 to another bill as an amendment on the House floor. At 11:30 on May 22, half an hour before the deadline for passing bills, Rep. Ron Wilson offered an amendment to SB 689 by Brown, relating to the definition of hazardous waste. Wilson's amendment to privatize radioactive waste disposal would have opened the floodgates to federal weapons waste. The amendment was withdrawn after Rep. Burnam raised a point of order against it, but it was quickly re-written and offered again. This time, several Representatives gathered at the microphone to "chub" or filibuster the bill until the midnight deadline.

MAY PROGRAM WATER REPORT

At the May 15th local Sierra Club meeting, Eve Trook discussed a meeting held by the Texas Rural Water Conference entitled Water and the Future of West Texas. In addition, she gave a summary of water law. The following account is based on minutes of the meeting prepared by Jim Walker, BBRS secretary.

Conference attendees came from various backgrounds and included Fish and Wildlife people, ranchers, hunters, rural people, urban people, and Susan Combs, Texas Commissioner of Agriculture. The conference proceedings are available at http://www.texascenter.org/water/index.htm . Adobe Acrobat reader, a free download, is needed to read the materials; for a free download, go to http://www.adobe.com/products/acrobat/readstep.html .

Because many Texans have lived in other states prior to settling in Texas, they bring many different experiences of various regional water laws to the discussion. Trook said that if we know and share Texas assumptions of water law, we can work better toward solutions.

In a short history of water law, Trook noted a minor influence of Spanish water law in the Southwest but she emphasized the major impact on Texas of English water law, a legal tradition developed in a region with lots of rain, high water tables, and lots of streams. Riparian rights (water rights along the shores of a stream) were thus important in English law, forming the basis of early colonial water tradition in the U.S. Using a map, Trook showed the dry line, (the 100th meridian) which separates the wet portion (eastern) from the dry portion (western) of our country. In addition she noted the meridian divides Texas in the same way. [It runs from Abilene, near San Angelo, south between Del Rio and Uvalde, ending slightly west of Laredo.]

Trook explained that the doctrine of prior appropriation became important with the development of mining. Problems arose in adjudicating disputes over water use. For example, is agricultural use better than mining use? Recreational use became an issue much later. California and Washington have provisions for esthetic use. Judgments of what is beneficial can change over time; for example, hydropower vs. fish. Requiring a hydropower plant to release water for the benefit of fish or recreation is a "taking"; should there be compensation? by whom? to whom?

Adjudications are going to be increasingly difficult. If we can't weigh benefits, then should we let prices and market forces determine allocations? What if farmers are always outbid by energy companies? What if a state sold water to the highest bidder and then used the proceeds for the benefit of all the people? Over the last two decades, several tribal jurisdictions have sold natural resources to augment their trust funds.

There is no great sense of monetary value of water in rural communities. The Texas population is only 14% rural. Rural Texans need to collaborate with urban areas; urban Texans need to see rural Texas as an investment in wildlands, open space, and high quality of life. Water boards will be created consisting of 5 to 11 regional members, who will make the water use decisions required by a current technology which unlike the English common law, is able to recognize the connections between ground water and surface water.

Under English law, water in a well is considered "still," not flowing. Under the right of capture, well water belongs to the landowner. But prior use determines water rights in some cases. In the Baca Grande Spanish land grant, in the San Luis Valley of Colorado, prior rights under Spanish water grants determine water use. In the San Juan Quadrant of northwestern New Mexico, the Navajos have sovereign rights to ground water, but streams flowing through Navajo lands are subject to prior appropriation. Percolating water, flowing underground but not in a stream channel, is not treated like ground water. Surface water not in a channel can be used if you can somehow impound it. There are complex interactions between ground water and the surface water flowing in streams. In some cases ground water may add to or subtract from the flow of a stream. In other cases, in a dry area, the water table may be so low that there is little or no interaction with a surface stream. Determining the interaction between groundwater and streams may require the use of tracer substances, or seismographic surveys.

Trook illustrated the problems by drawing a diagram showing a 100-acre area divided between 3 owners. Prior Pumper (PP) owns 50 acres with a 400-foot well producing 400 acre-feet of water per year from the water table. PP uses this water to irrigate crops. If the recharge rate in the area is 200 acre-feet per year, and if 200 acre-feet of PP's water seep back down into the aquifer, then the well is at equilibrium, and PP can pump 400 acre-feet of water indefinitely. An adjacent owner (E) owns 25 acres. This owner plans to export 200 to 500 acre-feet per year by a pipeline to a power plant for cooling water. The last owner (O) owns 25 acres adjacent to PP and E. O wants to supply a dude ranch with 200 acre-feet per year, none of which will go back into the aquifer. If E or O drilled 400-foot or deeper wells, such wells would interfere with PP's use and eventually deplete the water table aquifer. Each competing tradition of water law favors a different water user. The rules of prior appropriation would protect to PP's agricultural use; the rule of reasonable use would favor O and PP over E's efforts to export water. The correlative rights of all three owners would need to be protected.

Water regulation is not a matter of "good guys" vs. "bad guys." Nearly everyone in Texas is against the rule of capture because it doesn't take into account reasonable use. In the South Plains case, currently travelling through the Texas appellate courts, the rule of capture will be reviewed judicially. With this case, the courts can begin the piecemeal revision of centuries of traditional water law. Without judicial leadership, the legislature can statutorily change the water laws Texas will observe, or groundwater districts will begin the ad hoc and highly pragmatic supervision of well-defined aquifers. For further information on water law, Trook recommended consulting the four volume Texas Water Code in the Brewster County Law Library located in the Courthouse, the same Texas statutes in the Sul Ross Library, or internet sites with Texas statutes available online.

WATER COMMITTEE REPORT

After Trook's presentation, Liz Hightower spoke on behalf of our Water Committee (Liz Hightower, Chair; Eve Trook; and Brian McMurray). She said that a priority of the committee was to find out what ground water conservation districts could do in this part of Texas, in counties bordering Brewster. The committee sent questionnaires to Presidio, Jeff Davis, and Pecos counties asking for information and interviews. As yet, no questionnaires or permissions for interviews have been received (Terrell County has a different kind of organization, more like a ground water development district).

The committee also sent questionnaires to TNRC and the Texas Water Development Board (CTWDB). TNRCC replied with answers just to the questions asked, no information volunteered. They require well logs, and records of district officers, contact persons, and initial election confirmation results. The response of the TWDB was friendlier, perhaps because they are not a regulatory agency. TNRCC said they do not require regularly scheduled tests for wells supplying water to the public, but TWDB said TNRCC does request tests for such wells. Liz does not yet know the truth here. TWDB encourages sharing of water information between districts. They will have a user-friendly website within about 5 months that will provide information on wells. TWDB volunteered much information, including ways to get your water tested.

Hightower said the bill creating the Brewster County Water Conservation District looks good. Section 5 (c) says the district has the power to limit and impose fees on the transfer of groundwater outside the district. The bill will become effective immediately if it receives sufficient votes; otherwise, providing it passes, it will become effective September 1, 2001. [The bill did in fact become effective immediately and its provisions are being worked out currently. Jeff Davis and Presidio counties already have water districts.]

Don Dowdey noted that SB2 says groundwater districts cannot forbid exportation of groundwater, although fees may possibly be levied.

Liz asked for input on any aspects of groundwater that her committee should pursue.

SEPTEMBER CLEAN UP DAY: Susan Curry announces that September 29th will be the first cleanup of the two-mile stretch of Highway 90, which the Big Bend Regional Sierra Club promises to keep litter free. The segment is just east of the Y where 90 and 67 split. The cleanup will start at 9 a.m., with volunteers meeting at the rest stop adjacent to the split. Please contact Curry (915) 837-2311 or Marilyn Brady (915) 837-3210 to volunteer.

CALENDAR SALES: Ginny Campbell will be in charge of calendar sales this year. Plan ahead for Christmas gifts! We will have calendars at the fall meetings.

CONTRIBUTION: There were no donations since the last newsletter, while pledges were $35. The year's total through July 23 is $1277.

FALL MEETINGS: As usual the Big Bend Regional Sierra Club will hold meetings the third Tuesday evening at 7 p.m. in September, October, November, and December. They will be at Sul Ross State University in Lawrence Hall 309, though we may schedule one of the meetings out of town. Programs are still being arranged. In place of our October meeting, we will attend the public meeting (probably in Alpine) to be held by the Environmental Protection Agency. Some preliminary results of the BRAVO meeting will likely be presented at that time. (More about that meeting in future newsletters.)

BBRSC EXCOM MEETING REPORT

Following are some of the highlights of the ExCom meeting of July 26th.

Nominating Committee: Brenda Bell, Marilyn Brady, and Fran Sage were appointed to the Nominating Committee. All have accepted the appointment.

Budget Shift: The ExCom voted to shift $100 from the program funds for possible investment in a software publishing program. Luanne Hirsch and Fran Sage will look into possible programs and costs.

Fundraiser: The proposed fundraiser at the Railroad Blues in Alpine is still being arranged, but it looks likely for October. The next newsletter will have definite plans.

List Serve Information: Don Dowdey reports the BBRSC is developing two list serves, an alert list serve for our region and one statewide. After discussion the ExCom decided to add another, dealing more exclusively with club matters. Don said the list serves would be through the national Sierra Club servers. It will take several more weeks to get them established. The initial list will consist of those who have been on Fran Sage's alert list. Anyone not on that list (or unsure) may contact Don for addition to the list. The alert list includes both members and nonmembers. There will be a feature allowing for anyone on the list to unsubscribe if they do not wish to be on the list.

Position on Entrada al Pacifico: The Executive Committee decided to survey its membership to see it the BBRSC should add it to its list of issues. Please fill out the form included with this newsletter and mail as soon as possible. The Executive Committee will then decide how to proceed based on the response. Please let your views be known!

ENTRADA AL PACIFICO SURVEY

As most people know the issue of Mexican trucks into the interior of the United States is a "hot" national issue right now. While the national debate has been on truck safety, the issue in our area takes on local dimensions. For several years a segment of highway 67 has been designated as Entrada Al Pacifico, "Gateway to the Pacific." The project has been urged and supported out of Midland with the hope of providing a link to Topolobampo a Mexican port on the Pacific Ocean. It would link United States and Mexican trucks from the port city to Chihuahua City and then to Ojinaga/Presidio, Marfa, Alpine, Fort Stockton, Midland and points north and east. The impact on those cities could be enormous. Major support on both sides of the border would be needed to upgrade roads, including widening, bypassing, etc. While there is varied support and opposition to the truck route among city/county officials and Chambers of Commerce, the Big Bend Regional Sierra Club does not know, generally speaking, where its members stand. The Executive Committee seeks opinions from our members. The survey is focussed only on the proposed Entrada al Pacifico. The safety issue remains a separate, national one, important along the entire border and on inland. Please return this form telling us how you feel. We will only pursue action if there is general consensus and if there are volunteers to work.

1. Should the BBRSC develop a position concerning the proposed Entrada al Pacifico issue (Mexican trucks on a route from Topolobompo through Chihuahua City, Ojinaga/Presidio, Marfa, Alpine, Ft. Stockton, and on to Midland and points north), one critical of current proposals?

2. Would you be willing to work on developing a position and putting it in place?

Comments:







Signed

Return to Fran Sage, Newsletter Editor and Conservation Chair

Big Bend Regional Sierra Club
P. O. Box 564
Alpine, Texas 79831


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