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That work is proceeding at a rapid clip, perhaps because McCord knows that the faster he clears the land and throws up his houses, the more difficult it will be to prove there was ever any water there at all. In fact, he's already building Summerwood's expansive community center, even though it hasn't been formally approved by Commissioners Court. "Some people do it," says one city planner when asked about such early construction. "I wouldn't do it if I was a developer."
Because the rules are skewed to favor development, McCord is in an enviable position. Any restoration of Carpenters' flow to Sheldon will have the counter-effect of inundating a section of his property. Even though this would simply restore what was once the status quo, the legal implications are hazy. To guard his interests, McCord has retained the Vinson & Elkins law firm, and the threat of a legal imbroglio with V&E, should one agency or another assert its authority, has kept the bureaucrats in check.
Not that one or more couldn't stake a strong claim in court if they chose. In particular, the Army Corps of Engineers has the ability to take action, since that agency has enforcement powers over its wetlands permits. But enforcement avoidance seems more the order of the day for the Corps' Galveston district.
Environmental attorney Jim Blackburn, who represented the flooded landowners in the Greens Bayou lawsuit, recently penned a scathing letter to Corps District Commander Robert Gatlin, expressing dismay over the district's track record. "Within the Corps, certain districts have reputations as being more lax than others," Blackburn wrote. "Galveston has always been considered one of the more lax. However, the current situation in the Galveston District is worse than it has ever been."
That view isn't only held by those with environmentalist tendencies. "Poor decision making" is one Corps employee's summary of the trend in Galveston.
Though the Corps could apply pressure on a number of Sheldon fronts, including the Beltway, city ditch and West Lake Houston Parkway diversions, the agency has declined every request to intervene, often citing the letter of the law. "Rules and regulations are our number one priority and always have been," says Corps biologist Dwayne Johnson. "Our goal is to get these things decided and off the books and out of our hair."
Other times, as in the case of Beltway 8, the Corps offers no reason at all for bowing out.
The Corps is not the only agency that could move to correct the problems besetting Sheldon. The Texas Natural Resource Conservation Commission has control over water rights to Carpenters Bayou, which Sheldon holds under the original purchase agreement, and can also step in when water is diverted from one watershed to another, which is the case with several of the diversions.
But like the Corps, TNRCC is better known for passivity than aggressive protection of the resources it supposedly oversees. Agency spokesman Jerry Hadley says requests for executive director Dan Pearson to take a stand on Sheldon are under evaluation. "We aren't ready to say what our jurisdiction, if any, is," Hadley says.
Even the Parks and Wildlife Department, which is trying to sift through the jurisdictional complexities and coordinate an action plan, shares responsibility for the current state of affairs. Park superintendent Robert Comstock, biologist Andy Sipocz and others in the department have been clamoring for attention for years, but only recently did the bureaucracy lumber into gear. "For the most part, there was no response," says Sipocz.
Parks officials are currently working on a proposal to restore some of Sheldon's water and create a contiguous green area as a permanent wildlife habitat. In exchange for re-soaking a sliver of McCord's turf, they'll offer the developer regulatory relief for developing the rest of his property. Whether McCord will feel compelled to cooperate remains to be seen.
If not, the issue could wind up in court. But by the time the system figures out the whole convoluted mess, Sheldon Reservoir could be history.