"My question is, what happens if the permits and their proposal is denied after they have been operating out there now for 20 years?" Joyner says. "It's all kind of up in the air."
Complicating any proposed solution, and possibly explaining the LID's aversion to what Molly Cagle calls "legal remedies," is the continuing development of Sienna Plantation. The LID is awaiting final approval to levee off another 1,900 acres of land to the northwest of the existing levee. That project already has been delayed by concerns over the potential impact to 2,455 acres of bottomland hardwood forest, the loss of which would be "of national significance," according to the U.S. Fish and Wildlife Service.
After Oyster Creek's flow was restricted, Dick and Lisa Rogers had to drill a well.
Deron Neblett
After Oyster Creek's flow was restricted, Dick and Lisa Rogers had to drill a well.
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The district is also waiting for TNRCC approval to annex 806 acres in and around Sienna Plantation. According to a report by the LID's engineers, two of the four tracts would divert storm-water runoff into Oyster Creek. Any solution to restore downstream flow would have to consider the impact of the pending annexation.
Meanwhile, the meager flow in Oyster Creek is holding up a study to determine what it would take to make the creek safe again for fishing and swimming. The Houston-Galveston Area Council was set to begin the study last July, but it had to be postponed when it became apparent there wasn't enough water to get an accurate reading of pollution levels.
Hydrologists like Woody Woodrow of the Texas Parks and Wildlife Department believe the flow can be restored to healthy levels -- although given the damage that's been done already, it won't be easy.
"You can definitely restore the flow to the creek. It's doable," Woodrow says. "I just hope they don't end up settling this case by saying, 'It's too tough to restore the creek, so we'll just fine you,' and then everybody just walks away."
It's less than a week after Tropical Storm Allison, and a few feet away, Oyster Creek overflows, spilling water to within a few yards of Scanlan Road. Lisa Rogers shakes her head in frustration. The creek is thick with water here in Sienna Plantation; at her family's ranch, it looks as parched as if the rain had completely passed it by.
"They sure missed a good opportunity to let the water come down and fill us up before the hot, hot summer gets here," she says. "That means we're going to have to pump that much more water because we didn't get a chance to fill up our creeks and ponds. That just breaks my heart."
Not long ago, Lisa was eager to avoid the kind of "legal remedies" LID attorney Molly Cagle says aren't necessary. Lisa even offered to withdraw her complaint in January if the LID would agree to pay to pump water into the creek from Chocolate Bayou, which runs parallel to the south wall of the levee. It's apparent to her now, though, that the LID would just as soon see Oyster Creek permanently dry. She's also accepted that the TNRCC has no intention of protecting her family's interests by prosecuting the case.
"We didn't really care whether anyone was held responsible or not. We just wanted it fixed," she says. "But if we have to sue to get our water back, we'll do it. And we can't sue Sienna without suing the state, because they are the ones who issued the permits for that levee."
Even if the mistakes and the bureaucratic shortcuts and the willful disregard of the past 20 years are somehow reversed, Dick and Lisa Rogers seem to be fighting a battle that, ultimately, they cannot win. Approval is pending on a new section of the Grand Parkway that would lay eight lanes of concrete across land that Francis Bingham sold to the state 80 years ago. Land speculators already have been around to see Dick and Lisa, talking up the inevitable that would end four generations of cattle ranching that began when Texas was still Mexico.
"It's not the money that would put us out of here," Lisa says. "They put that parkway out yonder, you know what's coming. It'll just be a matter of time."
By then, Dave Tidwell figures, he'll be out of the cattle ranching business for good. He's 77 years old, and a couple of months back he had another heart attack. Keeping the weeds out of his pasture, bringing the calves to market twice a year and watching out for the health of the herd is hard work for modest income.
A few weeks ago Tidwell stood on a crude wooden bridge over Oyster Creek, where it divides his 300 acres. Down below, there was more bottomland than water in the creek bed. Tidwell says the Gulf of Mexico needs to start pushing in a regular supply of afternoon showers, or what little of Oyster Creek there is won't last long.
"This is all there is to this creek anymore," he says. "And it'll go down pretty quick."
