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Down the Drain

If not for the low thrum of industrial traffic from Highway 90 on the south, Sheldon Reservoir might seem to be 1,000 miles from civilization. Flocks of ducks, egrets and herons scour the 1,503 acres of pond and marshland from above while alligators and beavers forage below. Along the shoreline, fishermen in wading boots cast for the ten-pound bass that have been grabbing hooks at the reservoir for more than 40 years.

But Sheldon isn't 1,000 or even 100 miles away. The prime wildlife habitat and recreation area sits just eight miles outside of Loop 610, an island of green amid a vast expanse of factories, roads and subdivisions. Owned and managed by the Texas Parks and Wildlife Department, the reservoir is home to at least 200 species of birds and dozens of land beasts. The facility attracted more than 300,000 visitors in 1993, ranking 30th among the 113 state parks that keep such statistics.

Those visitors aren't the usual crowd of well-heeled nature freaks on a tree-hugging expedition, either. If they recorded their names on a register, Sheldon's guest list would probably read like a Who's Who of working-class residents from east Harris County. The Parks and Wildlife Department calls them "non-traditional users," and they're a priority at Sheldon.

As are their kids. Thousands of kids. Sheldon staffers provide free fishing equipment and instruction and do extensive outreach in Houston's inner-city schools. An abandoned fish hatchery on the park's south side is being turned into an environmental education center. "We've got to get to these children," says Sheldon park superintendent Robert Comstock, who sees firsthand how urbanization has isolated today's youth from the natural world. "They're the legacy. Unless we teach them now, who's gonna teach them later?"

At the moment, though, Comstock, whose perpetually muddy boots and cuffs are as much a part of his uniform as his government-issue shirt, has more pressing worries. Attendance at the park has fallen by about 50,000 since 1993, mostly because the fish aren't biting like they used to. That's because the once-excellent water quality at Sheldon has deteriorated -- fish don't thrive in mud -- which, in turn, is being blamed on the runoff from a decade of development north of Sheldon.

Worse still, the water level is more than a foot below where it's supposed to be this time of year. Since it averages only about five feet under normal conditions, the drop is significant. And while the spring drought has contributed to the problem, its primary cause is that the reservoir's water supply has dwindled to a virtual trickle the past ten years.

In short, Sheldon is drying up.
In a prolonged drought, says Andy Sipocz, a TPWD biologist who has been trying to restore Sheldon's water for almost six years, the reservoir could disappear completely. If the summer is only typically dry, it will continue to exist. "But the difference is going to be between a lake with healthy vegetation and healthy animal and fish populations and a stagnant, stinking pool," Sipocz says.

Sheldon gets its water from Carpenters Bayou, a maze of shallow channels and wetlands that fans northward for several miles. But a series of public and private construction projects has diverted more than 60 percent of Carpenters' flow into Lake Houston to the east and neighboring Greens Bayou to the west.

The public projects include the northeast portion of Beltway 8 and a city drainage ditch, both built in the late 1980s, and more recently, the first section of the new West Lake Houston Parkway, which will connect the Beltway to FM 1960 and Kingwood.

On the private side, developer Rick McCord has launched the initial phase of Summerwood, a subdivision that will eventually spread over 1,500 acres he owns directly north of the reservoir.

To a casual observer, the solution seems relatively simple: fill in a piece of the city ditch (which officials agree would be okay with them), reroute the Carpenters channel to avoid the Beltway, or ensure that, as required, West Lake Houston Parkway and Summerwood don't interfere with Carpenters' flow or otherwise suck Sheldon's lifeblood.

But a casual observer might not realize that over the years, the ten different government agencies and several private firms involved in the various projects have staged a comedy of bureaucratic bungling and inaction that has brought Sheldon to the crisis point. And while all have expressed at least token willingness to help forge a solution (while backpedaling furiously from accepting responsibility for the problem), none have claimed the authority to make it happen.

When it comes to development issues in Texas, though, that's almost by the book. "We want highways built, we want certain things built and we don't want anybody to get in the way," says Rollin MacRae, the parks department's wetlands resource coordinator. "State government is designed to splinter power and authority in such tiny pieces that no one can accomplish much of anything."

 

The lack of a focal point leaves those who want to save Sheldon Reservoir scrambling for a coherent strategy. Or something a little more nebulous.

"We're gonna have to have a little luck on this issue," says TPWD's Bob Spain, who is coordinating the agency's efforts. "At this point, I'm hoping it's not too late."

Sheldon superintendent Robert Comstock is glad his park is finally getting some attention, though sometimes he feels as if he'll bust from frustration. "I've been screaming about this since '86," he says, thumbing through the yellowed pages of a crumbling work journal to prove it.

Originally built in 1942 to provide water to wartime industries, the reservoir was eventually intended to serve as a city water supply. After that idea was abandoned, TPWD took it over in 1952 and has managed it since, though the emphasis has shifted over time from wildlife management to recreation as urbanization swallowed the surrounding lands. Comstock was named superintendent in 1984.

Though Beltway 8 had been in the works for years, work on the northeast portion didn't begin in earnest until after Comstock arrived. When he looked closely at the plans, something seemed very wrong.

Aerial photographs showed it. Surveys showed it. A county flood control map showed it. Even the Key Map had it. But somehow, the agencies and engineering firm responsible for designing the Beltway missed the fact that the road would slice a meander off the Carpenters Bayou channel. So the Texas Department of Highways (now TxDOT) built the Beltway as planned.

It only took the first downpour for the mistake to become evident. Little more than an inch of rain brought sheets of water out of the woods and onto the pavement, forcing TxDOT to haul out flashing beacons and station traffic controllers on-site to prevent disaster. Freed from their natural confines, carp could occasionally be seen swimming up the northbound lanes of the Beltway like a biker brigade.

Motorists weren't the only ones inconvenienced. The water that used to flow into Sheldon from the cut-off Carpenters channel drained from the road and was shunted into neighboring Greens Bayou. That, in combination with a series of drainage ditches authorized by the county, caused massive flooding of houses and property to the south. The landowners sued in 1993, and last year the Harris County Flood Control District and TxDOT settled out of court.

During negotiations, TxDOT insisted that cutting off Carpenters had little or nothing to do with the flooding. But an independent analysis by the engineering firm Dodson & Associates found to the contrary. "Some drainage area which was formerly included in the Sheldon Reservoir watershed was diverted to the Greens Bayou watershed as a direct result of the construction of Beltway 8," the report states.

Today, TxDOT engineer Ruben Martinez acknowledges that Sheldon has lost part of its flow to the Beltway. "That's probably true," Martinez says, though he hedges on the highway's role in the flooding. And he says he didn't find out about Sheldon's problems until Parks and Wildlife pointed it out at a recent meeting. At the time the road was built, Martinez says, "Sheldon was not taken into account for some reason. It was an oversight."

That oversight, according to TPWD estimates, cost Sheldon Reservoir more than a third of its water supply.

At about the same time TxDOT was paving the Beltway, the city of Houston was playing its own version of capture the water. In the early 1970s, the city bought a chunk of property about three miles north of Sheldon for a proposed water treatment plant. To serve the plant, the city built a drainage ditch that extended from Lake Houston due west to the plant site.

In 1985, the ditch was extended another mile, almost to the northeast corner of the Beltway, effectively cutting off the northern reaches of Carpenters Bayou and dumping the flow into Lake Houston. This was done, according to Neil Bishop of Turner Collie & Braden, the engineering firm that designed the extension, to drain a parallel access road the city had to build as part of its purchase agreement. "That was probably the most feasible option," Bishop recalls.

Though the documentation is sketchy (and opinions on other options differ), one fact seems clear: if the same need presented itself today, current federal wetlands rules would require the city to find another way to drain the road. At the time, however, those rules were not in effect.

Good-bye, another 11 percent of Sheldon's water.
As the ditch and the Beltway were both being completed, haggling began over the route for West Lake Houston Parkway, which was designed to relieve traffic on FM 1960 and to and from Kingwood by linking that development with the Beltway. The original idea, part of Houston's Major Thoroughfare and Freeway Plan, was to run the road into Duessen Parkway, which parallels the eastern shore of Lake Houston. An alternative that would have placed the road to the west extended in a virtual straight line from the Beltway northeast along Union Pacific railroad tracks.

 

But the proposal that won the day came from area landowners, including Rick McCord. In exchange for their donation of right-of-way and engineering services for the Parkway, the road would find its way directly through their property, zigging due east from the Beltway before zagging sharply north. The city planning commission approved. METRO, the agency that would contract and pay for West Lake Houston Parkway, also agreed.

Unfortunately, the revised route had its downside.
"Wetlands that will be adversely impacted by this proposed project are some of the highest quality wetlands found in northern Harris County," wrote Russell Rhodes of the Environmental Protection Agency in a letter arguing for the railroad alignment.

In addition, without proper safeguards, the route favored by the landowners would further divert the water in Carpenters Bayou away from Sheldon Reservoir.

Despite the willingness of the Army Corps of Engineers, the agency that issues permits for projects that affect wetlands, to plow ahead, a growing din over the proposed route held up approval. In 1991, after more than a year of intense negotiation between various agencies and builders, a compromise was reached: the landowners could have their road, but strict design parameters would allow Carpenters' water to flow from the north side of the parkway to the south without interruption. In addition, the wetlands lost to the parkway itself would be offset by a mitigation plan elsewhere.

Sometime between the agreement and the construction of the road, communications must have broken down. How else to explain that most all of the water that reaches the road from the north now gets drained into Lake Houston?

It doesn't take an engineer to see how it's working. Pate Engineers Inc., the firm that designed the section of the Parkway that runs through McCord's land (and was paid by McCord to do it), called for more than a dozen storm drains in what will eventually be the median of the four-lane road (due to a funding shortage, only two lanes have been built thus far). The drains empty into an outfall ditch that carries the water to the lake.

Meanwhile, the culverts that, in theory, should carry the water from Carpenters across the roadway don't extend from one side to the other, but are broken in two sections. Instead of spilling out on the south side, the water is pooling in the median and exiting via the storm drains, a number of which are concealed by scenic beds of wood chips.

Adios to another healthy bit of Sheldon's remaining water supply.
Pate vice president Jeff Ross says that if there's a problem, it's an accident. "There was never any intent to divert the flow from one place to another," Ross says. Besides, METRO, the county engineer and the Army Corps all saw Pate's plans and had no objections at the time. "All parties were involved in the final approval," he says.

Meanwhile, a number of drainage ditches have been dredged on McCord's land and are further depleting the watershed. Though their source and function is the object of some dispute, at least one seems clearly to subvert the intent of the wetlands agreement. At the precise point where one of the culverts that is supposed to allow Carpenters water to flow unimpeded to the south opens off the Parkway, a ditch waits to capture and haul it away. After a recent rain, the ditch was full of water.

Charles Leyendecker, president of McCord Development Communities, a spinoff of McCord's development group that is managing Summerwood, says his people don't know about the ditch, even though it's visible from the road.

"This is currently the mystery ditch," he says.

If you're a conspiracy theorist, the Sheldon Reservoir story abounds with possibilities. Pate Engineers designed the drainage ditches along the northeast portion of Beltway 8 and the West Lake Houston Parkway segment through McCord's property. McCord bought the tract in November 1985 -- one month before the city signed a contract to extend the ditch. Turner Collie & Braden conducted a much-criticized environmental assessment of the Parkway and designed the city ditch extension. The Army Corps of Engineers has its fingerprints all over the place.

 

Though no evidence exists to prove they were working in tandem, numerous troubling questions remain unanswered: Who's burying the water treatment plant access road under tons of dirt, which the city claims to know nothing about, and why? How did a reputable engineering firm and at least two agencies charged with oversight of such matters miss the fact that the Beltway would cut off Carpenters Bayou, when even a layman could see it on the maps? Why is there almost no documentation of the city ditch extension? And why is West Lake Houston Parkway diverting Carpenters Bayou, even after intense and technical negotiations to prevent such an occurrence?

This last question has an added element of intrigue. After Parks and Wildlife staff complained about the Parkway diversion late last year, they managed to wring an agreement from METRO, the county engineer and the Corps of Engineers that the problem would be corrected. The solution involved capping the grated storm drains and building berms near others to steer the water through the culverts. "We went back and looked at the drawings and said, yeah, this should have been plugged, that should have been plugged," says Dan Penaloza, METRO's assistant general manager of engineering, construction and real estate.

But as of last week, the work had not been done. Asked why, Penaloza said he thought the two drains had been capped (even though nine were slated for capping). As for the berms, he said METRO had been moving ahead on their construction until a call came from the county to cease and desist. "Our project people were advised to hold off," said Penaloza, who suggested that county engineer Terry Anderson might have an explanation.

"I don't know what he's talking about," countered Anderson. "We're not holding anything up in my office."

Later, Anderson amended his comment to say that the point was moot, since he'd called METRO and cleared the way for the work to begin. Asked who had originally called the work to a halt, Anderson wouldn't say. Nor would Penaloza honor a request to ask his "project people" to finger the culprit. "I'm satisfied from my end," he said.

Deflecting questions as well as water is relatively easy when layers of bureaucracy serve as a shield. And with Sheldon, a tortuous walk through the many jurisdictions that have some responsibility over West Lake Houston Parkway provides the perfect illustration of just how thick those layers are (though a look at the Beltway, ditch and subdivision would serve just as well).

METRO is managing the construction of the Parkway, though the county applied for the wetlands permit from the Corps of Engineers. Why split the responsibility instead of having METRO handle the whole affair? No particular reason, says Dan Penaloza. "It's just a matter of the two agencies trying to get something done."

McCord paid for Pate to design his section of METRO's road, which METRO, the county and Corps of Engineers approved. If water is indeed being diverted out of the watershed, the Texas Natural Resource Conservation Commission should have something to say about it. The city's Planning and Development Department approves all subdivision plans, including roadways. TxDOT, the city Public Works and Engineering Department and the Harris County Flood Control District also are peripherally involved.

Now that problems have emerged, all the fingers are pointing in different directions. "As far as the design and engineering of West Lake Houston Parkway, we as developers don't really have a lot of control over that," says Charles Leyendecker of McCord Development Communities.

"METRO is managing the project," says county engineer Terry Anderson. "They have been handling this all during construction."

"Being that the permit is with the county and the Corps," says METRO's Dan Penaloza, "we are acting for the county. We're just a facilitator."

Says Pate's Jeff Ross: "Everybody has some level of involvement. [But the county is] really the authority to speak on this issue."

Under the circumstances, absolution is simply the final, inevitable step.
"This is not anything wrong that anybody's done," says Anderson curtly. "There's no controversy that I know of."

If this welter of confusion leaves Sheldon and its patrons the big losers, one player stands to come out ahead: Rick McCord, whose 1,500 acres, once largely marshy and undevelopable, are considerably drier today. McCord, who owns a slew of choice commercial properties in Bellaire and downtown, would not return phone calls from the Press. But Charles Leyendecker of McCord Development Communities says that Sheldon will be an asset to the subdivision and that McCord is more than willing to contribute to a resolution. "We remain ready and able to discuss options," Leyendecker says.

McCord's actions over the years, however, belie Leyendecker's words. Several years ago, he dug a series of ditches in the western portion of his land, ostensibly to allow loggers to harvest trees in the area. The ditches had an added benefit -- they dewatered the property.

 

McCord's fancy for ditch digging has been a constant source of concern. A 1993 inspection by David Hankla of the U.S. Fish and Wildlife Service prompted a sharp letter to the Corps of Engineers over a pair of newly constructed ditches in the vicinity of West Lake Houston Parkway. "Both are absolutely contrary to specific promises and project design from the permittee to prevent this from happening," Hankla wrote.

Such activity led Linton Ardoin of the Parks and Wildlife Department to conclude that McCord had other than the public interest at heart. "His efforts are geared to draining and drying wetlands along the bayou," Ardoin wrote to department executive director Andy Sansom in 1994, "in the hopes of developing them as residential or commercial real estate."

That would have been a tricky proposition until recently. TPWD biologist Andy Sipocz, who has conducted extensive field studies of the property over a period of years, estimates that the McCord tract consisted of about 60 percent wetlands. Engineering consultant Tony Vasquez, who worked on West Lake Houston Parkway and now teaches in Puerto Rico, puts the figure closer to 75 percent. Regardless of the exact figure, most people who looked at the area concluded that water was the dominant characteristic. For that reason, as a 1991 county study noted, "It is not a location which is suited nor amenable to development."

McCord, however, refuses to concede that his property was or is a wetlands zone. "We have had studies completed by the most respected authorities in the environmental professions that are contrary to this claim," he wrote in a letter rebutting various Sierra Club arguments against the parkway.

Asked who these "most respected authorities" were and if they put their findings on paper, Charles Leyendecker hedges. "I'm not denying there's a lot of wetlands on the property," he says. "I'm just saying there's not wetlands where we're [currently] doing the work."

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.


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