Local Control

Governor George W. Bush has prospered with an anti-Washington campaign theme of letting Texans make decisions about Texas.

Environmental groups are saying he'll have a chance to back up that rhetoric when he considers two pieces of legislation that they argue would surrender to the feds much of the state's authority to review ecologically sensitive projects.

One is a rider to the appropriations bill that sets a budget for the Texas Natural Resources Conservation Commission; the other is a much more obscure bill whose effect is limited to Harris County.

Groups such as the Sierra Club and the National Wildlife Federation have been focusing their energy this legislative session on the high-profile fight over cleaning up industrial plants grandfathered under the federal Clean Air Act, and so the TNRCC items have slipped below the radar.

They have some optimism that they can convince presidential hopeful Bush to burnish his environmental credentials by using the line-item veto on the budget rider, which would limit the TNRCC's ability to review proposed projects not affected by the Coastal Management Act.

They hold out less hope, though, for the Harris County bill, which was introduced by Republican Peggy Hamric and sponsored in the Senate by former Harris County judge Jon Lindsay.

House Bill 2977 contains some good language encouraging flood control plans, they say, but also includes sections that would handcuff the TNRCC's ability to review local projects.

Almost all projects affecting wetlands are subject to certifications by the U.S. Army Corps of Engineers; "401 certifications" allow state agencies to subsequently review the Corps's decision. (The number refers to the relevant section of the federal Clean Water Act.)

House Bill 2977 "says that if your flood control district indicates an intention to create a regional plan, then for two years you are exempt from facing any 401 certifications for approval of any dredging-and-filling project," says Ken Kramer, state director of the Sierra Club." That's not a very stringent criterion for avoiding 401 certification, simply saying, 'We're fixing to do a plan somewhere down the road.' "

Other language in the bill orders the TNRCC to waive its review rights for some projects even beyond the two-year period, says Myron Hess, resource specialist for the Austin-based regional office of the National Wildlife Federation.

"It basically says, 'State, you can be involved, but just do what the Corps says is right,' " says Hess. "It's a real mistake to take the state out of wetlands protection."

The bill also, he says, makes it easier for developers to choose the least environmentally friendly way of making up for wetlands damage: compensating the state financially instead of mitigating or minimizing damage.

The TNRCC has never knocked anyone's socks off when it comes to aggressively reviewing wetlands projects, but Hess and Kramer say the agency does indeed serve as more than a rubber stamp to the Corps.

Reviews for 401 certification have increased since Texas adopted its Coastal Management Plan in 1995, and Kramer says he has heard anecdotal evidence that TNRCC has angered some developers with its bureaucratic ways.

"Some of the complaints may be legitimate, from what I hear," he says.
The agency convened a work group of environmentalists and developers to improve the process, but by then the business interests had begun their push to have legislators rein in the certifications.

"We were told that this bill was pretty wired -- that the developers in Houston wanted these restrictions on the TNRCC," Kramer says.

Jeff Burdett, legislative aide to Hamric, says he's taken aback by the protests that are now being made. All the bill does is keep the TNRCC from duplicating the work of the Corps, he says, and the language encouraging regional flood plans is an environmental plus.

"They sure didn't come and talk to us about any problems they had," he says. "This is an environmentally friendly bill. It will take people out of flood plains.... Absolutely no one came and said they didn't like it, and not one person has negatively called this office about it."

That's true, Hess, Kramer and other environmentalists say.
The environmental groups, partially distracted by the grandfathering fight and the beneficial sections of the bill, didn't focus on it until well into the legislative process. They also were involved with successfully beating back a resolution by Lindsay that would generally have done what HB 2977 seeks to do, but with statewide jurisdiction.

Moreover, Kramer says, HB 2977 got assigned to committees stacked with legislators seen as turning a deaf ear to their groups.

The House's Land and Resource Management committee and the Senate's Natural Resources committee are not the places to put up a fight, he says.

"It usually does environmental groups no good to testify before them," Kramer says. "If we do, it only helps the bill get out. The Sierra Club's big priority was closing the grandfather loophole for air polluters, and rather than tilt at windmills before committees where we have absolutely no stroke, we decided there were other ways to kill the bill."

But those "other ways" didn't materialize. The bill landed on the Local and Uncontested Calendar, the place for ostensibly noncontroversial bills with limited geographical effect. Legislators can pull another member's bill from that calendar with relative ease, but in this session the environmental lobbyists found it difficult to find someone to pull the trigger.

"There's just been a reluctance this session for legislators to knock off someone else's bills, because they have their own bills on there and don't want any retaliation," Kramer says. "So part of what happened was that we just thought we could get it knocked off when it came up after the committees, and we found out we couldn't."

Which means that barring some unforeseen last-minute maneuver, the bill and the rider will make it to the governor's desk. As legislation that was passed in the last ten days of the session, Bush will have 20 days to exercise his veto, or the provisions will be enacted whether he signs them or not. Bush's press office refused to comment on the legislation.

Maybe it was a lack of resources that kept environmental groups from putting up a good fight on HB 2977; maybe it was ineptitude; maybe it was bad luck. Kramer, for his part, says the bill is an example of how big changes can be made out of the spotlight.

"It's just a sad story of how special economic interests with powerful friends can have a bill, use good-sounding language like 'avoid duplicating effort,' and get it to the right committees so it doesn't matter if there is opposition," Kramer says. "The TNRCC is, generally speaking, not what you would call a bold agency, and if the Legislature gives a signal -- and what better signal than a rider attached to your budget appropriation or a bill like 2977 -- then they're going to be reluctant to act no matter what happens."

E-mail Richard Connelly at rich_connelly@houstonpress.com.

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