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Up a Creek

After Oyster Creek's flow was restricted, Dick and Lisa Rogers had to drill a well.

Dick Rogers began learning the cattle business at the age of nine, when his father put him on a horse and told him to keep the cows out of Oyster Creek. It was a maddening job come deep summer, when the heifers found the spring-fed stream hard to resist.

"It'd be so hot, you'd run this one out and another one would go right back in," Rogers recalls. "Kept you swimming your horse all the time." Rogers still ranches along Oyster Creek, on 1,300 acres in Brazoria County that his great-grandfather settled more than 175 years ago. For four generations, the Oyster has been a vital source of water for the family's livestock and, to hear Dick Rogers tell it, almost as reliable as an old friend.

But the Oyster Creek his father's cattle found so inviting is little more than a trickle now. Water that was chest-high to a horse when Rogers was a boy flows so feebly it can't get past the wild hyacinth choking the creek bed. Rogers doesn't chase the cows from Oyster Creek anymore, but sometimes he has to pull them out when they look for water and become mired in the muddy bottom.

Rogers didn't just wake up to this situation. The springs are gone, he says. So are the rice fields that for decades drained into the creek from Fort Bend County. And while the Upper Gulf Coast hasn't suffered the devastating drought that has afflicted other parts of the state, it's been drier than usual the past few years.

"Creeks change from year to year," Rogers says matter-of-factly. "Toughest drought we had was in '57. That's when the creek got the most driest other than this last time."

Maybe because ranching is equal parts hard work, patience and faith, Dick Rogers doesn't linger on things that seem beyond his control. And if Lisa Rogers hadn't fallen off a horse in 1996, she too might have figured Oyster Creek would take care of itself. But suddenly unable to work beside her husband, Lisa had time to listen when her neighbors complained that something was standing in the way of their water.

The speculation centered on a ten-mile earthen levee built in 1984 to protect the future homes and businesses of Sienna Plantation, a 6,500-acre development in Fort Bend County just north of the Rogerses' ranch. Designed to hold off the floodwaters of the Brazos River, the levee was approved by state regulators after the district's engineers assured them that for landowners outside the levee, life would go on as if it had never been built.

And for a time, it did. But by the spring of 1998, Lisa and Dick had to abandon their traditional reliance on Oyster Creek and start pumping groundwater for their cattle. The well set them back $10,000 and added more than $100 to their monthly electricity bill. Convinced the levee was to blame, Lisa filed a complaint with the Texas Natural Resource Conservation Commission in October 1998. It took more than two years, but her suspicions were apparently confirmed last December. The TNRCC accused the Sienna Levee Improvement District, builders of the $10 million structure, of illegally diverting the flow of Oyster Creek to the Brazos River.

The TNRCC, hoping to resolve the problem quickly, proposed that the levee district, or LID, pay a $28,000 penalty and engineer a solution to restore the creek's flow. But the LID rejected the offer, claiming the Fort Bend County Drainage District and a Sienna Plantation developer were responsible for diverting the creek. Now, state engineers are reviewing a LID proposal to determine if it can get the water moving again.

Meanwhile, the competing interests that supposedly had been addressed before the levee was built 16 years ago have to be revisited under entirely different circumstances.

"Obviously they still have to be concerned with flooding," says Dan Joyner, an attorney for the TNRCC. "They don't want to put too much water back in, but they want to put enough back in so everybody can water their cattle, irrigate their land, whatever they need to do. It's a hydrological issue."

That's probably not the word Dave Tidwell would use, but he's a little annoyed these days. A retired HL&P lineman who leases 300 acres of pastureland between the Rogers ranch and Sienna Plantation, Tidwell bartered a truckload of fence posts to water his 70 cows last summer. After Tropical Storm Allison dropped seven inches of rain on Brazoria County, he figured he wouldn't need to cut another deal this year. But a month after the storm, Oyster Creek is no better for it. The only appreciable water through Tidwell's pasture sits in inky, stagnating pools covered with algae. With the worst of summer to come, Tidwell isn't sure what he'll do for water, short of a rain dance.

 

"They sure enough got a bunch of water higher up there that could have come down where we could get it, if it didn't go into the river," Tidwell says. "Ought to be a way to turn at least a certain amount of that water this-a-way."


In November 1528, about 80 Spanish gold hunters survived a shipwreck and washed ashore at the mouth of Oyster Creek on a flotilla of log rafts. After a few days on the desolate, wind-raked salt marsh infested with mosquitoes and populated by a root-eating tribe of Carancahua, they felt compelled to give it a name: Isla de Mal Hado, Island of Evil Destiny. Indeed, all but seven of the wayward Spaniards -- historians reckon they were the first non-natives on Texas soil -- would die of starvation and disease there, and those who didn't never found any gold.

Almost 300 years later, the schooner Lively anchored just west of Isla de Mal Hado. Following the parallel paths of the Brazos River and Oyster Creek, passengers went north to Richmond to meet Stephen F. Austin, who had just secured 300 land grants from the Spanish governor. One of "The Old Three Hundred," as those first settlers are sometimes referred to, was an Irishman from Monroe, Mississippi, named Francis Bingham. He took title to 4,400 acres along the east bank of the Brazos on July 10, 1824.

Bingham was, by accounts, a peevish sort. He returned to Monroe for a spell to confront a man who had, as he put it in a letter to Austin, "altered one of my hogs." In 1837 Bingham was piqued to learn that his flourishing corn-and-cotton plantation was planned to be part of the new Fort Bend County.

Bingham objected on the grounds that Fort Bend was too hot in the summer, too cold in the winter and too wet in the spring, an inscrutable complaint that nonetheless explains why the southeast corner of Fort Bend looks like it was bitten off by Brazoria County. He passed his empire on to son James, who weathered the economic hardships of Reconstruction. Francis's grandson John expanded the family's small ranching operation, a move that got the family through the Great Depression and again when World War II siphoned off the field hands and forced him out of the planting business altogether.

John didn't marry until he was almost 60, but he went on to have five boys. Only one, Richard, felt compelled to carry Francis Bingham's legacy another generation forward.


Dick Rogers -- he took his Cherokee mother's name years ago, for reasons he keeps to himself -- is 67 now. The thickset man has a square face, blue-gray eyes and a slim mustache that sits with debonair precision atop his purplish lips. He wears Ropers, jeans and long-sleeved striped shirts with snap buttons. On occasion he'll remove his baseball cap and put on a white straw hat with a modest crown.

Rogers runs about a third of the acreage his great-grandfather claimed 177 years ago. He works alone from before dawn until well after dark, six days a week, to bring about 600 head of cattle a year to market. He and Lisa live with their adopted eight-year-old son, Jake, in a small wood-frame house on a dirt road off FM 521, near the Fort Bend-Brazoria county line.

Rogers usually surveys his land in a rust-ravaged Toyota pickup with a back end held together with baling wire. But on a recent Sunday afternoon, he guides his wife's Ford Explorer east toward Oyster Creek, which flows through the heart of the ranch about two miles east of the Brazos. Following a narrow, uneven path in the alluvial prairie, past thickets of second-growth live oak and migrant Chinese tallow, Rogers points out the remains of rainwater cisterns built by Francis Bingham's slaves and the collapsed shell of a commissary that sold provisions to his father's field hands.

"Back in the old days," he says, "they had to have the water from the creek to run the gin house and the sugar mill. And they used to get the water for the old train that used to run through there hauling the sugarcane."

Rogers parks near his father's old dairy barn, now part of a deer lease, and motions toward the flat bank of the creek. "Used to be a spring that run right there when I was a boy," he says. "When it was hot, it would be something else to go there and drink that cool water."

Further along, the brush and tall hardwoods on the bank retreat to a mucky, ramplike clearing, where the cattle descend to the stream. Today, Oyster Creek's historic flow line -- marked by washed tree trunks, crags in the bank and vegetation flourishing in the rich bottomland -- is eight feet above the rainwater that has settled in shallow pools between elevations in the boggy creek bed.

 

"That water used to move," Lisa says with a mixture of sadness and disgust. "I could throw a line in for the fish and the current would take it away from me as far as I wanted it to."

Oyster Creek headwaters are north of Richmond, at Jones Creek, and it winds southeast 100 miles or so to the Intracoastal Waterway at Surfside Beach. The creek's path below Sienna Plantation, south to Angleton, squiggles through small farms and ranches and huge fields planted by inmates -- the Texas Department of Criminal Justice operates three prison farms along it. (The Darrington Unit is built on land that John Bingham sold to the state in 1912.)

For most of its modern life, Oyster Creek has flowed with storm water and agricultural runoff from farmland and rice fields to the north. The stream was also fed by Long Point Creek, which joins with the Oyster in the middle of Sienna Plantation.

But in the last 20 years, Oyster Creek has been manipulated beyond recognition by the suburban sprawl of Fort Bend County, one of the fastest-growing areas in the country.

In 1987, after an intense thunderstorm left water three feet deep in the streets of Sugar Land, the county launched a $20 million flood control program. Financed by tax-exempt bonds backed by the state, the county has removed thousands of acres of land from the Brazos River floodplain. More than a dozen levees have been built, rising like mossy-green fortresses. Man-made canals cleave the landscape, collecting water that used to find its own way into Oyster Creek and forcing it into places it had never been particularly inclined to go.

As Oyster Creek's water level dropped, the downstream flow slowed to a crawl. Deprived of their usual sources of replenishment, the natural springs receded, intensifying the effects of drought.

"Used to be," Dick Rogers says, "after every little rain, the creek would have water from then on because there're these ditches and little bayous that supported the creek. But it ain't like it was."

Indeed, the impact of Fort Bend's flood control program has been felt the length of the creek. Last year the Oyster, which receives discharges from about a dozen wastewater treatment plants, was placed on the state's list of waterways that no longer meet minimum water quality standards for recreational use.

While a study to determine the exact cause of the problem is pending, Woody Woodrow, a hydrologist with the Texas Parks and Wildlife Department, says the amount of water in a creek or stream is directly related to its suitability for swimming and fishing. Wastewater permits are issued after calculating the amount of pollutants to be discharged into the "receiving stream," Woodrow says. The more water in the receiving stream, the quicker the pollutants are diluted and the healthier the stream.

"What happens when you start diverting water out of the receiving stream?" Woodrow says. "All those calculations are based on water that's no longer there, and that causes all kinds of problems."


Lisa Rogers is 47 years old, short, with a waist-length platinum-blond ponytail and a Marlboro Red-cured drawl. She grew up not far from Houston's Hobby Airport when the area was mostly farmland. She got her first horse when she was five years old.

Lisa met Dick Rogers -- 20 years older, with three ex-wives -- at a cafe in Rosharon and was immediately impressed by his taste in boots and pickup trucks. "Some friends introduced us," she recalls. "He got to flirting right quick."

After they married in 1984, Lisa proved to be a tireless ranch hand who could rope calves, mend fences and handle a hay baler. She also had an eye for champion Blonde d'Aquitaine steers. The walls in their dining room are lined with awards Lisa has won at livestock shows around the state. Her love of cows seems, perhaps, a little obsessive in her kitchen. There are cow stickers on the cabinets, and on the wall are two inscribed panels -- "Bless the Whole Herd" and "Welcome to Udder Chaos." On the shelves are plates, cups, cookie jars, salt-and-pepper shakers, milk pitchers and sugar bowls decorated in the familiar black-and-white pattern of the Holstein dairy breed.

Affection for the gentle, lumbering cud-chewers is about the only honest reason for becoming a rancher, Lisa says. It's certainly not because it's lucrative, especially with a ranch as small as theirs. "Hillary Clinton is the only person I know of who ever made any money off cows," she says.

 

In 1996 Lisa was chasing after a loose calf when her horse stumbled, pitched her, then fell on top of her. Her preparations for back surgery turned up signs of liver disease. Though her back is healed, she's often tired and sick from the drugs she takes for the liver ailment, and is unable to work the ranch.

Since December, Lisa instead has been riding herd on the TNRCC, pressuring the agency to force the Sienna Plantation Levee Improvement District to restore the flow of Oyster Creek. She calls the agency once a week or more, and at least twice a month she pays an upstream visit to Sienna Plantation, where Oyster Creek enters through a sluice gate at the north wall of the levee and exits through another gate on the south wall.

On a recent morning, while Dick is baling a neighbor's hay, Lisa drives to Miller Road, which runs parallel to the south levee wall. She turns west and stops where Oyster Creek passes beneath Miller through four iron culverts. The levee gate is only about 2,000 feet upstream, but it's obvious no water of any significant quantity has passed this way in a while: The creek bed to the north is lost in dense overgrowth; two inches of rainwater are pooled around the culvert, but nothing is flowing through the pipes beneath the roadway. And the channel heading south toward their ranch is marked only by a tangled mass of vegetation.

Lisa drives over to Scanlan Road, a long stretch of dirt canopied by tall pecan trees and live oaks that cuts through the heart of Sienna Plantation. The land at Sienna was also settled by members of "The Old Three Hundred." But any similarities between the legacies of Francis Bingham and William Hall are purely accidents of history.

Described as "something of a blockhead" by Clarence Wharton, author of the 1939 History of Fort Bend County, Hall sold the property in the mid-1830s to J.D Waters, a farmer from South Carolina. Waters had a reputation for treating his mules better than his 500 slaves, whom he refused to feed anything more than corn mush. Once the richest man in Fort Bend County, Waters was ruined by the post-Civil War crash of the sugar market. Waters's debt-ridden widow sold the plantation for $50,000 to Thomas Pierce, a Yankee carpetbagger who flipped it a week later for $100,000 to T.W House, a banker and former mayor of Houston.

House's bank failed in 1908, and the plantation went to his largest creditor, T.H. Scanlan, another former Houston mayor. His seven unmarried daughters inherited the property and named it for Catherine of Siena, the patron saint of single women.

In 1937, after the city of Houston cut down their favorite oak tree, daughters Lillian and Stella Scanlan dismantled the family mansion on Main Street and moved it to Scanlan Road.

Restored during the early stages of Sienna Plantation's development, in 1997 the mansion served for a time as a marketing center where prospective buyers were subjected to evocative pitches like this one, found on the developer's Web page:

"Revering its ties to the past, Sienna is once again making history. New settlers are weaving plans for the future with a profound respect for the visionaries who nurtured the promise of Sienna Plantation."

Sienna's past seems to have been shaped less by visionaries than by opportunists, slave drivers and eccentrics, although Atlanta-based Fuqua Industries had grand plans when it bought the old plantation from the Scanlan estate in 1972. The company envisioned more than 20,000 homes, 6,000 apartment units and 283 acres of commercial development. It would take 20 years to complete and eventually would be home to 70,000 people, which, incredibly, was projected at the time to be a full quarter of the population of Fort Bend County in 2000.

Before any construction, the Sienna Plantation Levee Improvement District had to be formed in 1978 to erect a barrier between the land and the Brazos River. LIDs, similar to municipal utility districts, are political subdivisions of the state and can finance the development of raw land by selling tax-exempt revenue bonds.

Technical questions must be answered to design and build a levee. What is the land's natural drainage pattern? What is the capacity of nearby waterways to handle increased storm water? And, most important, what is the impact of sealing off land historically used to absorb floods? A poorly conceived levee can have enormous consequences for surrounding landowners, so a public hearing is required to gather input from interested parties.

It's clear from the record, however, that both the state and the LID took a narrow view of who might be interested in the Sienna levee. At the first public hearing in April 1980, a lawyer for a Brazoria County landowner complained that no one downstream of the levee had been told about the project. Indeed, the levee was to be built on top of Brazoria County, but the required public notice did not appear in any newspaper of that county. The meeting was adjourned for a month, presumably so those landowners could be notified.

 

Meanwhile, staff of the Texas Department of Water Resources -- the precursor to the TNRCC -- debated whether the LID would require a permit since the proposed levee was designed to divert water from Oyster Creek to the Brazos River. If the permit was required, public officials and landowners the length of Oyster Creek would need to be notified so they could comment.

When the hearing reconvened, however, there weren't any more downstream landowners present than at the first meeting. State engineers had conducted a "hydrological evaluation" that determined only people who lived within 2,000 feet south of the levee needed to be notified.

As for the permit, the LID engineers assured regulators that Oyster Creek would not be diverted unless Sienna Plantation was threatened by Brazos floodwaters. Otherwise, the LID stated in a formal letter, the creek's levee gates would stay open and "the proposed project will allow the entire flow of Oyster Creek…to remain in Oyster Creek."

The 15-foot-high levee, built for just under $10 million, was completed in September 1983. Six months later the Fort Bend County Drainage District provided flood control for a planned development north of Sienna. The drainage district widened and deepened the levee's external drainage channel from the Oyster Creek gate to the bottom of the levee, where it drains into the Brazos.

The county also dug a 1,000-foot ditch north of the levee that connected Oyster Creek and Long Point Creek, which flow parallel to each other until they join together in the middle of Sienna.

However, Fuqua's ambitious vision collapsed along with the real estate market in the mid-1980s. The company sold Sienna in 1995 for a reported $12 million. Two years later construction began on a 1,300-acre tract.

Meanwhile, ranchers like the Rogerses grew alarmed about the dwindling flow in Oyster Creek. But proving Sienna Plantation was the culprit, and doing something about it, seemed an impossible task for a rancher's wife in rural Brazoria County -- at least until Lisa Rogers bought a computer.


With a few clicks on the Internet, Lisa learned what four generations of Binghams had taken for granted: She and Dick have a legal right to the water in Oyster Creek. In Texas, surface water in creeks and rivers is owned by the state and can be used only with a TNRCC permit, with one exception: So-called domestic and livestock users, like the Rogerses, have a riparian right, meaning they don't need a permit to make "reasonable use" of state-owned water. Texas courts recognize the riparian doctrine as superior to any permitted rights. But because compliance is governed by the honor system, violations typically aren't discovered until someone downstream complains.

"There is no way the average person out here in Rosharon, Texas, would know all that," Lisa says. "If it hadn't a-been for my computer, I wouldn't have had any idea what to do and how to do it."

In October 1998 Lisa asked for a TNRCC investigation. Over the next five months, Rusty Evelo, from the agency's Houston office, visited Oyster Creek eight times, covering a 15-mile stretch of the stream from the levee south to her ranch. Evelo discovered that, contrary to the engineers' promise in 1980, the normal flow of the creek was diverted around Sienna Plantation and into the Brazos River.

For reasons that aren't clear, the TNRCC didn't act on Evelo's findings. Last summer Lisa took her complaint to state Senator J.E. "Buster" Brown's office, which prompted a second TNRCC investigation. Evelo paid two more visits and reconfirmed his findings. It didn't take him long to figure out why the downstream creek bed was still dry.

The ditch built north of the levee by Fort Bend County in the mid-1980s had all but depleted Long Point Creek, which normally would have fed into Oyster Creek. That diversion wouldn't have been a problem if not for what Evelo saw at the Oyster Creek floodgate: Not only was the gate closed, but the county had deepened the external drainage channel to the point where the gate was six to eight feet above the creek bed. Unless it somehow defied the laws of hydrology and began flowing uphill, Oyster Creek couldn't get through the gate. It was going around the levee into the Brazos.

 

Evelo also noticed that the creek in Sienna Plantation was thick with storm-water runoff, very little of it making it downstream. To collect water for a series of amenity lakes, the developer of a subdivision in Sienna's southeast corner had built three small dams that reduced Oyster Creek to a trickle through the south gate of the levee.

Based on Evelo's findings, the TNRCC determined that the levee district failed to comply with the plans approved in 1980, when the LID stated the gates would close only when the Brazos flooded. The agency also cited the LID for failing to get a permit before diverting Oyster Creek to the Brazos. The TNRCC gave the levee district 60 days to pay a $28,000 penalty and come up with an engineering plan to restore the downstream flow.

But in a letter to the TNRCC, the allegations were called "unfounded" by attorneys from Vinson & Elkins, the firm that has represented the three-member LID board since it was formed 23 years ago. They claimed the diversion was caused by "facilities that are neither owned, operated or constructed by the LID." In February the TNRCC withdrew its settlement offer and prepared to take the case to a state administrative law judge and, if necessary, state district court.

By May, two and a half years after her initial complaint, Lisa had lost her patience. With summer approaching, she e-mailed a scathing letter to the TNRCC, threatening to take the agency's inaction under former governor George W. Bush to the national media.

"Here's the deal," she wrote, "somebody, somewhere desperately needs to put water back in Oyster Creek before July 15, 2001…Shall we get 60 Minutes and Dateline and all the others involved? I am sure they would just love a story coming from the President's home state about how the Big Shot Developers are cutting off the struggling Ranchers and Farmers…I can just see the headlines now -- 'ONE OF TEXAS' ORIGINAL 300 FAMILIES PUT OUT OF BUSINESS BY FORT BEND COUNTY DEVELOPERS.'

"Enough is enough, folks, it's time to poop or get off the pot."


It's hard to know the impact Lisa's e-mail had. But within weeks, the LID and the state resumed negotiations. In mid-June the LID's engineers submitted a plan they say should restore the downstream flow.

Yet it's impossible not to conclude that until recently no one seemed to care that a few small ranchers in Brazoria County relied on Oyster Creek for their livelihood. There was never any dispute Oyster Creek was being diverted to the Brazos. Nor was there ever a question that the main cause was the channel expansion done by Fort Bend County in the 1980s. Yet after being notified of the alleged violations in December, the LID decided to fight the state's allegations.

"They did not want to sign any agreed order or pay any kind of penalty," says Dan Joyner, the TNRCC attorney. "They didn't want to put their names on anything that might even intimate they are liable."

Indeed, the LID's attorneys started pointing fingers, staking their position on technicalities they figured would legally absolve the LID if the matter went to court: The LID owned the external channel when the levee was built, but later conveyed the easement to Fort Bend County, which performed the work. Developers to the north of Sienna Plantation, who never built a house and are long gone now, paid for it. And the developer who built the dams reducing the flow did that work without the LID's knowledge.

Levee district attorneys, it seems, blame the state for not monitoring the situation, while the LID itself professes ignorance of work that was done inside its own $10 million levee.

Molly Cagle, a V&E lawyer for the levee district, even suggests that by making the allegations in the first place, the TNRCC is somehow responsible for delaying the solution.

"Sometimes your legal remedies are more trouble than they may be worth," she says, "particularly if you have willing and cooperative entities that say, 'Look, I don't know who was asleep at the wheel, but why don't we just come up with a solution,' and hopefully that's where we are now."

The LID has attempted to shift most of the blame for the problem onto the Fort Bend County Drainage District, which has broad authority to undertake flood control measures. Dan Gerkin, the drainage district's chief engineer, makes no apologies. He says his department's job is to keep water away from the county's residents, not make sure Brazoria County cattle are watered. Indeed, when asked about the impact downstream of the channel expansion, Gerkin didn't seem to know too much about it.

 

"We get [our] information from the levee improvement district," Gerkin said.

There is ample evidence the LID knew the county eventually would deepen the external channel. The original levee plans, submitted and approved 20 years ago, explicitly mentioned the need for a channel expansion. And in a July 1984 letter to the drainage district, the LID's former engineer acknowledged that he had met with the contractors who were to do the work.

"We have provided them with a complete set of our construction plans," the letter said. "We also learned from these meetings that construction of the enlargement would occur in the near future."

Cagle compares what happened to the external channel to a homeowner who builds a driveway only to have the state come along and widen the road. "You put your driveway where your drawings said you would," Cagle says, "but you have neither the control nor the right to object to the fact they widened the highway at your spot in the road."

This analogy seems to ignore that the state doesn't suddenly widen roads in the middle of the night, an assumption that's necessary if Cagle's argument is to hold water. Cagle acknowledges that the TNRCC investigator found the north gate closed because the channel expansion rendered it useless. Her surprising admission suggests the LID knew, perhaps as soon as the day after the channel expansion, that Oyster Creek wasn't flowing through Sienna Plantation -- yet didn't alert anyone to the problem. Cagle says that wasn't the LID's job.

"Sure, somebody should have noticed it 15, 16 years ago," Cagle says.

"But that would have been a pretty significant jurisdictional divestiture to give a LID that obligation, much less that responsibility. We have a state agency who is responsible for protecting downstream landowners from people doing funny business in water courses of the state."

But James Mirabal, the TNRCC's lead engineer for levee projects, says the state never enforces such violations until someone complains. Mirabal says the agency doesn't have the resources to make the necessary inspections. Indeed, when the Sienna Plantation levee was approved 20 years ago, Mirabal was a member of a team of levee inspectors; now he's a one-man crew.

"Not too many levee districts are being formed now," Mirabal explains. "We went from one application a month to one every two years, so our focus and direction has changed. We put ourselves out of business, I guess."

After 20 years of little or no levee oversight by either the LID or the TNRCC, can Oyster Creek recover? State engineers now have the LID's plan. It proposes to restore the flow of Long Point Creek to where it joins Oyster Creek; remove silt and debris clogging the Oyster at various points inside the levee; and lower the developer's dams near the south gate to increase the creek's flow.

It is uncertain how quickly work could begin. TNRCC attorney Joyner says he's still researching whether Fort Bend County will need a permit -- more than a decade after the fact -- for the channel-widening that diverted Oyster Creek to the Brazos. The LID also may need the permits the state said it didn't need in 1980.

Joyner, who describes the permit process as "god-awful," says there is no guarantee the permits will be approved. Such permits are granted only when it is determined there is enough water in the stream -- and the Rogerses and other downstream landowners have the first legal right to the water in Oyster Creek.

"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.

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."


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