This Sand is Your Sand

We have the third-longest coastline in the continental United States. Our beaches represent an $11.5 billion industry, employ directly and indirectly approximately 200,000 people, and Texas, because of our historic 1959 Open Beaches Act, is the only state in the union that does not have private beaches. The people of Texas own our beaches and can walk on our beaches.
--General Land Office Commissioner

David Dewhurst

Ellis Pickett stands in the open doorway of a foully overtaxed Porta-Can perched on a plank dune walkover at Surfside Beach, propping the door open with his foot, aiming the glare-shrouded lens of his Nikon at the interior, stirring shit up.

"They haven't cleaned this in weeks."

There's a soda can in there, beside the plastic seat. He took a picture of the same soda can the week before, on the most recent of his obsessive rounds photographing the Texas coastline. Pickett--a Liberty resident by circumstance, home oxygen equipment salesman by trade, aging surfer by instinct, and environmental activist by temperament--doesn't take pictures of pretty sunsets. Pickett uses his camera to document the oceanic minutiae that tell the story of how, when, where, and why the beaches he loves are going all to hell.

The rear cab of his Ford F-150 is weighted with thousands of 35mm color prints, and the Porta-Can series is just the tiniest tile in the mosaic: The village of Surfside charges an annual $8 fee--one of the heftiest prices in the state--to drive on its beach, and that money is dedicated by law to the village's beach-maintenance fund. So why the hell, Pickett wants to know, can't the village maintain a decent public toilet at the most popular dune walkover in town?

Given the fact that Surfside is famed--to the limited extent that it is famed at all--for the best surf on the upper Texas coast, and given the fact that Surfside's volunteer mayor owns and operates a surf shop, and given the fact that this particular walkover is the point of entry of choice for the thousands of surfers who come here every year to surf and presumably spend, given all this, the shitty stall is a mystery to Pickett. But there are conundrums up and down this coast, and all he has is all day, so Pickett takes the picture, and the tour continues, down the walkover and onto the beach where the Octagon used to be.

"Meet at the Octagon" was all the planning necessary for decades' worth of surfer congregations in Surfside. The misnamed house's six-sided shell was a landmark situated at a sort of surfer's ground zero. Parallel lines of breakers extend into the gulf, and most days the sandbars sprout modest swells, but in heavy weather especially the surf builds long and clean.

Surfers still know the spot, still meet "at the Octagon," but the Octagon is gone. After 1998, when Tropical Storm Frances whittled 60-foot chunks off the coast in Surfside, the Octagon entered its death throes, stranded on the beach. Earlier this year, its roof began to collapse. Village officials finally circled the pilings with barbed wire, drove a fire truck onto the beach to knock down what was still standing, set the remains on fire, and left them to burn for three days and nights while the tide washed around them.

Ellis Pickett spends entire afternoons on this piece of beach, picking up shards of glass, rusty nails and wire, pieces of stove, asbestos shingling, whatever didn't burn. Stand where the Octagon once stood and give your eyes a moment to adjust to the bright, and the half-buried detritus comes into focus everywhere. There's a plastic trunk full of it in the bed of his truck, and the hell of it is, it should never have been there. Never would have been there if anyone were enforcing the Open Beaches Act, which requires, among its thicket of regulations, the removal, at owner expense, of houses stranded on the beach by erosion.

But the Open Beaches Act, as Pickett reads it, as in fact it is written, is no less threatened with erosion than the sandy public easement it was designed to maintain, unobstructed and hazard-free. Ellis Pickett can't snap a shutter in Surfside--with its abandoned homes standing in the surf, its rental properties seaward of the dunes, its privately constructed concrete bulkheads, its chunks of rebar-threaded concrete riprap on the beach, its "Private Property" signs, its city sewer connections laid through the dunes to tottering houses--without documenting another violation.

It's ugly work, but he thinks people ought to see this. If they see it, he suspects, they'll begin to realize what they're losing, and they'll start wondering to whom or what they're losing it, and once they start figuring that out, Pickett thinks, they'll be as pissed off as he is.

Third-term Surfside Mayor Larry Davison--his name, title, and City Hall phone number have been scribbled on the Porta-Can's wall by some disgruntled visitor--has seen Pickett's photographs of seeping septic tanks and hazards on the beach, and he's pissed off just fine. He didn't like the way members of the nonprofit environmental Surfrider Foundation, whose 2-year-old Houston chapter is chaired by Pickett, dressed up in toxic-hazard suits after the Octagon demolition and photographed children playing in the sand littered with broken glass.

"If there's debris on the beach," Davison says, "go pick it up."

Neither does he like Surfrider's sensationalism. The rental-home owners in town, Davison says, hate Pickett's guts for posting his photographs on the Surfrider Web site (www.surfrider.org/texas/index.html). All the trash and seepage and riprap make Surfside look like it looks, which is crappy, and that's no good for the beach-house rental business, and what's no good for the beach-house rental business is certainly no good for the village of Surfside, whose permanent population hovers around 600.

What is Ellis Pickett doing, Davison wants to know, to help? Yes, it was Surfrider that last year donated the labor to erect dune-building sand fences on a reconstructed dune line behind Beach Drive's front row of houses, and yes, Surfrider adopted a section of beach in 1998 under Surfside's adopt-a-beach program, but because of Pickett's "attack mentality," Surfside won't support anything Surfrider does anymore. Even the good stuff.

Pickett, Davison says, is an extremist, and his harassment of the state agencies responsible for oversight of the Open Beaches Act has cost the Surfriders what credibility they may have once hoped to gain.

Davison, a member in standing of the surfing community, accuses Surfrider, with 40 international chapters and a U.S. membership of 25,000, of myopic special interest, and he is frustrated.

"These guys are concerned with 50 feet of the beach. I've got four miles."

--Texas Open Beaches Act

Texas has 367 miles of coastline. John Arrington owns a few feet of that in Galveston, and though he's an affable, grandfatherly man who doesn't seem capable of a grudge, he sits heavily on the opposite side of whatever sand fence Ellis Pickett may care to build.

Arrington calls Pickett a "retreatist," a pet dismissal he applies liberally to any person or organization that might study a historically eroding beach line and decide that the best thing to do is move away from it. Twenty-five years as a beachfront property owner have taught him to fight for his land, and 25 years of both gradual and catastrophic erosion have taught him that something needs to be done to protect his house. The confidence of a home builder and an almost touching faith in the limitless grasp of human engineering have convinced him that there's something to be done.

In 1978, then-Attorney General Jim Mattox sued John Arrington for removal of his beach house under the Open Beaches Act, and still it stands. Arrington sued back, arguing that having to remove his house would constitute an unconstitutional "taking" of his property without compensation. The court found otherwise. Arrington argued that the Open Beaches Act "imposed" an easement across his property. The court replied that the "rolling easement" that applied to coastal properties preceded the Open Beaches Act back into common-law days, well before it was specified in Arrington's title deed. Arrington has appealed. The case drags on.

Sitting behind the desk in a cramped add-on command center at his home near Houston's Hobby Airport, Arrington locates documents and reports and surveys and letters organized in boxes and files that loom toward the ceiling.

Here is a wealth of information on all sorts of erosion-response technology deployed around the globe: breakwaters, T-head groins, sand renourishment, etc. Here are 20-year-old studies of possible offshore sand deposits. Here are engineering reports attempting to apply percentages of responsibility to various erosion factors at each and every geological circumstance on the shore.

If you look through all this, Arrington says, and you see what the facts are, you'll see the answer. What you do is this: To protect the houses, you stop erosion. To give the public its beach, you build it a new one.

Arrington is not alone in this conviction. The West Galveston Island Property Owners Association, of which Arrington is a member, has recommended action including more studies to identify sand deposits for beach nourishment, a feasibility study of offshore breakwaters, and placement of dredged channel material on beaches, at a "guesstimation" cost of $735,000, which is just study money, to be paid for, theoretically, by some combination of state and national grants.

The Galveston County Beach Erosion Task Force--a surprisingly fleet committee composed of representatives from the county, the city of Galveston, the Galveston park board of trustees, and the city of Jamaica Beach--has the same horizon in view.

The county's task force representative, Tesa Duffy, says the organization's mission is to "find funding" for solutions to beach erosion and "form coalitions" to make things happen.

The task force has already commissioned and received a plan from the Corpus Christi engineering firm of Shiner, Moseley and Associates. The plan is basically a study of previous studies, but its recommended options, which the task force has submitted to the state for funding consideration, include mostly beach renourishment and offshore breakwaters.

Geotubes, huge textile socks pumped full of sand and buried on the beach as stopgap dunes, have already been installed in key locations of Bolivar Peninsula, Pirate's Beach, and Treasure Island, despite the fact that they are illegal under Open Beaches Act regulations.

Surfside is too small, too unorganized, and too poor to have taken the lead on such projects, but the non-Surfriders in town are eager to follow Galveston's example.

Russell Clinton, whose mother lived on the beach in Surfside, now owns three threatened front-row Surfside houses, and if the battle of ideas is between retreat and beating erosion, he wants to beat erosion. Beach nourishment, breakwaters, geotubes--they all sound good to him. He's in for the long haul, having already spent $7,000 post-Frances to connect, through the dunes, to the city sewer line after his septic tanks washed out in the surge, and he thinks someone else--the state, the feds, somebody--should pick up the millions of dollars of slack for the rest of it, especially since Russell Clinton sees himself not as an idiot for buying on the sand, but as a victim.

Clinton is a victim, he says, of state and federal erosion-response structures--jetties, dredgings, river-mouth movings--that amplify erosion of his beach, and so those state and federal organizations should solve Russell Clinton's erosion problems with breakwaters and geotubes to focus the erosion elsewhere.

Ellis Pickett and the Surfriders--surfers in general--are a mere nuisance to Clinton, who gave up his longboard when he grew up. They're interested only in their little surfer spot, and what's a grown man doing still surfing with the kids anyway?

"They're a step above bikers," he says. "They're definitely not golfers or tennis players. There is a drug infrastructure there. They're not my kind of people. "

But the bigger problem is the General Land Office. All Clinton's dream projects funnel, sooner or later, through the GLO, and the GLO has been glacial out of the gate in the race for federal funds, without which there will be only future studies studying this year's studies and fishing for grants to cover the rent on the warehouse it will take to store them all.

--Texas Open Beaches Act

The General Land Office is a diaspora of regional outposts webbed to a gray warren of cubicled offices in the Stephen F. Austin building in the state capital. In broad outline, the agency stewards the 3 percent of Texas lands that are public and performs a bureaucratic infinity of associated functions, from oil-spill response planning to the archiving of 200-year-old land grants. It does so with a statewide staff of just more than 500 and a commissioner elected to a four-year term--commissioners who traditionally have viewed the seat as a viable stepping stone toward the governorship.

Republican David Dewhurst was elected to the post in November 1998, two months after Tropical Storm Frances washed out septic tanks and undercut foundations from Bryan Beach to Bolivar. Dewhurst's General Land Office, which is charged with oversight of the Open Beaches Act, compiled a list of 107 homes in apparent violation and handed the list to the office of Republican Attorney General John Cornyn, which is charged with enforcing the act.

By that time, three of the houses had collapsed and were eventually removed with public money. One, in Galveston, constituted what the attorney general saw as a "substantial" blockage of public access and is presently in litigation. Cornyn took a pass on the remaining 103 houses, 34 of which are in Surfside, and issued a press release explaining his position: "Texas Attorney General John Cornyn today announced a new enforcement policy regarding homes located on Texas beaches as a result of natural erosion. Of the 103 properties attached to this press release, none of them will be removed under the new enforcement policy at this time."

At GLO headquarters in Austin, the tidal pulls of clashing ideologies hang in the cubicles like a fluorescent fog. Staff members won't say it out loud--and the agency's public-information man stands ready to steer conversation away from feelings and back to facts--but it's clear enough that feelings, at least, are hurt.

By making the referral in the first place, the GLO became the bad cop in the eyes of beachfront homeowners. By declining to "strictly and vigorously" enforce the violations, the attorney general became the good cop.

Ellis Pickett is screaming that the state won't enforce its own laws. Russell Clinton is screaming that the GLO managed to finally pass a beach fund appropriation only last legislative session, and only 15 million seed dollars at that, long after "coastal" cities like Chicago were raking in millions of federal dollars for erosion response. And John Arrington is screaming that there are mounds of sand out there if the GLO would just get off its ass and go get it and dump it on his beach, but the GLO won't, because the GLO is a retreatist agency, and it wants John Arrington's house gone.

Then there's the Galveston County Task Force, pushing ahead with geotubes and breakwater engineering studies--all anathema to GLO regs--because no one has stopped it.

But without an attorney general willing to enforce, the GLO is hog-tied and subject to whatever rock any disgruntled beachgoer cares to throw.

Never mind that Dewhurst is the first commissioner in the history of the office to get any kind of beach money appropriation through the legislature; never mind that he made the referrals required of him by duty and law.

But if Dewhurst's land office has been overly targeted as a source of beach ills, Dewhurst himself hasn't helped matters, because no one can tell just exactly where he stands. On one hand he referred 107 houses at once to the attorney general, which suggests a certain zealotry. On the other hand he is amenable to compromises such as one-time tax abatements for property owners who voluntarily move their beachfront homes landward and tax deductions for charitable contributions of beachfront property to the state.

He is "frustrated for" and "sensitive to" the people whose houses end up on the beach, but he's sitting on a code with hundreds of years of precedent saying they can't be there.

There are, he thinks, four competitive courses of action.

There is the enforcement of existing law by the attorney general, on the present effectiveness of which Dewhurst carefully avoids comment.

There is "urging the Legislature to look at the possibility of a one-time appropriation in the smallest amount possible, which would solve the problem of homes on beaches" through financial subsidies.

Then there is "the third option, and it's the most difficult technically, and it's the most expensive, to encourage the Legislature to dramatically increase the next biennium's appropriation under the Coastal Erosion Planning and Response Act, in order to virtually rebuild our beaches."

And finally this: "To have the support from not only people living on the coast but throughout the state to urge the Legislature to look at the balance between private property rights and the legal requirement for open access to our beaches."

Dewhurst says that he has found some "sympathy" for this last idea, but also "a concern by some of the coastal legislators to open up the Open Beaches Act to debate, 41 years after it was enacted," and asks a reporter for "any help that you could provide in encouraging people to either contact me or their legislators and let me know what they're thinking in this area."

If Dewhurst is preoccupied with consensus it is likely because he is an elected and potentially electable official, as is Cornyn. If George W. Bush becomes president, Lt. Gov. Rick Perry will ascend the throne, leaving his own seat warm for any number of seekers, which might well include David Dewhurst and John Cornyn.

Jamie Mitchell works for Ralph Nader's Public Citizen office in Austin, but he was the GLO's beach and dune man under Democratic Commissioner Garry Mauro, and he sees where this line of thinking is headed.

"My fear is [that] land commissioner Dewhurst is saying...'I don't agree with the law. I have to do this.' So 103 people become outraged, go to their legislators coming up next spring, and say, 'We need to do something about this Open Beaches Act.' So now they're all organized with money behind them, and he gets off the hook. I'm very scared that they're using this as a pawn to say, 'I'm enforcing the law; the AG isn't. Gee, maybe we need to change the law.'

"Millions of Texans that go to the beach every year, they're not aware of the Open Beaches Act, that houses out on the beach don't belong there. And they're not saying anything, they're not contacting their legislators, they're not contacting the press, they're not contacting the Land Office or the attorney general. If the public knew more, you'd see a backlash."

--Federal Emergency Management Agency press release, June 27

Former state Sen. Babe Schwartz, sitting in his sleek high-rise suite overlooking the state capitol, says he'll be happy to join a backlash.

"I'm gonna bring people up here with babies and bathing suits and fishing rods and talk about how these folks are treated when they try to access the beach through these people's quote-unquote private property."

Schwartz is Galveston-born and -bred, an increasingly occasional septuagenarian surfer, former lifeguard, former legislator, lobbyist, and long-term conscience of the Open Beaches Act, which was passed in 1959.

He is a nemesis of engineered coastal erosion response; his Galveston weekend home is on the bay side; he speaks populist with a fluency granted only to the very rich and the very poor, and he is not very poor.

"There was never a session that I was in the Senate that I didn't chair a committee of some kind about the beaches and the bays and the coastal environment that I didn't have to listen to John Arrington and a hundred people like him. And they would have always changed the law if they had been able to do it. There was never a time they would not have changed the law so that somebody who invests in a piece of property precludes forever any other human being who lives on the face of the planet from having any rights or access to that water in front of their house. They will lie to you in a minute about whether that's their intention or not. Their attack this very day would be to try to make this a property rights issue, as opposed to a public rights issue. John Arrington is as nice a man as you'd ever want to meet, but he does not know shit from sand."

Commissioner Dewhurst, Schwartz thinks, deserves a gold medal for squeezing a $15 million appropriation out of the Legislature, and neither Dewhurst nor Cornyn is practicing any evil greater than plain old politics. The real enemies of the Open Beaches Act, he says, are the beachfront property owners.

"I am enthusiastically for beach renourishment if the money is there. But we can't just replenish the beach in front of Sea Escape and the beach in front of Pirate's Beach because people live there and they have million-dollar homes. You've either got to replenish the whole beach or nothing...I don't understand the selfish idea that 'I'm entitled to it, the hell with everybody else.'"

Jim Gibeaut, a coastal geologist with UT's Bureau of Economic Geology, computes shoreline rate changes for the GLO, has searched for sand sources, and is referred to as an invaluable source by threatened homeowners and disgruntled surfers alike, though the two camps discriminatingly pick and choose their facts from his arsenal.

The root issue, for a majority of Texas' coastline, is erosion. Slowly, sea levels are rising. Barrier islands by their nature roll over themselves, shore side shrinking as bay side grows. Sand will naturally migrate away from one place, and the maintenance of healthy beaches requires a return migration of sand from elsewhere. Texas' major rivers were one such sand source, but as ancient deltas developed into bay systems, river sand dropped into the bays, not onto the beaches. More recently, in the past 100 years or so, the Sabine, the Trinity, the San Jacinto, the Colorado, the Brazos, and the Rio Grande have all been dammed, and sand piles up behind dams. Some say that changes wrought in the Mississippi River delta by the Army Corps of Engineers constitute Texas' biggest sand source suck of all: To minimize the need for dredging the Gulf Coast's largest port, the Corps built jetties to channel river sand and silt out into deep water, where it builds underwater mountains offshore instead of drifting south toward Texas.

Rock groins are designed to catch and accrete beach sand. Seawalls deflect amplified waves down and around their edges, scouring the unprotected beach. Any hard structure that can be built or dropped on the beach will, to one extent or another, protect that which it is built or dropped in front of, but it will do so at the expense of any surrounding beach not so armored. That, along with access impediment, is why hard structures on the beach are prohibited by the Open Beaches Act.

Dumped Christmas trees are good, though. They collect sand and help build dunes.

Breakwaters, Gibeaut says, very simply protect homes and destroy beaches. You cannot engineer a hard structure, he says, that works any other way.

Gibeaut is familiar with John Arrington's argument that there are plenty of sand sources to renourish Texas beaches, but says Arrington is just wrong.

"We've already picked the low-hanging fruit," he says. There is sand, but unless it happens to be close to where it's needed, transport becomes the money issue, and since beach nourishment needs to be repeated every five years to be effective, you have to justify the economics of a permanent, ongoing multimillion-dollar investment. And when the issue is a few hundred private beachfront houses, you can't.

If you want to save houses, Gibeaut says, build walls.

But if you want to save the public beach, he says, there's really only one thing for it: You have to enforce the Open Beaches Act.

--Jamie Mitchell, Public Citizen, Austin

Surfside is a friendly, homey community of beach people symbiotic with an itinerant and seasonal tourist population. Surfers walk into Kitty's Purple Cow cafe shirtless and wet for burgers and are greeted heartily; the most expensive element of any citizen's wardrobe is unfailingly her sunglasses.

But clinging to the ass end of Texas Highway 332, hammered between the industrial landscape of Freeport and a receding southern exposure of which the Octagon is not likely the final victim, Surfside is subject to nearly every erosion factor imaginable, and front-line property owners continue to employ uncoordinated and stopgap measures--steel bulkheads, concrete retaining walls, rock piles--to protect their own hundred feet of investment from the waves.

There are inevitably storms, just making things worse. And it's the destructive events, like 1998's Frances, a meteorologically minor tropical storm, that bring matters in Surfside and up and down the Texas coast to a head. That's when entire dune systems get washed out and acres of beach disappear overnight, leaving houses crippled on the sand, where the law says they're no longer allowed to be. That's when the accusations and the resentments and the recriminations and the competing motivations surge.

Longtime local Norma Hamby used to clean beach houses in Surfside for her living, and now she runs a Web site called Give Our Beaches Back (ssopenbch.virtualave.net) that parallels Pickett's complaints. When Hamby says to give the beaches back, she means back to the state. Too much local control has equaled too many violations of the Open Beaches Act. Larry Davison and Surfside's City Council--volunteers all--are the bad guys, she says. Surfside uses its beach user fees to fund the local police department, not to maintain the beach. Even the local beach-dune laws are a joke. The Surfriders helped put up that sand fence, but it's behind the front row of houses, and renters have to take sections down to cross the dunes to their temporary homes. The front-row sewer connections had to be a crooked deal somewhere down the line, she figures, but then Hamby is the sort who sees crooked deals lurking behind every bush.

"You know what it's like here? You can buy a vote for a six-pack."

Hamby is tired of the fight and recently moved out of Surfside.

Gene and Rachel Gore are just settling in, still remodeling the stilted house, situated well back from the beach, they bought three years ago.

Gene and Rachel were married in Surfside's surf, Gene makes custom longboards out of a shop on their lot, and both surf before, during, and after lunch.

"It's a multidimensional problem," Gene says, "and nobody wants to take responsibility for it."

Surfside certainly can't take it. Trash pickup in the village is one elderly lady on the city payroll, walking around all day with a 5-gallon bucket.

The GLO can't, not without the attorney general behind it.

Into this void rush homeowners, pushing for breakwaters and geotubes and millions upon millions of dollars' worth of sand. Everyone wants more sand, but the idea of a breakwater is too much for Rachel Gore.

"It's insane. It won't be the ocean anymore. If we wanted to look out there and see concrete, we'd move to Houston."

If anyone tries to build a breakwater, Gene says, he'll drive the class-action lawsuit to stop it.

"If I was on the sand, I wouldn't want to lose my house, but that beach is there for so many more people. We would remove our house and leave. It's the only ethical thing to do."

That's not what the owners of the Clark house, which has been straddling the public beach just north of the Freeport jetty for some 20 years, chose to do.

When Ellis Pickett's tour reaches the Clark house, the camera comes out again. The house is abandoned, windows boarded up, badly weathered, but the door flaps open at the top of a long stair. Kids run around the house and rest in its shade. That it has outlasted the Octagon, despite being farther out, is just another mystery, but whatever combination of breakwaters and beach nourishment might conceivably save it won't arrive in time.

"I was a senator 20 years ago," says Pickett fan Babe Schwartz. "I used to have to go to Surfside and meet with those people. And I told them, I said, 'What do you goddamn people think is going to happen? Who is going to come down here and save you at the expense of the folks paying sales taxes on their kids' school clothes in Freeport? The guy who works at Dow?' But I know as sure as I'm sitting here that these people got a death penalty on their structures, and all I got to do is wait for Mother Nature."