Slowly but surely Dallas is turning the Trinity River into what should be re-named either The Rogue River or The Mad River — the one river in America not subject to the same laws that govern every other river, harbor and waterway in the country. In fact, maybe not even subject to the laws of nature.
It’s so bizarre. Gives me the willies. This is about that thing they call the “white water feature.”
The “white water feature,” if you don’t already know, is a manmade, make-believe, Colorado-style fake rapids the city built five years ago on the Trinity River, so badly designed, bollixed up and dangerous to life and limb that it had to be closed to navigation the same day it was opened to the public. It lasted not one day.
For five years it’s been sitting out there in the river like a spilled 18-wheeler load of concrete, making downstream navigation dangerous and upstream navigation by motorized fishing boats impossible.
OK, this next part is so far beyond belief, even for me, a native citizen of the Land of Beyond Belief, that I need to catch my breath and pace myself so I don’t hyperventilate and have a heart attack just trying to spit it out:
At the end of last week I told you about a big eruption at City Hall in which it was revealed for the first time that the city is in some kind of major back-against-the-wall, blow-up show-down with the U.S. Army Corps of Engineers (USACE) over the Stupid White Water Feature (SWWF). In order to set the full stage, we need to take a little side jaunt into American history.
Before anybody thought of rivers as recreational resources, they were major arms of national commerce and defense. In the stately language of 19th century American law, Section 10 of the Rivers and Harbors Act of 1899 protects any “wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States” from any construction not approved by the secretary of the Army. That’s how this stuff winds up under the aegis the Corps.
The Corps considers one of its most important duties the protection of the “navigability” of rivers. Navigability is the ability of boats to go down rivers. And up.
I recently reread Mark Twain’s wonderful 1883 memoir of his youthful career as a Mississippi river boat pilot and pilot trainee before the Civil War. Just think if, back then, navigability had only included going downstream, not up. Twain and all those other colorful Mississippi pilots would have expired somewhere out on the vast reaches of the Gulf of Mexico after their first trip. Yes, one of the principles that made this country what it is today is that boats always had to be able to get back up the river after going down.
This is the principle that Dallas city officials want to abrogate. Not the down. Only the up. They want the concept of navigability to be changed by law, just for the Trinity River near Dallas. Down only.
There is actually an explanation, although it’s scarily crazy. Last week the city attorney’s staff ambushed the City Council in a closed-door session, telling them for the first time that the council had to approve spending $3 to $5 million within five hours — five hours! — to fix the SWWF or the Corps of Engineers might yank major permits underlying the entire drinking, storm-water and sewage treatment system for the city. Shut the city down, in other words.
Some council members in that meeting thought the city’s lawyers were bluffing them, trying to get them to hurry up and sign a $5 million check to fix the SWWF. There may have been some of that going on, but I actually have seen an email dated January 5 of this year in which Sarah Standifer, director of Trinity Watershed Management, a division of the city, warned other city officials about a recent meeting with the Corps.
Standifer told the others at City Hall that Corps officials had warned her and City Manager A.C. Gonzalez recently about serious compliance problems with the SWWF. Standifer said the Corps had told her and the city manager that failure to get the SWWF back into compliance with federal regs would “put all of the city’s permitting in jeopardy if not addressed immediately.”
All of the city’s permitting? All of the city’s permitting! Wait. They’re talking about something called 404 permits. The 404 permits, in fact, do cover the entire water system. So maybe the city’s lawyers were telling the truth. Maybe the city really was in danger of everybody having to drink bottled water and go to the bathroom in buckets for who knows how long.
But over the SWWF? Come on. The Corps let New Orleans build an entire levee system out of Play-Doh. And they’re going to kill us over a fake rapids?
Yes. Maybe. Specifically in terms of the SWWF, it’s the up issue. The city spent huge sums of money — I can’t figure out yet exactly how much but it could be seven figures — trying to come up with a design to fix the SWWF.
When the Corps looked at the proposed fix, they said it only fixed downstream navigation. It would still be impossible for fishermen in small motorboats to get back upstream past the SWWF — something they had been able to do before the SWWF was dumped into the river.
At first the city argued that nobody really wants to go upriver in Dallas. Could that be true? Wouldn’t that say something sort of weird about us? Like, “I’m going down the Trinity now. Nice knowing you!”
But the Corps said no, (implied word probably not actually said by Corps) assholes, navigation is two-way, up and down. That’s federal law since 1899, and also sort of ancient common law, plus probably a basic rule of nature or something.
Now we get into Really Unbelievable Land.
At the end of the week, at least a couple major bundles of City Hall email correspondence on this issue were released to the council. One bundle apparently was covered with all kinds of dire warnings from the city attorney to the effect that any unauthorized person who read the emails would die a horrible death from pestilence, but the second one, which I received from multiple sources, carried no such prohibition or warning. I read the shit out of that one, and so far I haven’t broken out in hives or piles.
In the un-hexed email bundle, I came across multiple references to a staff scheme to get Congress to exempt the Trinity River from the up thing in national navigability law. For example, John Reynolds, a project manager whose duties include the SWWF, sent a bullet list of possible strategies to top city officials, the first of which was, “Could request to change the law and have the navigability requirement for the Trinity River between here and Ft. [sic] Worth be removed.”
As a helpful afterthought, Reynolds appended the remark, “requires congressional action to change the law.”
Yes, indeed. It does. But, listen. You may think that requirement — congressional action to change the law — makes Reynold’s suggestion ridiculous. Obviously the U.S. Congress isn’t going to exempt one river from laws governing every other river in the nation.
Not obviously. Not obviously at all. In fact city officials probably leaped to that thought because it has been so easy for them to get federal exemptions in the past. Six years ago they talked then Texas Senator Kay Hutchison into sticking a last-minute rider on a national defense spending bill exempting the Trinity River from a whole host of permitting requirements dealing with “unnecessary damage to a publicly owned park, recreation area, wildlife or waterfowl refuge, or land of a historic site.”
Later, Dallas Congresswoman Eddie Bernice Johnson helped out by getting the Trinity exempted from other nettlesome federal protections for historic sites. Now, thanks to Hutchison and Johnson, we can damage the crap out of all that stuff with our river, and nobody can touch us.
I emailed the city manager, Standifer, Reynolds and others whose names I had seen in the emails associated with the congressional strategy on navigability and asked them two things: How far had this idea progressed, and when did they plan on mentioning it to the City Council? This way of doing things, after all, is such a clear portrait of how the city manager system really works at City Hall.
The staff never intended to mention it to the council, I am sure, because they don’t really care what the council thinks about it. This is all intended to be cheek-tweaking, pinch-bottom hugger-muggery between top city staff and their favorite moneyed and powerful special interests, the ones who were behind the SWWF in the first place. It’s their joint plan to get to Congress, get the law changed and once again give the Corps the bird.
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The Corps probably saw or smelled this coming. Hence, the showdown. Oh, almost forgot: The city birds never replied to my whistles.
At the end of the week, I talked with City Council member Scott Griggs, who said navigability is really a leading indicator of the overall health and viability of the river. Anything that impedes navigability, he said, also impedes the flow of water.
Griggs called the staff’s handling of the SWWF issue so far, “an egregious abuse of responsibility and duty to both the City Council and the people of Dallas. The City Council should have been made timely aware of these issues. It’s fundamentally such a serious policy decision. It relates directly to safety and the risk of flooding.”
I never know at these moments whether to be dumbstruck or just remain dumb. Eliminate the requirement that navigability go both ways, down the river and back up? Only down. Just for us. OK. What’s next? The laws of gravity? I really don’t know what they can get away with anymore. Excuse me while I go outside and tie my car to a tree.