Up the Crick

Springtime in Deep Ellum, on a Friday night in 1998. An otherwise average night except for the noise coming from the street--a heavy machine-operated clamor that pounds its way into the loft above the art deco store at 2825 Commerce St.

Justin Burgess is in that loft, waiting for sleep to come, too tired to drive home after a long day at Deco-Dence, the art deco home-design store he owns. So he'll spend the night in the office loft, which he leases. But now he rises from

his chair and looks out the window. Below him are employees of the city of Dallas. They've uncovered a sewer manhole on his side of Commerce and Malcolm X Boulevard. A hose has slid its way well beneath the street and is sucking vigorously at whatever it's found, with the help of a throbbing Roto-Rooter. Burgess heads downstairs.

Burgess is a prim man, not prissy so much as he is precise. Studied. Tall and thin. But standing next to the guys from the city, Burgess is disgusted. Rising from the manhole, with excrement floating in it, is a greasy pool of water. The water's risen to nearly street level. The grease is glistening, and the smell--the smell is too much to bear. Burgess is told Deep Ellum's sewer lines have backed up once again.

"See that?" yells one guy from the city, pointing at the water and all it contains.

Burgess can only nod his head.

"You should never see this water," the guy yells, the Roto-Rooter loud as ever. The sewer lines are some six feet below ground. When you look into a manhole, the guy from the city says, "it should just be dark."

Springtime in Deep Ellum, on a Friday night in 2004.

Cantina Dallas is Santiago Pena's "baby." The restaurant on Main Street has been open for six weeks, and like any newborn, it needs nurturing. So Pena, the owner, has stayed late, so late it's now Saturday morning. Pena's grown used to this schedule.

His restaurant is connected to the sewer main at the back of the building, in an alley. It's 12:30 a.m. when Pena notices the greasy water--and more--that's made its way through floor drains everywhere: in his kitchen, in his bathroom, near the dining area, near the bar. He calls 311, the city's catch-all response unit. It takes an hour for a crew to arrive. The water and grease and excrement oozing from the drains is now several inches deep. The excess runs beneath the refrigerator and the ice machine. It seeps into the dining area. Chairs and tables will need repolishing; mats will need to be replaced.

The city crew is able, with some work, to unclog the drain. Pena is told the sewer pipes are old and small and broken in parts, and what happened tonight was the result of some restaurant on his line dumping its grease trap into the sewer. The line, such as it is, was unable to handle it all.

Another city crew is supposed to clean up the mess, but they arrive an hour after the first crew leaves armed with only three brooms and a bucket. They do little in the way of cleaning. By dawn, furious, Pena sends them home, buys his own chemicals and cleaning solvents at Home Depot and mops and cleans till nothing smells and no greasy film--or other stuff--remains on the floor or walls. He leaves Cantina Dallas at 10 a.m. This is the third time the sewer line has overflowed into Pena's restaurant since construction on the new building began in November 2001.

The sewer lines of Deep Ellum are in serious disrepair and are getting worse with each passing day, month, year. One day--some day soon, even--a backup could cause an entire sewer main to overflow, forcing raw sewage up through each floor drain of each restaurant and club, up through the manholes, out into the streets. "Oh, yeah. It could happen," says Steve Hardy, project manager for Dallas Water Utilities. Adds Mark McNabb, executive director of the Deep Ellum Association: "It could happen this weekend. That's a frightening prospect."

City officials and business and property owners in the area have been discussing their options for years. The problem is that the sewer lines are directly under the buildings of Deep Ellum, impossible to get to without boring a hole through a business or apartment floor or using other obtrusive and costly techniques. Late last year, the city awarded a contract to Dallas-based Barson Utilities to construct new sewer lines beneath the streets of Deep Ellum. The project will be done in two phases: The first phase will tear up Commerce and Main streets. The second phase will tear up Main and Elm. The estimated cost for the first phase is $841,522. No detailed estimate for the second phase has been provided since it's contingent on completion of the first one, the city says. Once the sewer lines are built, property owners must pay to connect to the new mains. And this connection will not come cheaply. Some businesses estimate it could cost as much as $100,000, enough to wipe them out.

On April 8, 22 Deep Ellum property owners filed suit against the city of Dallas, alleging that it's the city's responsibility to pay for each property or resident's connection to the new sewer lines once they are built. City attorneys say the connection costs will be kept to a minimum, but the city, by law, cannot spend public money on private property, or, in this case, private plumbing.

Everyone from the plaintiffs' lawyer to Councilman John Loza, who represents Deep Ellum, says the suit will not delay construction of the new sewer mains. Yet no construction date has been set. Says Sam Laney, vice president of Barson Utilities, "We're at a standstill. We're waiting on the city...to see who's paying for what and where."

The last thing the district needs is months or years of delay. Aside from the threat of a severe backup dousing the streets of Deep Ellum in raw sewage, the city and property owners are worried about Mill Creek, which in the 1940s was converted from a creek to a storm drain that runs underground through Deep Ellum. Raw sewage is finding its way into Mill Creek, which eventually empties into the Trinity River. The Environmental Protection Agency was none too pleased to learn of this in February: It issued an administrative order demanding the city fix the problem. The Dallas-based Environmental Conservation Organization, a nonprofit agency, went a step further, suing the city for its supposed negligence.

And then there's poor Justin Burgess. He and his business partner, Mark McCay, moved Deco-Dence to Canton Street in 2001. Mill Creek runs beneath their new building, and Burgess says he's developed a parasite normally found in Third World countries where proper plumbing doesn't exist. When an environmental laboratory recently ran a petri dish through the waters of Mill Creek beneath Deco-Dence, the fecal coliform count was 19 times the legal limit for raw sewage in a storm drain. And that's judging by the city's standards, which are lower than the EPA's.

The history of Deep Ellum is as rich as any in Dallas--and fundamental to the problems surrounding its sewer lines today.

Elm Street was settled after the Civil War by blacks who called it Deep Elm, but some people heard "Deep Ellum," and the name stuck. A new sewer line was installed in 1905, as Elm Street blossomed. Two other sewer lines, one on Main and one on Commerce, were constructed in the 1910s. All of them were five inches in diameter and made of clay. By the 1920s, Deep Ellum was a retail and entertainment district nonpareil, a place where everyone, blacks as well as whites, came to hear the blues or find some whiskey on the cheap. It's important to note, as the lawsuit does, that the buildings in Deep Ellum dating from the teens and '20s were approved by the city with full knowledge of the sewer lines that lay directly below. Years later, the difficulty in getting to these lines would cause property owners to point the finger at the city.

By the 1950s, the jazz singers found other gigs, the red-light district was gone and development in Deep Ellum had ceased. The Houston and Central tracks were removed. White Dallasites discovered suburbia. Businesses left, and warehouses moved in. Failing and decrepit in the early 1980s, Deep Ellum had few businesses remaining. That's when the city launched its Deep Ellum Plan to revitalize the area. And today, some of the same people suing the city are the ones who gambled on Deep Ellum some 20 years ago. Of course, it wasn't a huge gamble: Dallas provided tax breaks and other services to businesses investing in the area.

And the plan worked. Deep Ellum had 57 bars and nightclubs by 1991. Artists set up studios there. Housing was available. Retail flourished. The district was larger than it had ever been. The sewer lines, however, remained unchanged, as small as they were 90 years earlier but now expected to handle much greater volume.

Dallas Water Utilities' Steve Hardy was concerned enough to run a small television camera through Deep Ellum's sewers in 1994. He noticed cracks in some lines and heavy damage in others.

By the late '90s, owners were complaining about backups. Chunks of the broken segments were lodging themselves in the fully functioning pipes. City officials in 1999 met with property owners and discussed what to do; the Roto-Rooter guys had become a staple of the weekend.

Councilman Loza says the city looked at all possibilities. The best option was to put in new lines beneath the streets at the city's expense, with connection to the lines charged to property owners. Though some owners rejected the idea, the city moved forward, late last year awarding a $5 million contract to Barson Utilities for improvements to 17 Dallas sites--Deep Ellum chief among them.

In early April, 22 property owners and residents joined Don Blanton, a major property owner in Deep Ellum, in a lawsuit against the city. "It's not my problem [the pipes] are underneath those buildings," Blanton says. "It's not my problem they're worn-out."

Says Loza: "Some people just don't want to pay what they should."

That's because it's costly. The hookups alone could put the mom-and-pop stores out of business.

Today in Deep Ellum, much of the property sits on top of the existing sewer lines, with the connections running from the rear of buildings. The new sewer mains will run under the streets in front of the buildings. So to connect to the new lines, plumbers will have to rip through floors from back to front. And some of the floors are hardwood or marble. The estimated cost to connect is $30,000 for each property owner, according to the lawsuit. Some owners say it could be closer to $40,000. Santiago Pena of Cantina Dallas, who isn't among the plaintiffs, says it could cost him $100,000 to reconnect, such is the length of his floor.

And if they don't have the money to reconnect? Well, tough luck.

Bruce Bagelman, the attorney representing the plaintiffs, calls it "inverse condemnation." If a property owner continues using an old sewer line after the new one is installed and a backup occurs, the city can refuse to help. And then it can condemn the building for failing to meet code. Says one plaintiff, "The city could put a red tag on my building...The city can induce you into this situation. And then they can say, 'I've got you.'"

Bob Johnson, director of Dallas' water department, says the city is seeking competitive bids from plumbers that will keep the reconnection costs low for property owners. Hardy thinks a property owner should be able to connect to the new line for roughly $25,000.

The city has asked property owners to sign a letter authorizing it to find plumbers to connect private properties to the new line. (A property owner can find his own plumber if he's unhappy with the city's choice, but he must first sign the letter to be part of the deal.) The city will even front the money for this connection, provided property owners pay back the city within five years.

There's a big problem with the letter, Bagelman says. No property owner knows how much he'll have to repay over five years because Dallas hasn't provided any estimates. Property owners have been asked to trust the city, Bagelman says--and they don't.

Some plaintiffs wonder why they should have to reconnect at all. Pipe bursting might work for the sewer lines of Deep Ellum.

Pipe bursting is when a ditch is dug at the start of a sewer line, and a missile is placed in the ditch. Attached to the missile is polyethylene plastic piping. The missile is pulled through the existing piping, shattering it. The polyethylene stuff behind the missile replaces what was shattered. The costs are kept to a minimum. The streets remain pristine.

Hardy says he and his staff considered pipe bursting but decided it might damage some buildings' structural integrity. Also, the missile might get stuck, as it did a few years back in Fort Worth, when that city used pipe bursting for its Third Street Project downtown. Dan Callaway, a construction inspector for the Third Street Project, says it took a year longer than expected and $1.4 million more to complete the work. "After going through what I went through," Callaway says, "I wouldn't recommend pipe bursting."

But even if a new sewer line is the only way to go, Bagelman wonders if the city would consider easing the costs to property owners. Other cities have established public-private partnerships when similar situations arose. But Assistant City Attorney Chris Bowers is steadfast: No public money can be used for private property. "I'm absolutely convinced of this," Bowers says. "And we've had attorneys look at this for years."

The city's project is surrounded by uncertainties. No one knows when construction will begin, much less when it will be completed, though two years for both phases seems to be the estimate. No one knows if both the streets and sidewalks will be ripped open, or just the sidewalks, or just the streets.

No one knows how much business will be lost. The city wants Barson to do its construction during the day. Pena and other restaurateurs worry about their lunch crowds. "Without sidewalks and without streets, you've lost foot traffic," he says. Erick Schlather, president of the Deep Ellum Association, says, "This is going to be a major expense to a lot of people."

Santiago Pena has his own fears. "This place could turn into a ghost town," he says. To some extent, he feels cheated. He doesn't know why the city never told him of the likelihood of having to rip up his floor to connect to a new sewer line as he built his restaurant in 2001 and 2002. "No, the city never said there was a problem with sewer lines. Never said you can't construct here. As long as I was paying my permits and getting my inspections done, the city didn't care where I built," he says.

Bruce Bagelman wants to know why the city neglected these lines for so long. "Why are we here? Who's responsible? How could this have been avoided?"

Loza wants to know what's keeping the process from moving forward. He has a pretty good idea: He's fed up with five years of resistance to the new lines. "My instructions to the city attorney were: 'Do everything that you have to to win this lawsuit. Get any kind of sanction against them...Make them pay for everything that they can.'"

Jeff Swaney owns about 20 properties and developments in Deep Ellum. He wants to know when the bickering will end; he sees a Deep Ellum that isn't thriving as it was in the late 1990s. Businesses have left. So have residents. One woman who spoke to the Dallas Observer says she moved out because of the crime and the Monday-morning stench of piss and sewage that wafted up from the streets. "My eyes would burn," she says. The latest figures from the city show the value of Deep Ellum properties down 1 percent. Uptown properties, by comparison, were up 8.9 percent. For the vitality of the district, the sooner the new lines are put in, the better, Swaney says. Because then Deep Ellum can move on. The plaintiffs "think they're doing something good, but they're really shooting themselves in the foot," he says. Don Blanton, who filed the suit, is "creating more problems than he's solving."

Mark McCay is on his belly, crawling. He's beneath Deco-Dence, with its posh furniture, its big bands on the stereo, its expensive artwork. McCay talks as he creeps. "Sometimes, you get a whiff of it, and it's just like, 'Whoa,'" he says.

He wants to better explain the smell that now taints Mill Creek, the storm water drain running directly beneath Deco-Dence. So he's opened the trap door behind the showroom and wiggled through, crawling now on the soil and rocks beneath his store, with the ground floor two feet above his head. After about 10 feet, the soil drops off, the result of floods in years past. It lets McCay stand, and he walks now to the cement wall in the middle of this area beneath Deco-Dence, which looks like a parking garage with dirt lumped everywhere. The air is moist. Around McCay are the thick foundation beams that support the building. He climbs up a pile of dirt and takes a seat on the cement wall. Six feet opposite is another wall, and between the two runs Mill Creek.

It's during the summer months that the smell of raw sewage in Mill Creek is strongest beneath Deco-Dence. Tonight is no exception. Near McCay, as he sits on the wall and smokes a cigarette, you can taste the stench. And once you do, you gag. It's somewhat metallic on your tongue, and when you swallow, you feel like it's entering your body. All around you is the overwhelming smell of shit.

You climb some dirt, certain something disgusting is visible in Mill Creek. But the creek is only a trickle of water now. And there is nothing but water to see. "It's broken-down fecal matter," McCay says, still sucking on his cigarette. "It's not going to be lumps, if you will."

Raw sewage from somewhere--most likely the Deep Ellum sewer pipes--is seeping into Mill Creek.

Last summer, McCay and Burgess had their store tested for raw sewage. Dallas' Certes Environmental Laboratories ran a petri dish through the water of Mill Creek beneath Deco-Dence. The particles of fecal coliform counted on that petri dish would indicate the extent to which raw sewage flowed through Mill Creek in Deep Ellum.

A storm water drain always has some raw sewage floating through it: Cats and dogs urinate and defecate outside; with the help of rain water, some of this waste makes its way into a storm drain. The EPA says a petri dish count of 100 to 200 particles of fecal coliform is acceptable. The city of Dallas says 200 to 400.

On July 11 of last year, the fecal coliform count for Deco-Dence was 1,100. On August 11, it was 1,800. On August 15, 5,400. On August 22, 7,600.

As an apparent result of these high counts, Burgess developed a fecal-borne parasite called Blastocystis hominis, which can survive as aerosolized water in a moist place like a basement before rising through cracks in a wall or floor and entering the body through a quick suck of breath, says James Maguire, the chief of the parasitic diseases branch at the Centers for Disease Control and Prevention in Atlanta. The parasite made Burgess violently ill, and the cramping in his stomach was sometimes all he could focus on. He was put on antibiotics, but the parasite fought back. Burgess is still living with it.

Since last summer, McCay has traded e-mails with Frances Verhalen, who specializes in storm water management for Dallas' department of public works. In November 2003, she told him she didn't know for certain what's causing the high fecal counts but that an investigation was under way. It still is.

"It's just another example of the city dragging its feet," Burgess says. "It's the height of total inefficiency." Burgess says he's considering a lawsuit.

Although Cesar Cavazos provides no conclusive evidence, the environmental inspector for the city says there's a "strong possibility" the fecal counts beneath Deco-Dence are a result of broken sewer mains. But he doesn't know for sure, because Mill Creek runs throughout Dallas. The sewage could be coming from anywhere.

Wherever it's coming from, Mill Creek eventually empties into the Trinity River. The EPA in February issued a 41-page administrative order demanding that the city address several serious environmental problems. Among the many orders was one to find how raw sewage is getting into storm drains that empty into the Trinity. If the city doesn't comply, the order calls for a $27,500 fine per day and per violation. This pleases Burgess, though he says, "I think the EPA has backed off a bit."

EPA spokesman Dave Bary says his agency is working with the Texas Commission on Environmental Quality to hand out fines and punishments should the city not comply. Yet Frank Espino of the Texas commission says no one there has received any information from the EPA about the administrative order.

Perhaps ECO will force some action. The nonprofit Environmental Conservation Organization filed suit against the city in December, alleging that "throughout the older parts of the City, such as Deep Ellum...the City's sanitary sewer system consists of decaying clay pipes that have ruptured, causing sewage to enter the [Mill Creek storm drain]...and other waterways that ultimately discharge into the Trinity River Watershed."

ECO's president, James Riley, calls himself a right-wing environmentalist. "The city isn't doing 80 to 90 percent of what it should do," he says. "The idea is that when it rains, what makes it into the Trinity should be storm water...The city's candy-coating a big pile of shit."

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