The Texas Senate Hears HB 4757 for Fairfield Lake State Park
And things go sideways pretty quickly.
“But for several years now, I realized that no matter how enlightened is a congressman, he has reelection as his first goal. Campaign contributions are essential to reelection, and a candidate can get greater campaign contributions by helping business interests than by supporting environmental legislation.” - Ned Fritz, Sterile Forest: The Case Against Clearcutting (1983)
This is long…settle in with some coffee before you read!
The last several months have been a huge learning moment for me, and I suspect for many of you out there. I’ll be honest, I’ve only cursory followed the Texas legislature in the past. I’ve always focused on federal actions instead, though in recent years state legislatures throughout the US have been increasingly passing suspect legislation. This session has been no different. Watching some of the committees and action on the floor of the Capitol has also been interesting as I’ve seen many uninformed legislators, legislators with grudges with other legislators, and even an instant earlier this week when a handful of legislators from both parties appeared to be drunk post-lunch. Just plain unprofessional. Truth be told, it seems that if you are semi-informed and have someone to fund a campaign, just about anyone can run for office. It’s really that money component that is holding most people back. That and the stomach to deal with the nastiness that comes with a campaign.
It had been crickets on HB 4757, Representative Orr’s bill for Fairfield Lake State Park since it was approved on the floor of the House a few weeks ago. It was then referred to the Senate, first to the Water, Agriculture, and Rural Affairs committee to go through the same process it went through in the House: Committee—>Senate Floor—> vote—>then to the Governor’s desk to be signed into law.
The bill finally made it to the Senate committee this Monday. I didn’t end up getting to watch as it happened but watched the recording two days later, after hearing the summary from one of those in attendance that day. It wasn’t great.
Let me recap…
First, Senator Perry informed everyone that a committee substitute had been made to the bill, changing the language last minute. Of course, there was no written paper showing what the language change had been. This shouldn’t surprise anyone, this is what happened last minute when we heard the bill the first time in the House committee, changing it from an eminent domain bill to a water rights bill. More comments on that towards the end.
The substitute language, as I understand it, would mean that if the water permit was to be changed or created, it must also include a public hearing in the counties where the lake is located, a resolution from the county commissioner where the lake is located, and include historic preservation of the lake and water quality. Oh, and I believe it was supposed to reflect not just Fairfield Lake but other lakes as they didn’t want to make specific legislation for the lake—again, I am not even able to find the substitute language as it was amended on the bill’s website so I’m unable to state the exact wording. Needless to say, it is a significant change.
After glossing over the language change, several of the Senators grilled Kim Nygren, the Deputy Director of the Water Availability Division at TCEQ, but not before several of them just butcher her name for a several minutes. During the grilling they ask about current processes for changing water rights permits, harp on getting her to answer if water rights are property rights, ask about precedent, and wonder about expansion of agency authority. It was antagonistic and I knew it wasn’t going to go well the rest of the discussion.
And then we finally get to meet Shawn Todd of Todd Interests! He was angry, of course. I actually expected him to be a little more put together, an outline of some sort but it wasn’t like that at all. He repeated multiple times about the integrity of private property rights, the private business deal and the government appearing to be interfering with it, and attempting to underline how he’s a small business and just a regular Joe trying to keep his business running. Sure, I’ll give that perhaps 25-30 years ago he truly ran a small business, but being involved with $1.5 billion (possibly $2.5 billion as I’m reading elsewhere) worth of real estate acquisition and transactions in the last 30 years really doesn’t give off small business vibes. This isn’t your mom and pop store on the town square we’re talking about. He then goes on to mention Davy Crockett after seeing a painting of him in the Capitol and how Davy fought to save private property rights and I about fell out of my chair at that comment. Yeah, only if by property rights you mean the right to claim humans as property! I’m not going to digress further on that subject, but will refer you to the book Forget the Alamo. Just an astounding moment for him to pair Davy Crockett and private property rights. Mr. Todd then goes on to invoke Senator Perry’s recent words, “So, on private property law alone, I am unwilling to give a government any wiggle room in future use to take my property away,” and then continues on heavily into his private property rights spiel.
Ed McCarthy, a lawyer for Todd Interests spoke next, mostly echoing what his boss said. He gets questioned on the water permit change that occurred a year ago and tried to stress that the character of the lake wouldn’t change with the permit change.
Next was Alex Ortiz with the Lone Star Chapter of the Sierra Club. Because the language had been changed, both Ortiz and later Sandy Emmons had to adjust their speeches a bit. Mr. Ortiz brings up the fact that additional public hearings and public input doesn’t really aim to solve the problem, that when an individual wades into a permit fight there’s also an affected person status determination. And it is highly unlikely those individuals would have any ability to contest it on those grounds as they would likely not be adjacent property owners, a public utility, or be there in any public capacity. I thought those were good points and possibly a reason why the change to include that language occurred to begin with, to create a dead end. I can’t decide if the legislation language from Orr onward has been intentionally poorly written or if it is just not well thought out, generally.
Sandy Emmons spoke next and she reiterated many of the points she made in the interview here in the newsletter as well as informing the Senators that business has drastically slowed on the town square since park visitation has dropped within the last few months with the initial closure and re-opening for day use.
The final speaker in favor of saving the state park was David Terry, Conservation Director for the Texas Bass Angler Society, also reiterating his House testimony that the lake has produced many record fish for anglers and should remain open for public use.
Next came the questioning from the Senators, which left me so frustrated and angry. I’m not trying to recap this play by play but I know so many haven’t and won’t watch the committee testimony and it’s also just cathartic to write it all out.
One person who did a lot of heavy questioning was Senator Nathan Johnson, a Democrat originally from Fort Worth, currently representing District 16 which is a gerrymandered to hell tract in Dallas county from Balch Springs in SE Dallas to Irving. I had to look him up immediately because as soon as he opened his mouth I was sure he was a pro-business Republican and was astounded to find him to be a Democrat. Someone needs to primary him next term because despite him trying to say he usually sides with the Sierra Club and loves nature, etc, he launched right into the sanctity of private property rights. I got the feeling there had already been a conversation between him and Todd Interests based on body language and questions being asked. It doesn’t help when you start looking into his campaign contributions and you see the likes of Vistra Energy Corp and Vistra Employee PAC as donors along with other pro-development and pro-energy interests. I know all of these companies spread their money around to people of both parties so they can have their hands in what everyone is doing, but is still reeks.
So, then Senator Johnson asks a pointed question to Ed McCarthy about the legality of a property being used by the public for decades, what kind of lease rights there were and McCarthy replies that it is just like a house being leased to a tenant and once the lease is over the tenant has to leave the property. I’ll spare you what I wrote about Senator Johnson in my notes at this point in the conversation.
They continue on about how changing the water permit a year ago won’t change the habitat that “nature isn’t going away”, which is simply untrue. Then they migrate on to potential litigation if the state continues to stand in the way of the transaction. I’ll get into more about the nature going away part in a few paragraphs.
Next on the docket for disappointment is Senator Guttierez who proclaimed he had no dog in the fight because it isn’t his community and he then proceeds to ask a couple of questions to piggyback off of Senator Johnson. Guttierez is also a Democrat, from District 19, which is another gerrymandered chunk of Texas from Seguin to Helotes all the way to Brewster county in the Big Bend. I know nothing else about this man but how can you say you don’t have a dog in the fight when Texans can get in a car and drive to any one of the 80+ state parks and visit it? Does he say this about any other issue? This way of thinking continues to drive the lack of empathy legislators at both the state and federal level across many issues, it easily allows them to “other” people, groups, and issues so they don’t have to think about its impact on their own constituents. Or the simple fact you should try to care about something beyond yourself.
I would mention Kelly Hancock because he was also hammering in on the private property rights issue, but as soon I found out he was Vice Chair on this committee a few weeks ago I knew this would be a frustrating part of the legislative process. He’s from my hometown and spent years on my school board before running for state office. And there was no way he wasn’t going to be pro-business on this issue.
And that’s about it after the questioning. The bill was left pending in committee and they moved on to the next item on their agenda.
So, thoughts…feelings…about this whole debacle?
I want to know who came up with Representative Orr’s change to her original eminent domain bill. It should never have changed. You start big and then work your way down to get the thing you really want. Senator Schwertner also had an eminent domain bill that has never seen the light of a committee and likely never will. They should have worked in tandem to put something together. The water rights bill never addressed the land, which is the bigger issue when talking about saving the state park. Other than its dream-like hope of convincing Todd Interests of dropping their purchase of the property if TPWD had control of changing water rights permits, I still never saw how it would effectively save the property for citizens. It was lacking in details and I think that’s part of the problem here, no details and too many open questions. I give Representative Orr props for at least trying, considering this was her very first bill since being elected, but I also feel like the wool was pulled over her eyes.
Back to the part about Senator Johnson and Ed McCarthy talking about how the change in the water use permit from last year wouldn’t affect the nature of the lake itself. This is patently untrue for many reasons. First, we don’t really know details on the drawdown of water itself: how much, when, how often. Nor does it address any future changes Todd Interests might do to that permit in the future. They can try to say now it wouldn’t affect wildlife because of whatever amount they’ve decided currently is appropriate to ship off to DFW but it doesn’t reflect future changes to lower lake levels, droughts, or other environmental issues. Nor does it address what will happen to water quality from conversion of forested habitat to developed land. What are some of those things to think about?
Wetland destruction (no more filtering of runoff through wetlands into the lake)
Runoff from stormwater: loss of trees and vegetation to slow runoff into the lake means higher sedimentation and discharge of other pollutants into the waterway.
While we’re talking pollutants, with the development of homes and other buildings for amenities there will be either a small water treatment facility on site or individual septic systems which will all eventually leech down into the the groundwater and lake. There is plenty of literature out there about the detriment septic tanks have on water quality in adjacent water bodies. Look up the Indian River Lagoon in Florida. (And yes, there septic tanks or water treatment facilities at the state park now, the difference is of course, scale.)
Continuing on the pollutant issue: there’s going to be a huge golf course built! Fertilizer runoff from the golf course plus all of the now manicured lawns is going to affect water quality, and thus habitat for wildlife.
Removing the currently forested habitat is a detriment for wildlife from insects to mammals to birds as it removes cover, foraging, and nesting opportunities for all of them. If you start altering the shoreline around the state park do you really think the white pelicans are going to want to hang out nearly as often? Many people do not understand what a living shoreline is and how it functions and will instead build retaining walls, spray vegetation in the water, and remove vegetation because they deem it to be ugly. With that loss comes a loss of habitat for invertebrates, fish, and birds, and later you will end up with algal blooms and terrible water quality because of eutrophication.
And that’s just the tip of the iceberg. Of course none of us will see that because it will be behind gates.
On the subject of eminent domain, I would like to know why no one bats an eye when it is used consistently to expand highways, create the border wall, make pipeline and transmission easements, and other similar activities. All of those are done in the name of the use of the public. But protecting public lands for recreation or environmental reasons? No, we can’t possibly do that! The majority of the Appalachian Trail was created using eminent domain. Franklin Mountains State Park—eminent domain. In more controversial territory, Great Smoky Mountains National Park and Shenandoah National Park—eminent domain. Now, do we decide to say no, we can’t do eminent domain on any of these topics because we support private property rights or do we selectively pick which ones we’re going to use eminent domain on because some legislators and their friends are gonna make a buck down the line? Is using eminent domain going to help them get reelected because that construction company is going to get the bid to expand the highway and thus donate money to said legislator’s reelection campaign? See the problem here? Too many people will say, “I don’t like eminent domain” and never look around to see what is going on in their own backyards that has been created by use of eminent domain.
I’m active in the hiking community, having hiked both the Appalachian and Florida Trails. While the AT is a protected corridor, the majority of the other national scenic trails are not, and have road walk gaps where public land or private access easements don’t exist. It means there’s not an entirely protected hiking corridor. Jim Kern, the founder of the Florida Trail, has been actively trying to push the idea of eminent domain being used for protecting these trail corridors. He’s done the research and legwork and I’m going to share from his most recent email newsletter:
Between 1978 and 2020 the Department of Interior and the U.S. Forest Service acquired 2,550 parcels from Maine to Georgia to render the Appalachian Trail continuous from end to end. According to Don King, Chief of the Acquisitions section at the Department of Interior, the section used eminent domain “about 400 times.” That’s about one in six times.
Here’s an amazing backup to these figures above. In four years, from 2017 to 2020 the Federal Highway Administration used eminent domain 20,512 times in 123,463 acquisitions, 16.6%, one in six times, way, way beyond zero and far, far beyond the realm of chance.
So, what’s next?
Well, the Dallas Morning News, who has been pro-Todd Interests this entire time, put out an op-ed yesterday basically declaring the whole thing dead. I’d like to think we aren’t there yet so I would advocate for you to write to your state representatives but also write an email to every member of the Senate Committee on Water, Agriculture, and Rural Affairs, asking that they vote to allow the bill to proceed to the Senate floor. I really wish we could see the substitute language. You can see the committee members here: https://senate.texas.gov/cmte.php?c=700 and click through to each member’s senate website and email them from there.
The Save Fairfield Lake State Park Facebook group is still active. Share your photos from your visits over the years there and any updates you find about the state park. It’s been a really good community and I think we’ve all learned a lot from each other. I honestly never thought I would be this entrenched in this issue. It certainly would have been easier on my mental health to just let it go.
The Texas legislative session ends May 29th. That’s all the time we’ve got.
The the state park will turn over to Todd Interests on June 13. Go visit while you can.
A heartfelt thank you to every single person who showed up to the House and Senate committees for public testimony. We all appreciate you and the effort you took to trek over there and to try to save the park.
+Watch the committee meeting for yourself here.
Misti writes regularly at Oceanic Wilderness and can be found on Instagram at @oceanicwilderness. She hosts two podcasts, Orange Blaze: A Florida Trail Podcast, and The Garden Path Podcast.