River Hero is a song about the San Marcos River Rangers. Rachel Sanborn, who has led the River Rangers for over 25 years was kind enough to write the short piece below about the River Rangers. They are my river heroes!
The San Marcos River Rangers are a large and active volunteer group of citizen scientists who collect water samples every week from 20 sites along the San Marcos River- an ecologically unique spring-fed river with many endangered and rare species. This data is analyzed, submitted to Texas Stream Team and the Texas Commission of Environmental Quality then made available for online for use by researchers and local residents so that the community can better understand the impact of regional growth, water usage and non-source point pollution. The River Rangers are the oldest Stream Team monitoring group in Texas and are dedicated to preserving and protecting the natural beauty, flow and purity of the San Marcos River.
With predictions of rapid growth and the increasing demand for water in this area of Central Texas and the Hill Country, the River Rangers were formed in 1995 by the San Marcos River Foundation to begin accumulating data and information on the river and identify areas of poor water quality that could be improved. With regular monitoring, a clearer understanding of the river’s cycles has emerged, water quality has improved in many places and the River Rangers serve as an early warning system for potential problems by providing consistent data and observations, as well as E.coli testing in recreational months.
This type of citizen-monitoring program encourages local residents to become more actively involved in understanding and protecting their river, learning more about the unique qualities and the delicate ecosystem of the San Marcos River, and becoming active stewards for its long-term health. Starting with just 8 volunteers, the River Rangers now has 50 regular monthly monitors and has trained over 500, many who have gone on to start similar programs in other cities.
Training to become a state certified monitor takes only 4 hours and trainings are available monthly. During that training, volunteers will learn how to calibrate equipment and conduct the various tests, including dissolved oxygen levels and sedimentation. After training, monitors choose a site and go out monthly to collect samples. The San Marcos River Foundation and grants from the San Marcos Lion’s Club pay for the needed supplies and equipment. To find out more about becoming a monitor, visit www.sanmarcosriver.org and contact the Volunteer Coordinator.
Rachel Sanborn, River Ranger Coordinator, San Marcos River Foundation
Judge Bunton was a federal judge who mandated that the Texas legislature form the Edwards Aquifer Authority to limit pumping from the Edwards Aquifer to avoid drying up the San Marcos and Comal Rivers, among other things. If he had not acted, the San Marcos Springs and Comal Springs would likely have ceased to flow like the springs that used to feed the San Antonio River (which is actually now recycled "brown water").
This song is about a man who was an attorney and federal judge in the Western District of Texas, Lucius Desha Bunton, III. Appointed as judge of the federal district court in Odessa, Texas by the administration of President Jimmy Carter, his jurisdiction included not only the arid counties of Western Texas but also extended to the Central Texas region of Austin, San Antonio, and the lands above the Edwards Aquifer.
The semi-arid region of Central Texas had experienced a severe, multi-year drought through much of the 1950’s. Even though the human population was much less at that time, the results on agriculture and vegetation were devastating. The region relied heavily on ground water pumped from the Edwards Aquifer to sustain human existence in the area. Droughts are recurrent events in Texas, and in the 1970’s water scientists began to sound the alarm that the water in the Edwards Aquifer was not endless, and that if measures to conserve and properly distribute the aquifer water were not taken, that with the increase in population in the area, the Edwards Aquifer could someday literally dry up and fail to provide sufficient water to the region.
Around the same time biologists and environmentalists began to become increasingly alarmed at the effect that severe drought with consequent water depletion would have on animal and plant life that depend upon the Comal, San Marcos, and Barton Springs of Central Texas, all supplied by the Edwards Aquifer. In addition, downstream interests for water that the Guadalupe River supplied, from agriculture to industrial, as well as animal life at the coast (e.g., whooping cranes) were clearly in harm’s way if the water would run dry.
Recognition of the importance our habitat and man’s role as stewards of our habitat led to the passage of federal laws during the Nixon Administration in the early 1970’s, to include the Clean Air Act (1970), the Clean Water Act (1972), and the Endangered Species Act (1973).
In most states in America, ground water and surface water are treated equally by the law, and the government has jurisdiction over both. However, during the most of 20th century in Texas ground water from wells was treated as the private property of the landowner. Because of this, the government had no authority to establish limits on the pumping of water from the Edwards Aquifer. Environmental groups, including the Sierra Club, lobbied the Texas legislature through much of the 1980’s to make laws to control pumping from the Edwards Aquifer.
However, the freedom for landowners to do what they will with private property of land was sacrosanct in Texas. Many Texans felt that the water beneath their land belonged to them, and this was supported by the legal concept of “right of capture” from a court ruling in the early 1900’s when Texas was still an agrarian frontier for the most part. Influential landowners pressured their legislators in the Texas Senate and House of Representatives to keep the government from infringing upon what they felt was their private property rights.
At the same time the human population in central Texas was growing by leaps and bounds, in particular the San Antonio metroplex. Despite being the 10th largest city in the U.S., San Antonio did not have any water treatment plants, but relied exclusively upon well water from the Edwards Aquifer. Drawing the water down during times of drought in the 1980’s caused the Comal Springs to cease flowing for a time and caused the death of endangered species, including the Fountain Darter fish.
At the same time, farmers and ranchers in Medina and Uvalde counties southwest of San Antonio were extremely resistant to any thought of pumping restrictions of water from the Edwards Aquifer.
Conservationists tried to pass a ballot initiative in San Antonio to store water during times of heavy rain to decrease reliance on the Edwards Aquifer for water (Applewhite project). Opponents campaigned heavily against this, and the ballot failed during an election.
In frustration, the Sierra Club and other environmental groups decided to file suit. However, they sensed that a suit would not be successful in Texas because of the courts were sympathetic to the influential land owners and because of past case law involving the “right of capture”. Ken Kramer, director of the Lone Star Chapter of the Sierra Club along with Stuart Henry, their counsel, came up with a last-ditch plan, like a “Hail Mary pass”: sue the U.S. Fish and Wild Life Service for not properly enforcing the Endangered Species Act (a federal law), causing illegal death or “takes” of endangered species, such as the Fountain Darter fish. If successful, the suit would direct the U.S. Fish and Wildlife Service to demand Texas agencies to either regulate the Edwards Aquifer pumping, or the federal government would take control.
The genius of this plan was that it took the suit out of Texas court and put into the hand of a federal judge who was appointed for life and not up for re-election. If successful, the suit would give Texas legislators the excuse or “cover” that they would need to tell their constituents, including powerful landowners and the city of San Antonio, that the state had to act to limit ground water pumping or the federal government would reach in and take over. And no land owner in Texas wanted that.
Since this was a federal suit, it would take place in federal court with a federal judge. The suit was without legal precedent. The person to preside over the case needed to not only be courageous, but also to astutely frame the decision so that it would not be quickly overturned and to take steps to ensure that the decision would be acted upon once the appeal process had been exhausted. Judge Bunton delivered all of this.
The council for the Sierra Club, Stuart Henry, remarked, “The law is law but you can interpret it in many different ways. That was one of the reasons I thought Bunton would be the ideal judge because he had the cajones to do what the law required. The Endangered Species Act is the most expansive federal legislation to protect biology in the country. There’s not a lot of quibbling in the statute, there are a lot of mandates. He had enough courage to do what the law required.”[i]
“The lawsuit was unlike any I’d experience or any I’ve seen since then,” said Charlie Shockey, former counsel for the U.S. Dept. of the Interior.[ii] “It was different because the whole process of habitat conservation plan was not very well developed. [The government] raised every defense we could.”
Judge Bunton, known for his speed, had little time to waste in court. The trial was expected to be long, complex, and lasting for several months, and even with a fuzzy outcome. However, in Judge Bunton’s “rocket docket” speed court, the trial was over in just four days. Russell Johnson, former counsel for the city of San Antonio, opposing the lawsuit, recalled that there were more than 9,000 pieces exhibits (pieces of evidence to consider) submitted for the trial. “The thought that [the trial] could be done in a four day period was beyond belief. He handled those exhibits in less than one hour.”[iii]
Despite the tension and strong emotions regarding the trial, Judge Bunton maintained his cool and trademark sense of humor. For what he termed “hard cases” he would wear a yellow hardhat. On the day of the judgement he appeared in his robes with a yellow hard hat on his head with a lightning bolt emblazoned on the front of the hat. The lightning bolt, Bunton said, stood for “lightning fast decision.”
Bunton’s reputation was not only for speed but for not being overturned on appeal. Although the trial was over in a flash, the judgement opinion was solid and stood the test of time. The decision led the Texas legislature to enact law to form the Edwards Aquifer Authority with a mandate to develop a regulating plan to prevent the illegal “takes” or death of endangered species from the Comal, San Marcos, and Barton Springs from low water flow during times of drought.
It was the first critical step in regulating ground water in Central Texas to prevent the environmental, safety, and economic disaster of the Edwards Aquifer running dry. The second step was to get 39 stake holders who, as head facilitator Robert Gulley has quipped, “could not agree on what to order for lunch”, to form the regulating plan mandated by the Texas Legislature, eventually known as the Edwards Aquifer Recovery Implementation Program and the Habitat Conservation Plan. But that’s another song.
Judge Bunton was known for his character as well as decisions as a federal judge. He did not shy away from controversial or “hard cases”, as he would call them. Although he loved be involved in politics, he left his politics at the courthouse door. He believed that as a judge his role was to apply the law, whether the decision would be popular or not, and whether the decision was in line with his political beliefs or not. He was a “straight-shooter” in classic sense of the term and was well-respected in the Texas Bar Association.
He had extreme respect and reverence for the value and importance of the court as a pillar of our government, society, and way of life in America, but he did not have any illusion of self-importance. In fact, he was known for introducing some well-needed levity into some tense legal cases. He had little tolerance for attorneys who would waste time by rambling on and on without need. He would give them warning to “tighten up” their arguments and, failing this, he would take other measures, even pulling out a water squirt gun to “shoot down” bombastic attorneys.
Hats off to Judge Lucius Bunton. There was none like him before, and there may never be another like him again.
James Keith Baker
[i] Edwards Water Wars: Judge Bunton Brings Down the Federal ‘Hammer’. Anita Miller, San Marcos Daily Record, January 23, 2015.
Bower, Tom. Water Trial: Sierra Club’s aquifer demands seen fueling loss of jobs in S.A. Billions of dollars at stake in water trial’s outcome, testimony shows. San Antonio Express, Nov. 20, 1992.
Bragg, Roy. “The Water Crisis.” San Antonio Express, October 30, 2016.
Gulley, Robert. Heads Above Water: the Inside Story of the Edwards Aquifer Recovery Implementation Program. Texas A&M University Press, College Station, Texas, 2015. [Excellent source for understanding not only the EARIP, but also first half of the book is a comprehensive “blow by blow” recounting of what led up to the EARIP. A “must read” for anyone wishing to have a understanding of what events led up to the Edwards Aquifer Authority and EARIP.]
Halpern, Robert. “Federal Judge Lucius Bunton Dies in Austin.” The Big Bend Sentinel, Jan. 18, 2001.
Miller, Anita. Edwards Water Wars: Pumping Pits Farmers Against Cities. San Marcos Daily Record, January 22, 2015.
Miller, Anita. Edwards Water Wars: Judge Bunton Brings Down the Federal ‘Hammer’. San Marcos Daily Record, January 23, 2015.
Putnam, Linda and Peterson, Tarla. “The Edwards Aquifer Dispute: Shifting Frames in a Protracted Conflict” in Making Sense of Intractable Environmental Conflicts: Concepts and Cases, ed. Lewicki, R.; Gray, B.; Elliott, M. Island Press, Washington, 2003, pp. 127-189.
Smith, Kim. “Humor, fairness rule in Bunton’s Courtroom. Judge’s antics help lighten trials’ pressures. Odessa American, June 10, 1996.
Votteler, Todd. “The Little Fish that Roared: The Endangered Species Act, State Groundwater Law, and Private Property Rights Collide Over the Texas Edwards Aquifer.” Environmental Law, Winter 1998.
The Ballad of Jaimy Breihan
This song is about Jaimy Lamar Breihan, son of Ted and Francis Breihan, who prematurely died in 2013. Jaimy was a poet, political activist, and lover of the San Marcos River and Sessom Creek in San Marcos, Texas. He actually died "in the line of duty" in what was then like a war to keep the San Marcos River and its tributary creeks from being lined by condos, apartments, and eventually commercial establishments like the San Antonio River.
A development company wished build a mixed use student housing complex on the banks of the Sessom Creek which drains into the San Marcos River. At the time the city council was essentially rubber stamping apartment complexes and was very "pro-development". It seemed to be a forgone conclusion that the Sessom Creek tributary to the San Marcos River be the next in a line of casualties and fatalities of ecosystems at the expense of development.
Then came Jaimy Breihan. Refusing to be overcome what seemed like the inevitable, he encouraged friends and river lovers to come to city hall and have their say even against a very wealthy and experienced development company. At first it seemed like a futile battle, but by force of will Jaimy Breihan fearlessly stood tall and battled the "Goliath". Inspired by his moral argument, stamina, and charisma, Breihan drew many around him until the foundations of the development team began to shake.
Then at a picnic rally for saving Sessom Creek from development, Jaimy mounted his newly purchased all-terrain-vehicle to go get supplies for the cooking. He had not been drinking any alchohol. Melissa Derrick was one of the last to speak to him.
The next time he was seen was when he was found on the road with a closed head injury from an ATV motor vehicle accident. The following day, he was taken off life support.
Although Jaimy was not with us when the victory that he fought for finally bloomed, we know that he was watching and smiling as others picked up the banner to carry on in his footsteps.
This song is in reference to a proposal by the San Marcos Transportation Department, nicknamed the “Craddock Street Extension”, to build a ‘thoroughfare’ (multi-lane high-volume roadway) in a roughly north-south direction over ground that drains into the San Marcos Springs/Spring Lake. The plan was proposed by the planning staff to accommodate the increased traffic from the Hill Country areas passing through San Marcos to access the I-35 interstate.
The proposal for the road was to modify the San Marcos Comprehensive Plan to update the short, medium, and long-range plans for the local roadway and transportation systems and to communicate these plans to other government agencies such as the Hays County Transportation Department and CAMPO (Capital Area Metropolitan Planning Organization), which are very important for funding of multi-million-dollar roadways. The city’s transportation plan had not been updated since 2004.
The proposed roadway was strongly opposed by many Texans because it would pass over very environmentally sensitive grounds and would inevitably lead to increased development (‘roads beget more roads’) with non-point source pollution endangering the San Marcos Springs and San Marco River.
The plan for this thoroughfare was only a preliminary draft, and most details had not been even studied, such as environmental impact, land acquisition, costs (very expensive to build in this area), etc., but Texans who valued the San Marcos River and greenspace above it could seen the negative potential impact of such a roadway on the environmentally sensitive area.
The Transportation Department viewed the problem from a traffic perspective noting that without the Craddock Street Extension traffic models predicted increases through the present city streets, such as an increase of 15% traffic on Hopkins Street during peak traffic times. They cited quality of life issues with increased traffic time and concerns for increase in CO2 emissions, although most of the problems with CO2 emissions are from the San Antonio metroplex.
Although the majority of the public comments regarding the new transportation plan were focused upon the Craddock Street Extension, and virtually all of these opposed to the plan, the San Marcos Planning Department continued to recommend that the thoroughfare be included as a potential roadway in the new transportation plan.
As part of the public outreach and comment process, the city government held a public meeting late autumn of 2017 at the San Marcos Activity Center to elicit public comments on the proposed transportation plan and to give a presentation. The presentation portion of the meeting was attended by about 25 concerned citizens, many of whom were members of the San Marcos River Foundation and Greenbelt Alliance. Some were citizens who lived in the areas near the proposed thoroughfare. To my knowledge everyone attending who had an opinion about this was against the Craddock Street Extension.
I attended the meeting. At the time I was quite angry that the Craddock Street Extension was still in the transportation plan despite the overwhelming number of negative written comments that had been previously received by city staff about the proposal. The mood in the meeting was somber, and a simmering resentment was palpable among many in the crowd.
To be honest, I knew that the transportation staff were doing what they thought was their job, and from their point of view the Craddock Street Extension made sense, and they are good people. Sometimes in government there are people who are not completely honest, but this was not the case with the transportation staff. I felt that they were good people, but sometimes good people can do bad things for what they consider the “right reasons.” Often the decision of what is right and wrong depends upon what you value and which side of the fence you sit on, or as Judge Bunton once said, "You're a hero or a villian depending upon whose ox is getting gored."
When the plan for the Craddock Street Extension was discussed and comments were elicited, many expressed concern and dismay about the proposal. At one point a young lady, upset at the prospect of losing our clear water river, asked the presenter how she could live with herself at night (i.e., morally do such a thing). To us, it was a moral issue. The presenter then explained that her son swims in the San Marcos River, and that she understood the concerns we had.
I was still quite hot after the meeting and that weekend I wrote the song, “Craddock Street Extension”, about that night.
In our city government the new transportation plan adoption requires a recommendation by Planning and Zoning Commission and then vote by City Council who could also make changes to the plan. At the time of this writing the Planning and Zoning Commission has voted unanimously to recommend removal of the Craddock Street Extension from the transportation plan. The majority of City Council has also voted to remove the Craddock Street Extension. Although the final vote is still pending, it seems that the health of the San Marcos River may take precedence in the debate over whether to build roads above the land draining into our sacred springs.
James K. Baker
The article below is an editorial that appeared in the University Star, a Texas State University at San Marcosnewspaper, in 2013. The link is referenced below. Please note that there is a completely new city council at this time.
City council’s Cape’s Camp decision disrespects voters’ wishes
The Main Point
Kara Ramer 2013
The San Marcos City Council is largely ignoring resident pleas and silencing the overwhelming public vote by going forth with plans to allow the Cape’s Camp land tract to become future student development.
According to a Jan. 15 University Star article, the city council approved zoning changes to permit a new apartment complex called The Woodlands of San Marcos to be developed on Cape’s Camp. The 5-2 vote sparked opposition from many of the more than 75 percent of voters who said they wanted the 45 acres to be bought by the city and used as parkland. These votes were cast on the Nov. 6 ballots in a non-binding referendum, which means the final decision on the matter is left to the city council regardless of the voting outcome.
Most voters also said they did not want the city to get the land through eminent domain, the state’s ability to seize private property without the owner’s consent, or by raising taxes. However, the city still could have acquired the property as parkland through other means such as applying for grant money.
If the city ignored the public’s opinion on those two voting outcomes and raised taxes to compensate the developer for land, it would have been equally unresponsive.
The location of the Woodlands of San Marcos would be an inconvenient distance from campus, which would negatively affect the target audience: students. The increase of student transportation and traffic in the area would likely flood the surrounding neighborhoods with student vehicles and trams. This may fuel the fire between permanent residents of San Marcos and students housed near them.
Natural beauty is a key feature of San Marcos’ charm, and the city council and residents must do everything in their power to protect it. City officials need to draw the line regarding the limits developers have in proposing future construction projects. The river will not remain one of our main recreational resources if development around sensitive waterfront areas continues.
Although Texas State enrollment is growing at a fast pace, developers do not necessarily need to keep constructing numerous housing complexes at an equal rate. If every bed in every apartment complex and campus residence hall was full, then it may be acceptable to develop in parkland areas. However, the current amount of student housing in San Marcos seems adequate. Plenty of new apartment complexes have opened in recent years, and several commuters come in from the Austin and San Antonio areas.
For members of the opposition who say outdated student housing is detrimental to residents, older housing establishments are affordable and can be more beneficial for low-income students. The Woodlands at San Marcos may be nice, new housing, but the complex will likely be expensive for students with tight budgets. The money the city will get from property taxes on the apartment complex will likely pale in comparison to the profit the developers will be making off of students.
San Marcos officials, who are supposed to be the voice of the city, should try harder to align themselves with the ideals of the residents they were elected to represent.
This song is about the abuse of the lower San Marcos River by tubing companies who do not do enough to prevent pollution of the river and disturbance of the fish spawning grounds. Unfortunately, much of the river is not regulated by any local government agency. For the past few years the "Cool River Ranch" has sponsored a "Float Festival" that has polluted the river with thousands of beer and soft drink cans, plastic containers and bottles. Local governments do not have the enforcement or funds to properly regulate this festival- 20,000 people allowed in one day in 2018. The E. coli count in the river was high.