In Perpetuity!

On the whole issue of how to preserve the land in the NW Plan as natural open space, City Council today adopted the plan presented by staff – specifically by a joint City/PSB committee that worked on the strategy. The plan deeds and donates the land to the Texas Parks and Wildlife Department to become part of the Franklin Mountains State Park. If for any reason, the covenants which are placed on the land are not followed (use as natural open space and recreation in such an area), then the land reverts back to the City. (Fat chance as a TPWD official from Austin told City Council today.) If it reverts back to the City, then it becomes a City park and a conservation easement will be created with a land trust company at that time. Is the deal perfect? Many argue that a conservation easement should be placed from the very beginning or, at the least, the terms of such an easement should be worked out now. That may have been the best of all possible worlds – but what was proposed was what this Council could accept now. The bottom line for me was stated by Attorney Risher Gilbert in answering concerns that the land might not be preserved in perpetuity if it comes back to the City. Ms. Gilbert said: “It [the land] could be sold, but not developed.” It just doesn’t get more perpetual than that. In fact, the mere fact that Council members were wanting assurances of preservation forever, was in and of itself a sign that this proposal will work. Gilbert even gave assurances that she would add language to the contract that clearly states that the City’s intention is “never to develop the land.”

The team that made the proposal did hear what we were saying as conservationists and environmentalists. They incorporated our thoughts into a plan that would pass PSB and City Council – a huge task. Here's their presentation:

Conservation Strategies

As conservationists and environmentalists, many of us can choose to be unhappy because we didn’t get extra salsa with our chips. But let’s count blessings. First, if the proposal was what could pass and the proposal assures perpetual preservation (with an easement should it come back and plenty of language upfront to define covenants and intentions), then shouldn’t that be acceptable?  I think so and I choose to be happy about it.  Second, we have as conservationists – indeed as all El Pasoans – reaped some benefits from this whole process. We got a better NW Master Plan which utilizes Smart Growth/Smart Code. City Planners are now excited about Green Infrastructure/Low Impact Development and issues about rainwater capture and development strategies that help conserve water – an issue bigger than how to conserve several hundred acres just in the NW Master Plan. The entire concept of conservation easement is acceptable now to PSB members and part of the vocabulary of Council. One year ago and just up to a short while ago we could have all been at odds. Now we can shake hands and walk away as friends no matter what rhetoric or tactics were employed in debate.

Make no mistake: those of us in favor of preserving more land and protecting the environment must remain vigilant and engaged. There is much more to accomplish. Those in the conservation community have a big task ahead to do more educating. This is not to say that those who are not card carrying greenies are dumb. Quite to the contrary, they are thinking people who try to see not just a year from now but a hundred years from now. That more people are talking in terms of conservation means that what got started as a petition signed by 1,600 El Pasoans has been taken to heart by many more people. That heart and mind needs to be nurtured and it won’t be if some are seen as enemies and not the caring, thinking people that they are.

In my mind there is still one big issue outstanding: the preservation of the arroyos (which includes bridges not box culverts). The Low Impact Development engineering is yet to be worked out. The City is working with one of the best firms for doing this: the Crabtree Group. Still will we end up with concrete canvasses for taggers? Also, will we have a plan that takes into consideration the width of the arroyos in a 100 year flood scenario and not just a 50 year or less scenario?

City Council also recommended  Alternative 1 for a new access to the State Park. In addition, after hearing from Dr. Richard Bonart, they recommended a safe animal passage near the current entrance to the Park. The new access road which follows the small development area north of Transmountain and the proposed resort/park headquarters would be built as a Low Impact Development project (another leap forward) and can be configured in a way that is acceptable to the State Park protecting any sensitive areas. This alternative allows for money to remain on the table for a safe (and useable) animal corridor, hike and bike paths and the construction of a deer fence. I’m in agreement with Representative Niland and City Planner Gallinar that the small developed area north of the highway can be a place for outdoor supplies for hiking, biking, mountain climbing, etc. Again, the idea is to invite people into the outdoors – a sure way to make a conservationist and environmentalist out of anyone.

Of course, all of the above is my opinion and many of my readers will disagree in whole or in part. Your frank (but respectful) comments are always welcome. My attitude is this:  You celebrate if you get a touchdown but perhaps don’t make the extra point. You keep playing to score more points and, at the end of four quarters and a long season, you win the game and then the championship. Much more than that – you have a helluva fun time playing.

Finally, one last hurrah for El Paso sent to me by the guy who probably loves the lore of El Paso better than anyone – Jackson Polk. Read a July 2012 Chicago Sun-Times piece written by Laura Emerick: Architecture, art and history all meld in El Paso.

Untruths Continue to Circulate about Conservation Easements

From a story (Saving water, preserving land) by Colin McDonald in today's San Antonio Express-News, is this strategy for ensuring clean water:

"Levels of a colorless solvent that the Environmental Protection Agency links to liver damage and possibly cancer recently spiked in a monitoring well of the Edwards Aquifer on San Antonio's North Side.

"San Antonio's only defense against this and other pollution reaching its production wells is dilution from the clean water flowing into the aquifer from the rural land west of the city.

"To ensure that there is clean water entering the aquifer, the city's Edwards Aquifer Protection Program is about to spend an additional $90 million from a voter-approved one-eighth-cent sales tax to buy conservation easements over the aquifer's recharge zone. So far, the program has spent $135 million from the tax, protecting more than 90,000 acres."

The italicized letters are my emphasis.


San Antonio has had this enlightened, progressive program going for a number of years now. When the President of El Paso's Frontera Land Alliance, Mike Gaglio, urged Mayor John Cook and EPWU/PSB CEO Ed Archuleta to consider a similar approach in El Paso, his response was no response. Gaglio tells us:

"A few years ago I sent an email to Ed Archuleta and Mayor Cook about San Antonio's Conservation Easement Purchase Program and urged them to consider something similarly progressive in El Paso.  I never received a response.   It would be nice to talk to them about this and use it to demonstrate the excellent use of CEs by public entities for the purposes of water protection.  Frontera has contacts and maintains regular dialogue with the folks that actually put this program into place."

Again, emphasis is mine.

One of the principal stumbling blocks for finally bringing the protection of the Scenic Corridor to completion is the issue of a conservation easement. Petitioners asked that land in the NW Master Plan be preserved in perpetuity as natural open space along with some other requests. Many, but not all, petitioners are at least willing to see a scenario presented by Dover Kohl and approved by City Council as a compromise plan just as long as arroyos are preserved and natural open space (including the arroyos) are preserved in perpetuity. 

From the very beginning of working out "compromise" there has been a steady misrepresentation of conservation easements by PSB (and elpasonaturally believes) City attorneys. Hired PSB gun, Risher Gilbert, made some inaccurate claims publicly especially that municipally owned lands can never be under a conservation easement. In fact there are examples of such all over the country and in Texas and in El Paso: Thunder Canyon.

Now there are a new set of blatant untruths about the conservation easement process making the rounds in an effort to assure that the final legal product employed is one by which the City and/or PSB maintains control enough over the land to take it out of preservation at a time of its own choosing. 

The lies (and let's not mince words) go like this: Frontera Land Alliance is broke. Their management fees are too high. They have no back-up plan should  they indeed go broke. In an email, Charlie Wakeem, Treasurer of Frontera, repied:

1. Frontera "isn't" in the red!!!!  I should know.  I'm the Treasurer.  There's over $100k in the bank and no liabilities.   
2. Frontera has no management fee for CEs.  There are costs associated with starting up the CE, such as a survey, appraisal, attorney's fees, title search, and an environmental assessment.  Those costs can be negotiated between the Grantor and Grantee.  After the conservation easement is in place, the land trust solicits donations for an endowment to manage the terms of the CE, and not management of the land.  The property owner may or may not choose to donate to the endowment.
3. What happens to the CE if Frontera folds?  The CE runs with the land and another land trust would take over, and could be specified in the CE document, but is optional.

That's the truth. The question is whether members of City Council will hear it or be led by those who really don't want to give up control of the natural open space in question. Just look at Blackie Chesher Park - land given with the clear, unequivocal understanding that the land be used as a public park. In attempt to undermine that perpetual desire, the PSB and the City seem to have problems coming up with a proper deed and cannot even answer Rep. Eddie Holguin's questions. 

One more question: what possibly can be accomplished by spending tens of thousands of taxpayer and rate payer dollars to come up with something that a conservation easement already does? Answer: the top brass will spend your money ad infinitum to get their bloody way.

Conservation Easement?

Last letter I reported a timeline for completing the necessary ordinance work for the NW Master Plan including the preservation of the Scenic Corridor. This followed the March 20^th City Council decision to select the Dover Kohl scenario that included development on both sides of Transmountain while preserving 837 acres which is slightly more than the 780 called for in the petition. The plan, however, did extend Paseo del Norte across Transmountain which is congruent with TxDOT’s plan to build an interchange at that intersection but not in keeping with the petition language. The timeline quickly evaporated.  Planning  tells me that it will take more time to review the smart code application before that application goes to CPC and, one would hope, OSAB. This may take up to 4 or 6 more weeks. Parallel to the smart code application is the City’s legal department’s drafting ordinance language that includes the conservation. Nothing devious here by the way and a good reason for delay. A smart code application does take time.  A conservation easement requires a correct metes and bounds survey.  Planning wants to hold stakeholder meetings to review that language and that may take time to be done right. Certainly information about stakeholder meeting will be something many of you will want.

The biggest concern is the conservation easement piece.  As of now the EPWU’s hired attorney, Risher Gilbert, is working with City attorneys to fashion some kind of in-house conservation strategy. At the special PSB meeting that considered the Dover Kohl proposals for the NW Master Plan, Ms. Gilbert made the following five points about conservation easements:

1.       Conservation easements were created by the IRS in the 1980s to provide tax incentives for private property owners.

2.       Conservation easements are for private property only.

3.       Land trusts cannot hold conservation easements on public land.

4.       Conservation easements are inflexible and the land being preserved cannot be altered or used in any way.

5.       A “Conservation Covenant” is a different mechanism than CEs that can be used to preserve public land in perpetuity.  It would be an internal mechanism created by the City and/or PSB controlling the land. 

All of these statements are untrue except 5 and the proof is in the pudding on that one. Why re-invent the wheel unless you are adding a gear to control the wheel?

Also adding to the concern about how the City plans to conserve the land is this:  to my knowledge there has not been any communication between the City and Frontera Land Alliance, the only land trust organization in El Paso. This lack of communication has not been because City officials are unaware of Frontera. The Vice-President of that organization, Richard Teschner, first publically mentioned Frontera 18 months ago at a City Council meeting where Planning brass was present.  Teschner then and subsequently has mentioned to City Council Frontera’s willingness and ability as the El Paso area’s only 501(c)3 land trust organization to deploy and then manage a conservation easement on whatever acreage Council voted to conserve.   I have also raised the matter time and again with Planning staff.

In terms of a timeline, know that City Council at their last regular meeting (April 3^rd) postponed action on the actual language of the petition for eight weeks.  So stay tuned.

From the grapevine there is talk about a new petition to preserve all of the City land on the west side including the land in the NW Master Plan and everything north of it. We are also keeping an eye on efforts to get National Monument status for the Organ Mountains.

Here’s big news and an event a number of you may want to attend: A Texas-New Mexico Watershed Steward Workshop on water quality issues related to the Paso del Norte watershed will be held from 8 a.m. until 4 p.m. on May 9 at the Texas AgriLife Research and Extension Center, 1380 A&M Circle in El Paso.  (Map)

“The training is free and open to anyone interested in improving water quality in the Paso del Norte region, said program coordinators. Participants are encouraged to preregister at http://tws.tamu.edu.  The workshop is sponsored by the Texas AgriLife Extension Service and Texas State Soil and Water Conservation Board as part of the Texas Watershed Steward program. It is being held in conjunction with the New Mexico Environment Department, New Mexico Cooperative Extension and Paso del Norte Watershed Council.

‘The workshop is designed to help watershed residents improve and protect their water resources and gain a better understanding of how water quality in the Rio Grande is managed in Texas and New Mexico,’ said Galen Roberts, AgriLife Extension program specialist and coordinator for the Texas Watershed Steward Program.”

Read the full press release about the workshop.

You also may be interested in the efforts of Wild Earth Guardians for the Rio Grande.

Big issue: crops that consume lots of water such as alfalfa, cotton and pecans. Are large growers more interested in water rights with the aim of eventually “cornering the market” by controlling the supply of this precious commodity? This seems to be the motive behind the policy of Chuy Reyes, the General Manager of El Paso County Water Improvement District #1, his brother, Rep. Silvestre Reyes with the unwitting help of Senator Rodriguez of El Paso – the forces behind a new Texas State law that disenfranchised 75,000 voters, and made voter registration in the water district more onerous than many laws that once sought or now seek to deprive people of their civil right to vote.

Finally, Rick Lobello, the Education Curator at the El Paso Zoo, gave a talk recently to the new class of Texas Master Naturalists. One concept that is critical to urban planning is that of ecosystems services – the benefits that we derive from the ecosystem in which we live such as cleaner air, healthier soil, carbon sequestration, etc.. Learn more about it. Also, read a primer about ecosystem services from the United Nations Environment Program.