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Ban the Can public vote has rhetoric rising in New Braunfels 

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NEW BRAUNFELS — A petition drive pushed by a coalition of New Braunfels businesses that sued the city in September over a ban on disposable containers on the Guadalupe and Comal rivers inside city limits has pushed the matter to the public. On Tuesday, residents of New Braunfels will decide where they stand on the ban at the polls. Early voting, which began October 24, is already returning a record response, according to local news accounts.

The issue has grown so heated that former council member Kathleen Krueger, spokesperson for Support the Ban, cancelled a debate against former New Braunfels mayor Stoney Williams on the issue last week citing concerns about her personal safety. This was largely based on threatening statements made on a Facebook page of ban opponents. Krueger told local news radio show on KGNB: "The Can the Ban crowd have just raised their vitriol to such a level of profanity and violence that I just don't think it's safe for people to gather together anymore on this issue."

New Braunfels officials have argued the ordinance is necessary to prevent the Guadalupe and Comal rivers from becoming filled with trash and that the city has a duty to the people of New Braunfels to protect the rivers’ quality. If the public vote is unsuccessful in stoping the ban from becoming law in 2012, a lawsuit filed September 28 in Comal County District Court — the most recent action taken in a political saga that has lasted more than a decade — will roll forward.

Members of Can the Ban, one of the political action committees allied with the Tubing Related Businesses of Comal County, says that while litter can be a problem, the city is using it as an excuse to ratchet up government control of public rivers. Can the Ban was largely responsible for collecting enough signatures to put the issue to a public vote.

The Guadalupe and Comal are popular destinations for the recreational activities of tourists and residents alike. On both rivers, groups lazily float downstream while sitting in inner tubes and oftentimes these trips are supplemented with adult beverages. It is not unheard of for fun-loving tubers to get a little loose during these trips, which can last up to four hours.

NB Mayor Gale Pospisil said that because of the drought this year, which rendered much of the Guadalupe too dry for tubers and filled the Comal past its capacity, New Braunfels police made way more arrests than usual related to overly-intoxicated tubers. Pospisil cited lewd language and behavior, trespassing, public urination, and noise complaints as problems officers had to deal with. In the aftermath, trash littered the riverbeds and banks and overflowed from trashcans, requiring the city to direct massive day-to-day cleanup.

Ordinance 2011-65 was first heard by the council on August 8, 2011, and approved on August 28, stating: "It shall be unlawful for anyone to use, carry or possess food or beverages in a disposable container on or in the public waters of the Guadalupe River or Comal River.” A disposable container is further defined as “a receptacle designed to be used once, then thrown away” and includes metal and aluminum cans, glass containers, Styrofoam cups and containers, cardboard containers, paper sacks, boxes, paper napkins and towels, and plastic containers and utensils.

The City Council of New Braunfels asserts its primary goal in creating such ordinances is to manage its waste issues. The ordinance says litter left by those engaging in the recreational activity of tubing has caused the city to spend “hundreds of thousands of dollars and thousands of man-hours each year on the cleaning of containers and other foreign material from the rivers.”

Tubing businesses, or outfitters, charge a $1.25 management fee to each person renting, which is then paid to the city to fund river security and cleanup. The outfitters also provide tubers with mesh bags for their trash and organize volunteer river cleanup days. Still, the city says, it’s not enough.

Tubing is a favorite pastime of many residents and tourists alike. Dezirae Garza, 23, lives in New Braunfels and commutes to school in San Antonio. She thinks the ban is likely to make the river atmosphere crazier because people will adapt by bringing liquor, in a legal container, in lieu of beer in disposable cans. “Just fine people if they litter. Put up signs and fine them all day,” Garza said. “If people have to pay $500, maybe they’ll stop.”

The lawsuit was filed by a coalition that includes the tubing outfitters Rockin’ R River Rides and Landa River Trips; beer wholesalers Tri-City Distributors and Wright Distributing Company; retailers Sac-N-Pac and Pit Stop Food Mart; and others that provide tubers services such as the restaurant Buffalo Wings and the Wingate by Wyndham hotel.

Another outfitter, Texas Tubes, was originally listed as being part of the lawsuit, but owner Colie Reno has since said it was a mistake. There is a conflict of interest, Reno said, as he is a member of the recently formed Ad Hoc River Committee. The 13-member committee was created by the Council to brainstorm sustainable river management issues, but their only power is that of suggestion.

In 2000, the Texas Alcoholic Beverage Commission chose not to act on a petition submitted by the New Braunfels Council asking for permission to prohibit open containers and public consumption of alcoholic beverages on rivers within city limits. The TABC preempts all city alcohol regulations. Therefore, the city was not able to institute a desired broader ban.

Ordinances imposed in 2007 brought tubing-related issues back to the forefront of community conscience in New Braunfels, when the City banned beer bongs and Jell-O shots, limiting the allowable size of coolers to 16 quarts and making it illegal to drink alcohol in public parks. In response, a lawsuit, similar to the one filed this month, was brought against the city by a group of New Braunfels business owners called “Stop The Ordinances Please,” or STOP for short. The suit couldn’t prove the law had harmed businesses specifically, distinct from harming the public at large. Now, these businesses are ready to prove they feel a distinct harm.

There was other headway made 2007, concerning the ordinance’s constitutionality in regards to state waterways. This same point is emphasized in the most recent lawsuit, though a ruling has yet to be made in support of the argument used by the opposition in 2007. The Guadalupe and Comal Rivers are designated “navigable waterways,” which are owned by Texas and thus regulated by its State Constitution under Article XVI, Section 59. Primary authority over water quality issues is given by the state to the Texas Commission for Environmental Quality. TCEQ maintains the Texas Water Code, which does not ban disposable containers on such waterways or, as the recent lawsuit points out, authorize any city to ban such containers.

The Third Court of Appeals decided in 2010 that this was a legitimate point and sent the case back to Comal County District Court, where it is still pending. Some have suggested the two lawsuits could be combined in light of recent developments. The “navigable waterway” issue is no less legitimate now, said the coalition’s attorney Jim Ewbank of Ewbank & Harris in Austin.

The coalition also alleges that the ordinance is preempted by the Texas Health & Safety Code's Solid Waste Disposal Act, which states: "A local government or other political subdivision may not adopt an ordinance, rule, or regulation to prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law." The TCEQ is in charge of all regulations related to city trash. The act further specifies that this includes waste related to recreational activities.

These arguments are also supported by the tubing business claims that they “substantially rely on the recreational river traffic for their economic livelihood.” The lawsuit alleges “the Ordinance will severely damage their market for goods and services and have a major impact on their customer base.” The benefits of tourism in New Braunfels are undeniable, but there are conflicting opinions on the financial impact of river tourism specifically. A mailer sent by Can The Ban said tourism is responsible for more than 7,000 jobs and $500 million in the city of New Braunfels. “When tourism revenue drops,” reads the mailer, “tax payers will be expected to make up the difference.”

Reporters at KGNB 1420 AM disputed these facts in an investigative report, saying that the ban’s economic impact would “likely” be “far less than claims by Can the Ban.” Lower figures cited by the station, from a report by the New Braunfels Economic Development Foundation, said that direct annual river tourism spending accounted for only $22.5 million. However, the report is dated 2006.

Can the Ban’s spokesman Mark McGonigal said these tourism figures are directly and indirectly related to the rivers. “There’s a trickle-down effect. Those indirect people fall if the other people fall,” McGonigal said.

Many residents are conflicted about the impact of river tourism on the local economy and the ban’s potential for change.Chris Caballero, 28, manages the Chili’s in New Braunfels. The restaurant is located about 10 minutes from the Comal River. “All of the businesses in this area will be affected,” Caballero said. “We get a lot of people coming in here from the river. Business already slows down after the summer season, and now this?”

Legal language in the ordinance alludes to the city’s previous issues being trumped by state law. It begins by affirming its power to regulate, under the Texas Constitution, “for the public peace, health, safety and general welfare of its citizens.” The ordinance in question claims to protect the health, safety and welfare of citizens and visitors by prohibiting disposable containers on the Guadalupe and Comal, which allegedly impact the water quality of those rivers.

The ordinance also takes great effort to stress participation with the Edwards Aquifer Authority’s Recovery Implementation Program and Habitat Conservation Plan, which “will require New Braunfels to implement certain programs with regard to the restoration and protection of the Comal River including the expansion of monitoring water quality.”

Those opposed to the ban dispute the city’s figures concerning the amount of litter collected from New Braunfels’ rivers. Mark McGonigal claimed the city’s numbers “were inflated by as much as 80 percent.”

City officials are in disagreement about the exact methods used in calculating the amount of litter. Staffers also recanted on previous statements that the Comal River System qualified as a “critical habitat” for certain endangered species, which would make it subject to federal regulations on recreation. An endangered species conflict would potentially shut the Guadalupe and Comal rivers down to recreation until their quality is restored.

Facts continue to be muddled amid a slew of propaganda and name-calling. Can the Ban’s Mark McGonigal initiated a petition for the recall of Mayor Gayle Pospisil, an avid supporter of the recent ban. Former councilman Ken Valentine was recalled following his avid support of the river ordinances passed in 2007.

Meanwhile the tubing-related businesses fighting the ban will throw out their lawsuit against the City if the public votes against the ban, according to the coalition’s attorney Jim Ewbank. If the public vote supports the ordinance, the coalition will pursue the lawsuit and the ban on disposable containers will go into effect on January 1, 2012 as planned.


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