- Associated Press - Friday, February 5, 2016

GALVESTON, Texas (AP) - A coalition led by owners of property that includes Rollover Pass and land on either side of the man-made channel connecting East Galveston Bay to the Gulf of Mexico says it is prepared to fight a last-ditch legal battle to prevent the state from closing and filling what has been a hugely popular public fishing site and the focus of environmental, economic and public safety concerns since it was created more than 60 years ago.

“We’re going to fight it as long as we can, any way we can,” Wayne Stupka of the Gulf Coast Rod, Reel and Gun Club said of plans to mount a legal challenge to recently agreed-upon plans by Galveston County and the Texas General Land Office to use the county’s eminent domain authority to force the Beaumont-based club to sell the 16-acre tract as a prelude to 1,600-foot Rollover Pass being plugged and filled.

“We’re not going away, and we plan to go to the fullest extent we can to keep the pass open for the people,” said Ted Vega of the Gilchrist Community Association, a Bolivar-based group that works in partnership with the landowners to maintain the site and help fund its legal costs.

The Houston Chronicle (https://bit.ly/20ekm4R ) reports attorneys representing the landowners this week responded to Galveston County’s initial offer of $1.05 million for the tract, countering with an offer to donate the property to the county if the county would agree to sign a 99-year agreement to use the area as a public park and keep the pass open.

“I’d like to think the county would take us up on this very generous offer, but I suspect they won’t,” Stupka said.

If Galveston County pursues litigation to force sale of the property, the landowners will challenge it.

“Our attorneys believe there are a number of legal grounds on which to contest this,” Stupka said.

Under terms of a memorandum of understanding between the county and GLO adopted this past month, the state agency would pay costs associated with purchasing the land, including legal fees. As the GLO does not have authority to use the power of eminent domain, Galveston County, which is granted that power when the land in question is obtained for public use, would be the government entity to use that option for forcing the sale. The state land office, using more than $5 million specifically appropriated for the purpose by the Texas Legislature, would move forward with plans to close and fill the channel, then build a recreational area that includes a Gulf fishing pier and other outdoor recreation facilities on the site.

The move by Galveston County to begin the legal process of obtaining the land through eminent domain authority, approved Jan. 19 by a 4-1 vote of the county’s commissioners court, could be the final legal hurdle in what has been a long-running effort by state officials to close the artificial pass and stem what state studies indicate is significant environmental damage and millions of dollars in economic costs caused by the channel.

In December, a federal court turned down a legal challenge by attorneys for the Gulf Coast Rod, Reel and Gun Club to overturn a Corps of Engineers permit issued to the Texas General Land Office allowing the pass to be closed.

Efforts to close Rollover Pass have simmered since the 1950s, when the Gulf Coast Rod and Gun Club donated an easement to the Texas Game Fish and Oyster Commission for creation of a “fish pass” between East Galveston Bay and the Gulf of Mexico. The club, which at one time held more than 1,000 members but today has only a handful, had purchased the land expressly for the purpose of creating the pass. Such a channel, proponents said, would benefit the bay system by allowing high-salinity water from the Gulf into the bay’s often-fresh eastern end and creating a bay/Gulf exchange through which fish, shrimp, crabs and other marine life could easily migrate as part of their life cycle.

While the club granted an easement to the state’s fish and wildlife agency for the channel, with the state agency responsible for channel maintenance, it retained ownership of the land and opened it to no-cost public access.

The channel, dredged through the lowest and most narrow area of Bolivar Peninsula, was named after Rollover Bay on the bay side of the cut. Almost immediately after it was completed and opened in 1955, the cut became a highly productive and popular public fishing spot. It also saw unanticipated problems.

The channel was designed to be 80 feet wide and 8 feet deep. But the velocity of water during tide changes was much stronger than anticipated and within months the channel had eroded to 500 feet wide and 30 feet deep. The pass was quickly plugged and rebuilt using steel sheets to line the channel, preventing sides from eroding. The pass was reopened in 1958.

Almost immediately, a group titled The Texas Taxpayers Association began pushing for closure of the pass, citing costs to taxpayers of maintaining the pass.

In the late 1970s, the Texas Parks and Wildlife Department, formerly the Texas Game, Fish and Oyster Commission and the agency behind creation of Rollover Pass, proposed closing the channel, citing studies that indicated the influx of high-salinity Gulf water into the east end of East Bay had altered the bay’s salinity gradient resulting in significant decline in oyster production, loss of salinity-sensitive aquatic vegetation and associated declines in the bay’s ecological health.

Also, the pass was funneling millions of cubic yards of sand - as much as 150,000 cubic yards, annually - from the beach front into East Bay. That sand siphoning greatly exacerbating erosion along the beach front. The flood of sand pouring through the pass piled into the Intracoastal Waterway, causing millions of dollars in additional dredging costs to keep the commercial waterway open.

Public and political pressure killed the 1979 TPWD proposal to close the pass and did the same in 1996 when then Texas Land Commissioner Garry Mauro, citing environmental and economic costs, proposed closing the pass.

The current effort to close the pass began in 2009 when then Texas Land Commissioner Jerry Patterson convinced the Texas Legislature to fund a study on the feasibility of closing Rollover Pass and fund such closure if studies proved it warranted.

The state-funded study indicated the pass was costing Texas taxpayers millions of dollars, including about $660,000 a year in dredging costs in the Intracoastal Waterway and damaging East Bay’s fisheries. The study also cited cost of maintaining and repairing the Highway 87 bridge over the channel and the threat to public safety that the bridge posed. Hurricane Ike in 2008 severely damaged the bridge, almost destroying it and cutting off the only roadway exit off the peninsula. Temporary repairs to the bridge cost more than $600,000.

Studies funded by Rollover Pass supporters disprove claims of Rollover Pass causing environmental damage to East Bay, said Jim Blackburn, a Houston attorney with extensive experience in environmental law who represented the pass landowners in challenging the federal permits authorizing closure of the pass.

Recent increases in freshwater inflow into the bay, especially through the Intracoastal Waterway, ameliorate any increase in salinity caused by Gulf water coming through Rollover Pass, he said.

“I think if they close the pass, fishery yield in East Bay will decline,” Blackburn said. “For sure, East Bay will change significantly. And do we want to take that chance with a bay that’s a good, healthy productive ecosystem the way it is?”

The Patterson-lead state land office vigorously pursued closure of the pass. That position has continued under the agency’s current head, Texas Land Commissioner George P. Bush, with the agency asserting “cost to taxpayers, risk to the local community in the next storm and continuous damage resulting from significant erosion is too great to continue as-is.”

The fate of Rollover Pass will be decided in the coming weeks, Stupka said.

“This is pretty much our last stand,” he said. “What’s at stake? Just one of the most important places the average person - families and especially kids - can drive up to and go fishing or enjoy just being outdoors. Rollover Pass has been a special place for more than 60 years. We’re going to do whatever we can to try keeping it that way.”

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Information from: Houston Chronicle, https://www.houstonchronicle.com


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