Despite some talk that they might wait awhile to take action, the New Braunfels City Council has voted to ban disposable food and beverage containers – think cans and bottles – on waterways within its city limits.
The law covers the Comal River and a small section of the Guadalupe River that passes through the city. It does not affect the lion’s share of the Guadalupe below Canyon Dam, which is outside the city limits.
The ban covers aluminum cans and plastic bottles. It also includes paper towels and disposable utensils.
Mayor Gale Pospisil directed the city’s staff to draft the ordinance two weeks ago after a long, hot summer. The drought has rendered stretches of the Guadalupe too dry for tubers to float. City officials say that as a result, crowds, citations, arrests and litter are at all-time highs on the Comal, a 2½-mile-long spring-fed river that winds through the center of town.
There was some loud opposition at the Council meeting, and some predictable wailing and gnashing of teeth elsewhere. I understand how people may be upset at this, but I liken this situation to Lights in the Heights in my own neighborhood. It’s gotten sufficiently big and rowdy that many of the people who actually live there and are directly affected by it don’t want to deal with it any more. I totally understand where they’re coming from on this.
Which is not to say that the action Council has taken will withstand challenge.
Sitting in the audience was James B. Ewbank II, an Austin attorney representing Tourist Associated Businesses of Comal County, an organization whose members sell disposable containers.
“If you pass this ordinance,” he said, “there will be a lawsuit.”
The city has passed several ordinances in recent years in efforts to modify rowdy behavior on the Comal, including a restriction on the size of ice chests and the imposition of a fee on tube rentals. Both of those laws are being challenged on appeal.
In addition, a 2000 attempt to ban alcohol on the river was disallowed by state law. That concept of superseding state law will be the basis of the new lawsuit, Ewbank said. A 1993 state law prohibits cities from banning disposable containers. It was intended, he said, to keep recycling and sanitary disposable laws consistent from town to town.
“You are about to pass an ordinance that is directly prohibited by the Texas Health and Safety Code,” he told the council.
“We would ask that you reconsider,” he said, “based on the legal consequences.”
Opponent Jay Patrick suggested that residents be allowed to vote on the ban in November.
“A vote of the people would legitimize this issue once and for all,” he said.
I’m not qualified to evaluate the threat of a lawsuit, but history suggests there could be something to it. I do know that previous Council actions against unruly tubers resulted in a successful recall effort against one of the main players. I will not be surprised if a similar effort is launched now. One way or another, this is far from over.