Tuber ‘Can Ban’ In Hands of Texas Third Court of Appeals
By the time it’s put into practice, even a basic city ordinance can become complex and confusing.
Such is the case with the New Braunfels ‘Can Ban,’ which prohibits tubers from taking disposable containers onto the water, an ordinance that is now in the hands of the state’s Third Court of Appeals.
The New Braunfels ordinance was passed in 2011 with the intent to reduce litter on the Comal and Guadalupe Rivers.
In the ensuing years and until the ordinance was challenged in court, attorney Mick McKamie, who represents the City of New Braunfels, said the law helped it control the 100 tons of litter generated each year by tourists on the rivers.
“Cans, bottles, plastic, just anything you can name. But primarily related to used food and beverage containers,” McKamie said.
But river outfitters took the law to court, and last year, it was ruled unconstitutional by a state district judge. Attorney Jim Ewbank, representing the Tourist Associated Businesses of Comal County, said the judge agreed that the ordinance is unconstitutionally vague and arbitrary.
“So you could have a baggie, for example, a ZipLoc baggie. And you could have motor oil in it and you wouldn’t get a ticket. If it was empty, you wouldn’t get a ticket. But if it had animal crackers in it, you would get a ticket,” Ewbank said.
Ewbank also argued that state law prohibits cities from passing ordinances prohibiting any containers. McKamie disagrees – he said that was not the purpose of the law.
"You can have disposable containers anywhere. Any business like McDonalds, 7-11 or the river outfitters can sell anything they want. Anyone can buy anything they want. But the regulation relates to the behavior of taking them into these pristine waterways,” McKamie said.
A ruling on the appeal could take as much as six months. But both sides agreed, this year, river visitors will likely not be prohibited from taking all sorts of containers with them when they float the rivers in New Braunfels.