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Mary Kelly

DATE: November 12, 2018
LOCATION: Austin, Texas
TRANSCRIBER: Robin Johnson
REEL: 3465

DT: My name is David Todd. I’m here for the Conservation History Association of Texas. We’re in Austin, Texas at the home of Mary Kelly and it is November 12, 2018 and we, uh, are fortunate to be talking to her about her career, uh, as an environmental lawyer who has worked for, uh, uh, private firms, for non-profit groups and, um, has worked on water issues as well as many other environmental concerns. And with that, I would like to thank you for taking time.

MK: All right. Let’s get started.

DT: Um, so, uh, we like to start these interviews with, um, a origin story, you might say, and is—is there perhaps some kind of early experience of a mentor, a teacher, a friend, a family member, or your own private experience that might have, uh, opened the door to an interest in the natural world?

MK: I think for me it’s where I grew up. So, born in Aspen, Colorado and lived there till I was about eight and then ultimately moved to Tucson for grade school through college. And both of those places are beautiful. Water’s an important place in both of them, from the mountains and Maroon Bells and Castle Creek and Maroon Creek to desert arroyos and beautiful, small streams that are sort of the miracle water in the desert. I think tho—that experience influenced me the most. My father was a wonderful man, uh, but he didn’t push me in any particular direction. I got to choose.

DT: So you told us a little bit about growing up in Colorado and Arizona and, uh, and maybe we could go to a—a—an sss—following chapter. I believe you went to the University of Arizona and graduated in 1979…

MK: I did.

DT: …as a chemical engineer.

MK: That’s correct.

DT: Took your degree in that. Uh, can you tell us a little bit about, um, that interest and that discipline, uh, and what role that might have played?

MK: I’m really not cut out to be an engineer. [laughing] It involves a lot of math. I’m not very good at math but I think the similarities between chemical engineering and law are they’re oriented towards problem solving, at least as I view them. And so I learned a lot about how to solve problems in chemical engineering. I knew I didn’t want to make chemicals or make plastics but the thought process that you learn as an engineer is very applicable to law.

DT: And—and your interest in law took you to the University of Texas, is that right? Is that…

MK: Uh, it did. I just happened to be living in Austin, so books were cheaper than tuition, or tuition was cheaper than books at that point so I went to UT.

DT: And—and was there any sort of, uh, early window into, uh, environmental law or—or other conservation interests while you were at law school?

MK: Well I think coming out – I worked as an engineer for four years. Uh, mostly I worked on air pollution issues, um, new technology like dry flue gas desulfurization to take the sulfur out of sulfur emissions out of coal plant exhaust. And so I worked in the environmental field starting out. But then going to – sort of tried to choose between going to policy school and law school and was encouraged by my now husband to go to law school instead of policy school and I knew I wanted to do environmental law.
I didn’t really want to do any other kind of law. So I had a few deviations now and then but that’s what I wanted to do.

DT: And so well tell us about the experience in law school once you were there?

MK: So two things probably important about that. One was Tom McGarity, who was the environmental law professor, who was just an enormous influence on me in terms of a career dedicated to environmental law and being able to push the boundaries. So he was great. And then I clerked all through law school at the Attorney General’s Office. So I worked most of my way through law school and, uh, Jim Matthews, Nancy Lynch, Brian Berwick, probably a number of people that you know were—were good mentors and really got me started.
And I loved—I loved the work part but certainly more than I loved law school.

DT: Well di—maybe you can, uh, try to flesh out some of the—your experiences, uh, at the Attorney General’s Office. Do you remember any of the cases? You mentioned some of the—the assistant AGs that you worked with. Could you describe some of them?

MK: Yeah. Don’t know if I remember many of the cases. I remember Jim Matthews giving me plenty of opportunity like “you just go over to the legislature and represent the AG’s office” as the law clerk. He was—it was a very much an “into the fire” kind of office and that was great. I ha—I honestly can’t remember any specific cases I worked on [laughing] there. But, you know, most of it was representing agencies, in appeals, things like that.

DT: And—and it was—was it across the board—it was air pollution…

MK: Yeah.

DT: …water pollution.

MK: Everything. Anything that they needed help on, I worked on. So it was a great way to learn. Lot of independence actually for working at a state agency. Um, and a good—much more, uh, sense of what the practice of law was about than law school.

DT: You know, it’s—it’s intriguing to me that—that, um, the Attorney General’s Office is not a static place, that it’s sort of fluid and that even programs can go away. And I think Environmental Protection Division, if I’m not mistaken, became Natural Resources Division and later just seemed to disappear. Is that right, um?

MK: I don’t know too much about the current status. I think it is actually one area of the Attorney General’s Office that hasn’t changed all that much in terms of mission, whether the names of the department have changed or not, if the division have changed or not. Uh, it’s unique in that there are several lawyers that have been there for twenty or thirty, forty years—Dave Preister, Ken Cross. Brian [Berwick] was there for a long time so it had a core of lawyers that were able to do their job pretty much under whatever attorney general.
That’s not, you know, there’s definitely some differences in the current Attorney General, uh, than there were, for example, under Jim Mattox but it’s still a strong division I think.

DT: Well I think that—that your, uh, work in the environmental law field starting as a clerk and then, um, after you got out of law school, what was your first step?

MK: I was drafted into going to work with Stuart Henry. So my now husband, Rick Lowerre, was Stuart’s partner. Sorry, little hard to tell the story . But, um, so Rick was Stuart’s partner. And Rick went to work for Jim Hightower. And Rick said Stuart has to have somebody who can keep things [laughing] together. And so I went to work with Stuart right out of law school and I had tons of cases even before I’d passed the bar because, at the time, you can practice before the state environmental agency without having passed the bar.

So I was studying for the bar, working on cases, and, uh, Stuart’s only associate in the law firm at the time.

DT: And this—so the—the firm at the time was called Henry and Kelly, is that right?

MK: Not the first year. It was Henry and Associates the first year. So I made $39,000 the first year, uh, which was less than I’d been making as an engineer. And the second year I became a partner and it was Henry and Kelly and I made $19,000 [laughing] so it was going in the wrong direction.

DT: Uh, and—and maybe you can tell a little bit about the scope of the practice at, uh, Henry and Associates, um, and—and its future progeny.

MK: Right. So a totally unique practice, right. It’s a for-profit law firm but it represents citizen groups and ranchers and farmers, every once in a while the city government or a county government, um, its theory was kind of those who can pay, pay for those who can’t but it worked across a range of environmental issues from uranium mining to reservoirs to hazardous waste to water rights, almost any environmental issue you can name—pecan tree protection.
There are some pecans in Marble Falls that were killed by a pesticide so we tried to figure out whether we could recover for that. Um, but just, you know, whole range of issues but always on the pro-environment, pro property rights side of the docket.

DT: Well and that’s—it seems interesting. I can imagine that the political spectrum would be pretty wide, although the focus was pretty narrow. I mean, it—I could see some property owners being, um, you know, pretty firm on—on traditional kind of, uh, conservative values but then you’ve got nonprofit groups that would probably be more progressive. Um, is that fair to say?

MK: Farmers are the most radical environmentalists ever when it comes to their land. If you want to put a hazardous waste well next to a farmer’s land, you can bet you’re going to find some opposition and some pretty strong opposition. I think the most interesting thing about it was the leadership that arose in the communities.
Uh, so if you’ve got a rural community, let’s say Roby, Texas—they’re out there living their lives and some guy comes and wants to put a commercial hazardous waste injection well out there, their ability to organize themselves, raise money to pay the lawyers, keep the community together, work the politics—sort of a fascinating study in how, uh, rural America approaches problems. And it was—it was a great experience. We had cases all over the state.

DT: And where was most of the practice—in Texas, is that…

MK: That practice is only in Texas, correct. Yeah.

DT: Did you ever feel that you were part attorney and part community organizer?

MK: Oh yeah. You were part attorney. You were—mostly you were your own expert. So I remember we had a hearing down in, uh, near Corpus Christi, Robstown, and there was a group of farmers fighting the expansion of a hazardous waste site—at the time the only commercial hazardous waste site in Texas—and they didn’t have any money. They had enough to kind of pay us but the other side had attorneys, lots of experts, lots of suits.
And so I decided in the first session of the administrative hearing that I would just bring my chemical engineering books and sit them on the table [laughing] because I was pretty much my own expert so I just wanted to have a little demonstration that, in theory, I knew something about chemicals and hazardous waste. So, you know, it was a mismatch almost all the time in those kinds of hearings. But we won a lot. That permit was limited. They asked for a ten-year permit for a commercial site. It was limited to five years with a ton of restrictions on it.
So we didn’t—wasn’t a complete win but that’s the way most of the cases were. And we defeated a lot of things but mostly you got better conditions or tougher enforcement, uh, rather than an outright shut it down.

DT: I think you—you mentioned in passing that—that, uh, a number of the opponents that you faced, uh, could bring a lot of money and clout and I think you said suits, which I think you mean male suits. And I’m curious if—if, at the time, it was unusual to be a woman as a lawyer, as an environmental lawyer. Is that—is that the case or no?

MK: Oh yeah. And, you know, that’s—it’s a way that Stuart was great. He would just say these are your clients. You go deal with them and so you go out to, you know, Brady, Texas and they’re kind of, “Now who’s this little lady? Why is she here?” So there was a ton of that but not in a mean way or anything like that. And it was—it was great to make you stand up for yourself and show them you could do it and, uh, learn a lot. Then my law partner always called me babe anyway. [laughing] So…

DT: Would you mind talking about little bit about your partner, Stuart?

MK: He’s great.

DT: Stuart Henry.

MK: Yes.

DT: He passed away recently and was I think a founding father for a lot of the environmental law practice in Texas.

MK: He was.

DT: Uh, and can you describe a little bit about what you learned from him?

MK: Well, Stuart was, as you know from your interview with him, which I watched after he passed away because it was like this really great vibrant picture of Stuart, which was really fun. You know, he was tough as nails. He wasn’t exactly a lawyer’s lawyer. He was about what was right and what was fair and he would wrestle the law into that position if he had to but it wasn’t what the law provided in the first instance. Um, he was full of—I’ll just admit it—he was full of bluster. He was cra—you know, he was a crazy man most of the time.
He would go into a deposition—I’d come in and I’d have my notes completely prepared, questions written out, spaces where I could write the answer that they were going to give me to my question and I’d just think it was going to go like that. Stuart would come into a deposition with a blank yellow legal pad with the witness’s name written at the top [laughing] and he would get a lot more out of that witness than I would.
So he was—he was a, you know, he had the—the energy and the doggedness of a lawyer without necessarily the whole intellectual underpinnings of where he was going to head with the law.

DT: It was just too force of character and personality.

MK: Force of character and force of a—a sense of justice, a sense of what was right and wrong and just persevere, you know, perseverance. He didn’t never—he never gave up. But he would, you know, he built a firm along with Rick that has produced, you know, probably in total ten environmental lawyers who are still practicing in one form or another and each of whom I would venture to say is one of the best at what they do.

DT: Um, could you maybe list a few of the—the lawyers that have come through that firm?

MK: Melinda Taylor, who now is a Professor of Law at the University of Texas and actually ran Environmental Defense Fund’s Ecosystem Program for many years. Myron Hess, who had a long career both at Parks & Wildlife and at National Wildlife Federation. Uh, Ilan Levin, who I think has his own pr—Environmental Integrity Project now. Kelly Haragan, who runs the Law Clinic at the University of Texas. Uh, Jim Robertson actually worked at the firm for a while.
Jim is now Director of Planning in Boulder but was the Director of Planning here in Austin for a long time because he went off and became an architect instead of staying as a lawyer. There’s a ton more of them but, yeah.

DT: Incredible.

MK: Tom Mason, David Frederick.

DT: Shouldn’t forget. Um, well while we’re still talking about—about the firm, um, and its place in Texas history, uh, would there be any other cases that you could maybe describe so we get a flavor of what—what the work was like?

MK: Well, uh, the fi—one of the early cases I had was, uh, one that had been started by Rick, where he represented Sierra Club and it was, um, uh, the co-plaintiff was Environment Defense Fund. So EDF and Sierra Club sued the State or, or sued EPA for its approval of the State of Texas’ water quality standards. Water quality standards, of course, govern, uh, what can be discharged into all of our surface waters. Big deal, right. These standards apply statewide. They’re revised every three years.
And they sued EPA because they said those Texas standards were too weak and shouldn’t have been approved. Well everybody and their brother in the industry intervened in that case. So there was the chemical industry. There was the Ag industry. There was the utility industry. They were all represented by multiple lawyers. And then all the agencies intervened and supported the standard. So you had, uh, actually Parks & Wildlife was on our side but you had whatever the environmental agency was at the time supporting it and others.
So they—and then EPA, of course, is the main defendant. So the—it was a multi, multi, multi-party case. I did most of the work on it before I passed the bar, uh, just myself and Jim Tripp, EDF, was my co-counsel. That’s a person I learned a lot from. Uh, and we ultimately settled the case and we got a lot stronger standards. And on paper, Texas had some of the strongest water quality standards in the country after that case. So we tried to pick—we did both individual fights, you know, this land, or landowner opposing that but then we tried to pick some bigger policy cases, most of which we did either pro bono or for low fees.
Then, of course, Stuart and the Edwards Aquifer Case, which I’m sure you know, you’ve already got a lot of oral history about that case but, uh, that was while I was there. He did a lot of that work where he and Guadalupe Blanco River Authority sued to protect the endangered species and the flows out at Comal and San Marcos Springs. And that resulted in legislation in one of the most, um, progressive and effective groundwater districts in the entire country in the Edwards Aquifer Authority.
So we did a lot of big policy cases as well as just helping people save their streams and save their land and save their groundwater.

DT: I think while you were describing, uh, the—the—the water quality standards case, you—you—you mentioned something that’s I think interesting to me is that, uh, you had one state agency that was supporting you and another state agency that was against you.

MK: It was tough for the Attorney General’s Office on that one. [laughing]

DT: So ho—ho—what was the relationship between this environmental law firm that you were working for and the environmental agencies that were also stewards of the natural world?

MK: I would say with the environmental regulatory agency, which went through a million names, right, Texas Water Commission, Texas—what was it—train wreck we used to call it—Texas Natural Resource Conservation Commission and then now it’s called TCEQ, Texas Commission on Environmental Quality. The relationship with them was, more often than not, adversarial because they were the permitting agency and we represented people who didn’t want those permits to be issued or wanted TCEQ to take stronger enforcement actions.
So mostly that was an adversarial relationship I would say. Texas Parks & Wildlife was different because they were really charged, um, for example, with protecting streams and rivers and the wildlife and the fish that depended on those streams and rivers. So often there was a—at least an alliance of views. They were carrying out their statutory mandate, not what we wanted them to do but often there was a natural alliance there.

DT: Uh, this might be a good time to, uh, to move on to a—a subsequent, uh, section of your life. Uh, you I think in—in, uh, 1989, you took on the job of executive director for a, uh, group called the Texas Center for Policy Studies. And I was hoping that you could give us a—a—a description of what the—the group was about and what your role was there.

MK: So it was a pretty unique organization. It was begun back in the early 1980s by a woman named Tani Adams, uh, who subsequently went on to do a lot of work in Latin America. And, at the time, it was the Texas Center for Rural Studies and it really focused on pesticides and farm workers. When I took—I had been on the board of the Texas Center for Rural Studies—and when I took over, we changed the name to Texas Center for Policy Studies because we were working on a broader set of issues.
It’s a sm—was a small nonprofit, uh, but it attracted, through our projects and I would say serendipitous timing, uh, we attracted a lot of funding from national philanthropic organizations which had never invested in Texas before. So Ford Foundation, Rockefeller Brothers, the Noyes Foundation, um, Hewlett—foundations that had never invested in Texas before and really haven’t invested much in Texas since honestly. But we had a—a broad range of issues. I think what attracted that national funding were, uh, two projects we had.
One was when the savings and loan, uh, bailout occurred. Those savings and loans held a lot of undeveloped property and we worked with Trust for Public Lands and the Nature Conservancy and others to actually get those assets transferred to conservation organizations, to take them off the development market, which was—and we used legal tools, threat of EIS litigation, as well as economic arguments and building alliances with other developers who didn’t really want the competition, right. They were happy to see those lands go into conservation.
Uh, so that was one thing that attracted national funding because that was a case in many other states—Florida, Arizona—other states now have big, protected areas that resulted from those, uh, lands held by the S&Ls going into conservation. And then it was also the time where there was a lot of pollution along the border from the Maquiladora industry that had developed on the northern border of Mexico, uh, along the Rio Grande with Texas and actually throughout the border—Arizona, New Mexico, other places and, uh, also with the beginnings of the discussion of the North American Free Trade Agreement.
And a lot of the natural, uh, national philanthropic organizations were interested in what was happening there. And we—the Texas Center for Policy Studies and something called the Border Ecology Project in Arizona were the only groups on the border working on those environmental issues. And I think the Texas Center for Policy Studies uniquely reached out to organizations in Mexico—where are the conservation organizations, where are the environmental organizations—and they were pretty nascent at that time, right.
This is the late ‘80s, early ‘90s but there, in fact, were a few. They had mostly been focused on wildlife and forest protection, uh, but they were developing groups that were for, uh, focusing on toxics and human rights. And so we built this big binational network, uh, between Texas groups and their counterparts in northeastern Mexico. And that was unique and amazing and we made a ton of progress and it just kind of breaks my heart today to look at what’s happened to the border. But that was—it was interactive. It was integrated.
We had Texas groups supporting the groups in northern Mexico and what they wanted. It was very much a two way street and it was a—for me—it was a fascinating experience because growing up in Tucson, I had always been attracted to the border and I’d always wanted to work in Mexico so it was a great experience.

DT: Um, maybe you can fill this out—the picture that you’re—you’re drawing—um, what—was some of what you were seeking, um, like NAD Bank, uh, investment in wastewater treatment or was it more regulatory or was it just…

MK: No, it was all like what can we get out of NAFTA to help the border. So we got a couple of things. One, we got the Border Environment Cooperation Commission and NAD Bank, which has invested over the years in water, wastewater, landfill, all kinds of projects to improve the quality and the environment on the Mexican side of the border. And then we got something called the NAFTA Environmental Side Agreement, um, which wasn’t as strong as it should have been but it was something.
It put environment on the table with trade, allowed for scrutiny of enforcement of environmental laws in U. S., Canada, and Mexico, uh, resulted in something called the Commission for Environmental Cooperation which is a North American body, uh, that looks at environmental issues across the continent. So we—we tried to leverage NAFTA to get some improvements. And then we did a lot of work, frankly, with reporters. Can’t tell you how many reporter trips we did to the border to show the pollution coming from maquiladoras and to show the effect on people there.
So that, um, was good work. It’s hard work. There’s not a lot of enforcement in Mexico and people need jobs, um, pollution be damned. But I think, you know, I would venture to say that conditions improved throughout the early ‘90s as the corporations became subject to more public scrutiny.

DT: Wha—sounds like a lot of the—the structure that you’re doing this work through was—was the basically kind of the architecture for—for NAFTA and I’m curious if you’ve followed the recent revisions to NAFTA and has there been any sort of effect on that?

MK: You know, it’s funny you should mention that but I just talked with one of my partners last week about we need to do an analysis of what the environmental provisions are in the draft follow-on agreement to NAFTA, whatever it’s called—U. S. Mexican—I don’t even know what they call the Canadian agreement now—USMCA—which is not very catchy. But—I need to look at that is the big question. It’s on that—it’s on that to-do list right here.

DT: Um, I think one of the things that—that, uh, Texas Center for Policy Studies is—is remembered and—and noted for is the, uh, Texas Environmental Almanac that y’all did and I was…

MK: Yeah, that was a great project.

DT: …hoping that you could describe that.

MK: So that was a pretty amazing project. That was Mary Sanger and Cyrus Reed, uh, who worked with me at the Texas Center for Policy Studies. And they, um, and I decided that there was no one place you could go to look at information on the Texas environment, uh, across the board. What programs are in place? What agencies are there? And what’s the condition of the environment? You know, now you can Google everything. Back then, there wasn’t one place you could go and look. And so we put out two hardcopy versions of the Texas Environmental Almanac.
We did all of the research, the data gathering, the writing. Uh, Texas A&M, Shannon Davies, was our publisher. She was fabulous. Is—you know her. She’s great person. Um, and it was really popular and you would go into bookstores and still see the Texas Environmental Almanac sitting out there on the—on the table. So that was—and people loved that resource. They used it a lot. And we attempted at one point to put it online but the amount of work that’s necessary to keep updating it, that’s a pretty major project.
So I think it might still be up online somewhere but it’s old.

DT: And—and I guess a lot of the—the data that is presented there, um, came from state and federal local agencies. How did you get that information? What…?

MK: Just you spent a lot of time in the file rooms of the agencies. Some of it was digitized and you could review it but most of it wasn’t. We created all of our own graphics. Remember Harrison Saunders? We created all of our own graphics. N—they didn’t exist before we did them. So it was a—it was a major project and it was, um, Meadows Foundation was a great supporter of that, Houston Endowment, I think probably Wray Trust supported that. It was—and then we had a good partnership with, uh, Sherry Matthews Advocacy in, uh, helping us to design it.

DT: Well and I guess, um, it was not only then a—a document trying to present data but it was also, um, sort of making an—an argument about protection of the natural environment. Is that fair?

MK: We spent a lot of time editing ourselves to try and maintain an objective tone because it wasn’t supposed to be a polemic. But it definitely had a point of view I would say in that here’s what’s going on with the Texas environment. Here are the programs that are, in theory, designed to address those problems. Here’s the data that shows whether they’re working or whether they’re not working.

DT: Uh, you know, you’ve worked in Mexico, uh, along the border, the statewide effort through the Texas Environmental Almanac but, uh, you also had a special interest in the Hill Country and—and, uh, helped get the Hill Country Roundtable started and I was hoping you could talk to us about that.

MK: So this is very much all credit due to Mary Sanger but while we were at the Texas Center for Policy Studies, we had a lot of people coming to us from the Hill Country saying counties have no authority to regulate development. There’s increasing pressure on our water resources and we’re losing the character of this region. And so we started to convene what we called the Hill Country Roundtables and we brought in, for example, we’d bring in speakers from the East Coast or other parts of the country to talk about conservation-based development.
How can you dev—design subdivisions where not everybody has their ten-acre plot but you have smaller lots and then you have a common green space. Uh, and we talked about what would it take to get counties land use control authority. That clearly still hasn’t happened. I remember somebody telling us that, uh, the legislature would rather give machine guns to monkeys than give the county the authority. So the long row to hoe still there. But it did bring together business interests, landowners, conservationists, uh, groundwater districts, water utilities, and a wide range of interests in the Hill Country.
And out of that grew the Hill Country Alliance started by, uh, Christy Muse is their first executive director with a very diverse board and now run by, uh, Katherine Romans and they’re just doing great work out there I think to try to protect the character of the Hill Country. A lot of challenges, right. There’s a lot of development out there but at least there’s—there’s something in place. And the Hill Country Alliance has gone on to form the Hill Country Conservation Network with the variety of groups that are working throughout the Hill Country to try and have a common agenda.

DT: Uh, when we were talking about your work at, um, uh, with Stuart Henry and—and his whole phalanx of—of—of partners, um, that you had this relationship with various state agencies. And I—I wanted to just ask if you could talk a little bit about the Texas Center for Policy Studies’ work on Sunset Review for some of these state agencies, whether it was TNRCC or the General Land Office, uh, Railroad Commission [overlapping conversation]?

MK: I would say the biggest one was, uh, TNRCC, the Texas Natural Resources Conservation Commission. They were go—Sunset Review means the legislature has to reauthorize the agency for it to continue to exist. So it’s quite a bit of leverage. And what we did on that Sunset Review I think is something that, um, we probably need to get back to in the environmental field in Texas. We got all the groups on the same page. We actually ended up forming something like the Alliance for Clean Texas and we had a common agenda among the statewide groups in concert with regional and local groups about what we wanted to see out of Sunset Review.
Those regional and local groups were a really important component because they lived in the districts of the legislators who were making the decisions. So it was—they were real constituents, not just some Austin lobbyists, right, and that made all the difference to our effectiveness. But what also made a difference is we were always on the same page. We weren’t, um, arguing against each other. We were coordinated. We had clear messages and good materials and, uh, a strategy.
So I think we kind of need to get back to that in some ways in Texas particularly on the water front. Uh, but that was a—we got a lot out of that Sunset Review. The agency obviously was reauthorized but we got its name changed back to the Texas Commission on Environmental Quality so at least has some relationship to its mission and a lot of stronger provisions for permitting, for enforcement, and for other decision making that went on at that agency.

DT: And with—with all these projects that you worked on at the Texas Center, um, each one of these would require getting money to pay for all these expert staff that you had. And I was hoping that you could talk a little bit about how as the executive director, one of your biggest jobs is fundraising. And how—how did you couch what was being done at the center, uh, and present it to, uh, national funders who might say Texas is a long way away and it’s a conservative state or approaching Texas funders who may be quite conservative and not as comfortable maybe with the progressive kind of stance that the—the Center had?

MK: So great question. I think on the first point, for national foundations, the border work was of interest to them anyway because they were interested in NAFTA and, for a long time, national foundations were interested in the border. Um, so that wasn’t too hard of a pitch on border but on other issues, it was like if you can do it in Texas, you can do it anywhere. Right, if you can make environmental progress in a conservative, property rights oriented state like Texas, you can do it in other western states and it provides a model.
So that was the—the framework in which we often approached national funders. In terms of Texas funders, uh, for the Center, in particular, our tagline was “Research for community action.” So we weren’t necessarily promoting an aggressive environmental advocacy agenda. We were trying to help groups that were doing that and we did that with good science, good policy, good legal analysis.
So I think we were able to convince people like Meadows Foundation or Houston Endowment that we were solid and serious and that to make progress in the state, groups needed good information and good strategies.

DT: So in 2002, uh, you segued from the Texas Center for Policy Studies to the Environmental Defense Fund and, uh, took on, uh, a number of projects but I think a lot of it was focused on freshwater policy work. And I was hoping that you could, uh, elaborate on that and—and help us understand what you were doing there?

MK: Well it’s kind of a unique transition because it wasn’t just me. I took four people with me to Environmental Defense Fund. So Melinda Taylor and I actually went to Fred Krupp and said, you know, we have been working closely at the Texas Center for Policy Studies and EDF on water issues in particular, uh, EDF essentially absorbed ninety percent of the Texas Center for Policy Studies, though we left the Texas Center for Policy Studies because Cyrus Reed stayed there. Um, that entity still exists today and is doing work.
Uh, but we all moved over together and we were—we brought funding with us. So that was a good deal for EDF. We brought a year’s worth of funding for us but it was great because I think we—we were able to elevate the—the profile of our work on water through EDF’s national reputation and the good work that they were doing and we weren’t duplicating, uh, efforts between the two organizations. So that was right around the time we had formed the Texas Living Waters Project, uh, with Texas Center for Policy Studies, EDF, National Wildlife Federation, and Sierra Club.
And we, uh, strengthened that project when, uh, the four of us moved to EDF. So it—I was definitely focused on fresh water. I started working, um, on the Colorado—the other Colorado—the Colorado River Delta, which is really important by national resource and then, uh, continuing the Texas work and building up programs in other parts of the country for EDF. And a few years into that, I took the job as Vice President for Rivers and Deltas for EDF, where I managed its efforts on fresh water nationally.

DT: And—and so the other Colorado that you’re speaking of is the one that flows through Arizona and California and the Gulf of [overlapping conversation].

MK: Right, seven—seven basin states and into Mexico.

DT: Uh, and I think you also mentioned that you worked on the Texas Living Waters Project. And—and maybe we could start there and talk about what that came from and—and what its constituents were and—and its goals.

MK: Yeah. So, again, this—I think and I keep coming back to this theme and it’s a lot of what I do—is getting—let’s just go with the three groups—National Wildlife Federation, Sierra Club, and EDF, all on the same page about what their agenda was for fresh water. And so it essentially had, uh, three components—protect environmental flows, uh, improve groundwater management in Texas, and take great leaps forward on water conservation. Those were its three main planks. We had a coordinated strategy.
We—each group brought its own strengths to the agenda, EDF with economics and science, and NWF with science and community organizing, and Sierra Club with the infamous Ken Kramer [laughing] and its membership across the state. And we went to foundations, um, including Houston Endowment, Brown Foundation, Wray Trust, Meadows Foundation, and several others, and said here’s our coordinated agenda, will you invest together in this and you coordinate on the foundation side as well?
And that’s, you know, to me, that’s what’s powerful when the foundations are pulling in the same direction and the NGOs are pulling in the same direction. And you have to be focused, right. You can’t do everything. So we had to pick those three issues—big enough issues—and we made a ton of progress. I mean, Texas water use has come down in most cities across the state by quite a bit. Uh, we have the Environmental Flows Law that was passed in 2007, probably the strongest in the country on paper, maybe not in implementation [laughing] but certainly on paper it’s the strongest.
And, you know, groundwater’s a—a bigger challenge because of the legal regime but I think there has been some progress on that front as well.

DT: You said that—that, um, water consumption has come down a fair amount. What are some of the tools that were used to try to reduce use?

MK: So, um, I think both carrots and sticks first was a little bit of shame like get the water use reports from cities around the state and see what they were and show how high they were and highlight that in the regional water planning process that, uh, you—you need to come down from the consumption levels you’re at or you’re going to have a big gap in the future. And the other of the incentives is more the economics, right, to show that conservation can save cities money and then to show that, uh, through the passage of the Swift Bonds, that there would be money for conservation projects.
So twenty percent of those bonds that were passed in—whenever it was—2011 maybe, 2009, go to conservation.

DT: These are state bonds?

MK: State, the state fund, right.

DT: Uh, I think you also said that—that one of the focuses of—of the, uh, Texas Living Waters Project was to, um, give some protection for estuary and inflows and maybe you can back up a little bit and explain what the concern was about, um, instream flows and guaranteeing flows to the estuaries in Texas.

MK: Right. So really until 1985, Texas had no provisions for when issuing a water permit to consider the environment. Most surface water permits—eighty percent of what’s been permitted were issued before 1985 so you got a lot of water perm—permitted for use on paper with no environmental conditions. In ’85, there were some modest provision that the environment should at least be considered when people were applying for a new reservoir or new water use right. But we, uh, realized that was insufficient because it was a permit by permit basis.
What we wanted to do for both instream flow and for the bays and estuaries is to come up with a more comprehensive way of assessing environmental flow needs with strong science and then a process to meet those needs, both in permitting and voluntarily as things moved forward. So we, um, this is a long story. I’m trying to make it short. So—and we didn’t want it to be—we didn’t want Texas rivers to be managed by the Endangered Species Act. You see those train wrecks all over the rest. That’s not the way to manage a river. We wanted a more comprehensive look.
So ii—San Marcos River Foundation, SMRF—Dianne Wassenich—who I’m sure you’ve also interviewed—they with Stuart Henry, filed an application for one million acre feet of the remaining water in the Guadalupe for environmental flows and the proverbial stuff hit the fan and the legislature went crazy. And so it was our opportunity then as the Texas Living Waters Project to come in with some suggestions about how to deal with that legislatively.
So we were in protracted negotiations with river authorities and water agencies and state legislators like Ken Armbrister, uh, Andy Sansom was involved at the time, and we negotiated a compromise piece of legislation that—there’s lots of dimensions to this—but was introduced in the 2005 session, failed to pass on the very last day of the session despite the support. We held it together through the interim and came back in 2007 and it passed on the last day of the regular session in 2007. Was, um, pretty traumatic. But it’s a good piece of legislation.
Real strong science. We know what all our rivers and bays need now. New permits have to meet standards for environmental flow protection, and then we have, uh, some processes where, um, groups within a particular river basin can agree on voluntary strategies to protect flows. So it, you know, long way to go. We’re not there. But at least we have a good, strong framework in the law now.

DT: I guess the—the third leg of your stool is the, um, uh, effort to try to improve groundwater management in a state which is—I guess has been a challenge. I—I think you—you’ve touched on the fact that Stuart Henry had been involved with the Babbitt case and trying to use endangered species to get some controls on the Edwards. Can you talk about what the Living Waters Project was trying to do to sort of move that forward on a more statewide basis?

MK: So I think it had a couple of aspects. The first was awareness. People don’t, you know, what’s groundwater? Wow, isn’t it just, you know, infinite reserves of it? So first was awareness. Starting to talk about the importance of groundwater and the threats to groundwater and importantly its connection to streams and rivers, right. Most of our streams and rivers in Texas, uh, have significant contributions from groundwater to the flows. So that was an important first piece.
Um, secondly, we tried to build alliances in the rural communities about protecting their resources, so trying to build support for groundwater conservation districts in rural communities, and we worked closely with the Texas Association Groundwater Districts in that. Um, third was policy. So there is in place something called Desired Future Conditions now where different groundwater districts get together and decide what they want their aquifer to look like in the future and then you only issue permits up to that level.
That desired future condition at legislation actually came out of a report that we did at EDF calling for, uh, essentially caps on aquifer production and then being able to trade the rights under that cap to keep yourself at a sustainable level. So that—that legislation actually grew out of an EDF report, though only a few people will admit that. [laughing] But I can tell you who will admit it. So that—that was, you know, we worked on policy issues as well as, uh, outreach and building political support for groundwater management.

DT: Uh, this probably goes back way before you were born or I was born but can you give us a—just a little history lesson in why groundwater law and the rule of capture exists in Texas?

MK: It’s basically English Common Law, right. You can pump as much groundwater as you want even if you injure your neighbor, unless you do it with malice and that’s pretty much the law in Texas. It has actually gone further than that. In 2012, the Day case out of the Supreme Court held that land owners own the groundwater in place under their land. Uh, up till then, there had been a sense that you didn’t really own it until you pumped it out but now it’s ownership in place.
So, makes it tough for those groundwater districts out there to manage groundwater sustainably but not impossible. The court did also hold that there’s, uh, room for reasonable regulation of groundwater pumping.

DT: What do you have to prove to say that you can regulate groundwater?

MK: Well y—so we have—also in law, we have established groundwater conservation districts and they are legal and they—they’re constitutional. They just can’t deny you totally the right to pump some groundwater. That would be a taking of your property. But there’s a lot of room between reasonable regulation and that.

DT: Well so, uh, you had this—this really strong foundation in—in the work on Texas, uh, water policy and—and then you’ve built this into, uh, uh, efforts really nationwide for EDF. And I was curious if you could talk about what you’ve learned as you’ve sort of branched out from the Texas experience to work in other states on other river systems and—and groundwater aquifers?

MK: So at EDF when I managed the water program nationally for EDF, we had work in North Carolina, which was a lot about protecting estuaries and getting some instream flow provisions in North Carolina law. We had work in Louisiana which was different. That was too much water, right, um, but, uh, not in the right places. So post-hurricane Katrina, EDF, National Wildlife Federation, Audubon, and, uh, Nature Conservancy, basically formed a big alliance, again, a big alliance—common agenda—to help restore coastal Louisiana.
And that’s still going on with strong support from the Walton Family Foundation, McKnight, and others, but the idea is to sort of free the river in places and put the sediment back into the delta to protect New Orleans and coastal Louisiana. So that was an—another place where putting the groups together in a common agenda attracted millions of dollars of funding to work on coastal Louisiana restoration. And Susan Kaderka and I kind of started that project. And then it…

DT: And Susan works for the National Wildlife Federation?

MK: Still, right. Their Gulf Coast regional director. Um, and then in—here in Texas and then wh—out west, it was mostly the Colorado River Delta. A, um, binational agreement between the U. S. and Mexico to begin restoring the degraded Colorado River Delta, which was just kind of amazing work that they agreed to do that and there’s all sorts of restoration going on in the Colorado River Delta growing out of that work. And then in California, it was more about the Bay Delta, which is still a mess.
So we did pass some legislation in 2009, uh, but, uh, still lot of problems on the California Bay Delta.

DT: Is that the San Francisco Bay and Sacramento River?

MK: Yeah, exactly.

DT: Uh, while we’re talking about all these different river systems, uh, I think that one of your, uh, interests was to try to focus some attention on the Forgotten River se—segment of the Rio Grande. And could you talk a little bit about that and the connection between Texas and New Mexico since it is a—a binational, bi-state, uh, river?

MK: Yeah, that makes me sad. Um, so the Forgotten River is really between Hudspeth and Big Bend National Park and it was, uh, because of the cutoff of flows essentially, um, right downstream from El Paso where a—essentially all the river is used for irrigation by the time it gets—and municipally used by the time it gets below El Paso. The river wa—uh, was infested with saltcedar. It’s just giant swaths of saltcedar, uh, which is not great habitat for anything and makes the water really salty. Uh, so it replaces the native cottonwood and willow habitat.
And the cottonwood and willow just can’t compete when you don’t have the normal flow regimes in a river. So Karen Chapman and I had really big ideas about m—being able to take out all that saltcedar out of the Forgotten River and bring that back to life. And the reason we thought it was possible is to get flows through that segment, um, would really help the lower Rio Grande Valley, right. You’d get more water down to the lower Rio Grande Valley if you could take out that saltcedar and all the water that it absorbed.
So there was support from the lower Rio Grande Valley and from Mexico to clear that out but it’s just—it’s two hundred miles of dense saltcedar and it costs a lot of money to clear it out. But the beetle is now there so I don’t actually know what the status of the—the saltcedar is at this point. I think a lot of it has been chewed up but it’s just so extensive. So I wouldn’t say that that was a successful project in any way, shape or form. But it’s still the, you know, it’s still out there potentially to be done.
There’s not going to be a wall through there, let’s just say that. Saltcedar is a wall.

DT: What—what was the beetle that you mentioned?

MK: The tamarisk beetle. It’s a beetle—so tamarisk comes from Asia and they brought it in forties and fifties for riverbank stabilization. It’s an invasive species and the only thing that eats it is the tamarisk beetle. So they brought the beetle. So it’s eaten saltcedar—that’s—it’s a problem throughout the West where we’ve altered flow regimes and lost, you know, eighty percent of the native riparian habitat has been replaced by saltcedar. So the beetle eats saltcedar but the problem is it just kills it and then you got a bunch of dead wood.
If you don’t take it out and revegetate, you don’t really have the healthy riparian community.

DT: Something else that I thought was interesting about the Rio Grande is that I—I believe that there are—there was some water rights trading that was happening up and down the river. And I—I think that’s kind of a—a—a mark of the Environmental Defense of trying to find these market based solutions. And could you talk about that for the Rio Grande or for other rivers [overlapping conversation]?

MK: Yeah, it was definitely a—a—a mark of EDF to find the right kind of trades, right, not just an open market where you move, for example, groundwater from one part of the state to the other. It’s not really that. It’s trying to use trading mechanisms within systems. So the Rio Grande—the lower Rio Grande has a, um, correlative rights system. It’s not priority based. So that makes it—most of our surface water is senior gets all its water before the junior gets any, so that makes it a little hard to trade because only senior water rights are valuable.
In the lower Rio Grande Valley, they all essentially have the same priority date due to years of litigation and it being more, um, based on, uh, Spanish law than on English Common Law. Uh, we did start in the Rio Grande in the upper Rio Grande something called the Trans Pecos Land and Water Trust, where we were, uh, we actually leased rights and added instream flow to them under the provisions of Senate Bill 3, the law we passed in 2007. So those wa—water rights were authorized to stay instream for flows. And we just wanted to demonstrate that that could be done.
But I’ll, you know, I’ll admit it’s just really—it’s really hard to work at the border right now. M—the economic conditions are brutal for most people. Um, not a lot of cross-border cooperation and why should there be on Mexico’s part at the moment? So it’s a little bit—stuff is tough on the Rio Grande. That—that’s my—that’s still my—on my to-do list is to fix the upper Rio Grande.

DT: Uh, well we’ve talked about a number of these projects at Environmental Defense and before we go on to a—another part of your life, is there anything you…

MK: I change jobs a lot. [laughing]

DT: …but there’s a common thread and so I—I—I think it’s wonderful that—that you’ve explored this from so many different angles. Is there—is there anything else you want to talk about your work at EDF?

MK: Oh, it was just, you know, it’s an amazing organization. It was always focused on results and science and high quality people. And during my time there, there were a lot of stars like Robert Bonnie and Jim – who went on to be Assistant Secretary of Agriculture. Michael Bean who went on to be Assistant Secretary at Interior. Jim Tripp, who is one of the most accomplished environmental lawyers in the country. Tim Searchinger, Tom Graff was the dean of California water law. Um, just wo—an opportunity to work with amazing people at EDF.
And Fred Krupp has built and sustained an—a—quite the organization. And Jim Marston, of course, who you just talked to yesterday.

DT: Well then—then why don’t we go on to—I—I think in—in 2010, uh, you formed a consulting firm called Parula.

MK: I did.

DT: And—and, uh, I think continued with, uh, many of the sort of strains of work and partners that you’ve had before. Can you talk about the—the nature of that?

MK: I was just kind of ready after years of management and fundraising and building programs to just kind of do something on my own. And so I left EDF in 2010 and formed my own firm. Uh, EDF was my first client so that was great. [laughing] I did a lot of work for them on Colorado River and other issues. And then I started working some for, uh, various philanthropies including the Walton Family Foundation and a group of funders that, um, came together in something called the Water Funder Initiative.
So I did a lot more joint work for philanthropies while I was at Parula. So I kind of got to see it from the grant making side and I’d always been on the grant seeking side. So that—that was a good experience. And then they did a lot of work for, um, Trout Unlimited, probably my favorite client ever. They’re just guys and mostly guys who get projects done and, uh, really help improve stream management throughout the West.

DT: Um, can you give us a—a view of the—the work you’re doing fra—for—for instance, maybe the, um, the Walton Family Foundation and it—it seems like there are—there are some foundations that act sort of like a community trust or, uh, uh, that respond to proposals and then they act like a bank, in other words, sort of underwrite things that—that come in from outside but it seems like there are other foundations that have a more coherent idea of what they want to accomplish and they promote things from within. And I—I was wondering if that’s—which Walton Foundation…

MK: Right, so there’s a big—there’s a big trend called, um, for lack of a better word, strategic philanthropy, which is what they call it, and Walton, uh, Family Foundation is a big proponent of strategic philanthropy and it means they basically set their strategy for what they want to happen in a particular—in Walton’s case—a particular river basin—either the Mississippi or the Colorado—and they have their own internal goals. And so they look for grantees that are doing work that will help them fulfill those goals.
And so it’s very, uh, outcome oriented, performance measure oriented. Uh, good and bad about strategic philanthropy but it does allow them to, uh, you know, be more directed in who they give their, um, philanthropic dollars to. So Walton’s a—obviously it’s a very big foundation, uh, but very focused on those two river basins and their fresh water work.

DT: So and—in a say a typical year, you would seek out a group that was an expert in a particular field that worked on, uh, programs that were sort of interest to the foundation and then, uh, offer money to—to achieve those goals.

MK: Right. So their goal on the Colorado River is essentially to bring it back into balance. We’re using more water in the 7-state Colorado River Basin than we have so their goal is to bring it back into balance to sustainable use and preserve rural communities. So they seek out groups that work well with the rural communities to help make their water use more efficient, to use market mechanisms, at least, uh, temporary market mechanisms—leases—uh, and who can bring the science and the policy orientation to get to that sustainable management goal.

DT: And it sounds like one of the ways they sort of structure these grants is by having benchmarks of some sort of functional test of how far your—you’ve moved towards that.

MK: Big logic models.

DT: Yeah. Can you give us a view of how that works?

MK: It’s a nightmare. But it’s go—it’s a good nightmare. So basically you have your goal, you have your strategy. You have your outcomes and then you also have specific deliverables, like you have, you know, you produce this report or you have this many op eds in a paper and e—e—I think they’re learning that they’ve gotten too fine grained with those outputs, that it’s not a static situation. You can’t predict how many op eds you’re going to get in a year, but they still want things that hold grantees accountable. And I think that’s important.
The other thing that they’ve been doing, and just to continue this theme, is we have an informal collaboration of six national groups that work together on the Colorado River and we’ve had that for a very long time. It’s an unbranded coalition. And when I was at EDF, I helped start this with Nature Conservancy. So it’s Nature Conservancy, Trout Unlimited, EDF, American Rivers, Western Resource Advocates, [National Audubon] and the Theodore Roosevelt Conservation Program. It is unheard of in the country to have that many national groups on the same page always working towards the same goals in a very coordinated fashion.
And Walton is now coordinating with other funders to support that collaborative work. That’s what wins. [laughing] That’s what wins. We lose when we’re scattered. We win when we’re together.

DT: Could you offer some insights because it sounds like, um, you’ve worked with at least three different partners. I’m thinking of the Alliance Between Texas, the Living Waters Project, and then this unnamed…

MK: Colorado, right, and then the resource—uh, the Louisiana one too.

DT: Yeah. Well how do you keep the peace?

MK: That’s my job. That’s what I do.

DT: How do you move forward when there are lots of stragglers and people are going off on detours and, you know?

MK: That’s pretty much wh—that has become a little bit of my line of specialty is to build and—and manage and help direct coalitions. You do it because you show that you win, right. So you get those groups together. You pick one winnable thing, you win that, and then you build on that. You can’t start with unwinnable things, right. You get them together. You win something and you build off that. And people see the benefits of collaboration. We also use the funders. We get the funders to demand collaboration. [laughing]
That’s what works really [laughing] at the end of the day. That keeps people on the same page.

DT: Can you give an example of—of a place where one of these—these collaborations has found a winnable, achievable goal and has, you know, pursued it?

MK: So I would say that, um, the work we’ve been doing in the Colorado River Basin has several, uh, wins. We beat a big pipeline. That was a nice bite sized win. The—Aaron Million proposed to export water from, uh, Utah to Colorado. He’s back but the door’s pretty much closed—but we beat that. Uh, we got the binational agreements between the U. S. and Mexico. Those were campaigns of that collaborative.
We, uh, have now—just should be signed hopefully in the next couple of months—a Upper Basin Water Bank in Lake Powell to help protect levels in Lake Powell and allow conservation upstream of that, uh, working with agricultural community. So we’ve had—we’ve had a bunch of wins. We picked, uh, you know, Senate Bill 3 here in Texas was a win for the Texas Living Waters Project. It was a clear—clear thing that we did. We focused on it and we kept focusing on it until it happened.

DT: Uh, yeah, I think you also said that while you were at Parula and—and in years since, you’ve worked with Trout Unlimited and I—I think it’s interesting these groups, um, whether it’s Trout Unlimited or Ducks Unlimited, you know, where you have users of a resource who become really strong advocates for the—the resource and it’s a—it’s a kind of a love/hate. I mean, they are interested in—in using typically but they’re also interested in protecting it. And I was curious what your experience has been working with them?

MK: Well, you know, Trout Unlimited’s always—it—are we a conservation group or are we a fishing club? They’re definitely a conservation group but they are also a fishing club. Um, they, you know, they—they are credible because they use the resource but they want that resource to be there for the future so that’s why they work to protect cold water fisheries. They want those trout to be there for their kids and their kids’ kids and that’s why they work on it. Every fish a team member catches is released right back into the stream, right.
They catch and eat very few. It’s mostly catch and release. Um, and they have done amazing work by embedding local guys in their community to work with irrigators to improve their practices, to, um, do water leases. They have kids that grew up in those communities and became scientists and wanted to work to prov—protect fisheries. They’re working now in those communities to do that. So it’s a really unique business model and you can tell that I’m like an evangelist for it but they do good work.

DT: So I guess part of it is that—that you have a—a local stakeholder who has standing. Is that fair to say?

MK: That’s right. Yeah. And they do real work. I mean, that’s where I think the environmental community has maybe lost its way a little bit in doing things that matter to people on the ground. Show results that matter to people that make their lives better, that they can see, that are tangible. You can’t just all be policy doom and gloom.

DT: Um, maybe we should, uh, take a moment and—and move towards, uh, talking about Culp & Kelly. Would this be a good time for that?

MK: Sure.

DT: Okay. So in 2016, um, you joined a partnership, uh…

MK: Formed it.

DT: …formed it, um, with a…

MK: I’m the Kelly in Culp & Kelly.

DT: …that’s—the very same—um, with, uh, a lawyer based in Phoenix, is that correct?

MK: Yeah, yeah.

DT: And then you also have an office in Boulder and you do natural resource work?

MK: We do water and natural resources law. There are, uh, so Peter Culp was someone that I worked with for fifteen years on the Colorado River. He—most of that time he was at a firm called Squire Patton Boggs, a big—as he calls it—a death star firm. Uh, he’s brilliant. He’s just a genius and I adore him. And he was ready to leave Squire Patton Boggs so we decided that we would, um, form Culp & Kelly.
We decided over a pizza in Las Vegas at some Colorado River meeting and it took us a few months to get things in place but we want to build a different kind of law firm. And so it’s a strange point in my career to take on something difficult and new but I’m so totally inspired by it. So our theory is to build a firm that doesn’t treat younger lawyers as chattel. [laughing] It actually gives them meaningful work, a meaningful investment in the firm. So we went straight to partners. We don’t have any associates.
So it’s Peter and I and two young women, uh, both under the age of thirty, uh, in Phoenix as partners. And then we have a woman in, uh, Boulder who is of counsel right now and, uh, a legal researcher. But we also have structured a law practice that is about innovation, that’s about how you meet these future challenges in water and natural resource management. How do you think about it differently? So we don’t just litigate and do, you know, water rights litigation. We’re actually somewhat policy driven and we—we represent foundations, we represent impact investors.
who are trying to put private money to work for environmental and social benefits as well as financial return. We push the NGOs, right. We don’t just represent them. We do represent them but we also push them and we try to give them new, uh, policy ideas that have come out of our experience. So we’re trying to build something that’s both different and a place for younger lawyers to come so they don’t just have to choose between a state agency and an NGO if they don’t want to be in a big law firm. So we’ll see.
We’ve, um, you know, been around for a little more than two years now but it’s pretty exciting and we’re doing really well and, um, it’s a great partnership.

DT: Well it sounds like it’s a—a—a good partnership but—but I imagine that—that, uh, you have a area carved out and—and perhaps Mr. Culp has his own or…?

MK: Uh, we both bring different skills to it. He’s represented—he’s done more of the work on the impact investment side but I’m now doing that too, which was great to learn a totally new field at my age. It was fun. Uh, I do more of the foundation work than he does. More of the foundation clients are mine than his but he also dabbles into that and is starting to get to understand how foundations do or don’t make decisions.

DT: Well it sounds like you—you’re making inroads into this im—impact investment, uh, area. Can you explain what that means?

Kelly: So there—it’s [laughing] a little bit of a strange term. It’s not free money, right. These are investors who want to make a return and usually a healthy return but they also want environmental and social benefits out of those investments. So, you know, is there a way to invest in water, either municipal or agricultural use, that, for example, can improve, uh, efficiencies and still provide, um, a return to the investors? Uh, it’s a long, complicated story. We can get into that if you want but that’s the base—that’s the basic idea. And it’s—it’s tough.
There’s not a lot of—it’s a new field. And to make eight or nine percent and still get strong environmental and social benefits, there’s only a certain number of deals out there that—that fit that. But the idea is to try to develop those deals and expand this field. It’s—it’s new. It’s new.

DT: Yeah. Maybe you can tell me—give an example—because I think of—of a lot of your work as being involved with the, uh, the common trust of—of, you know, assets that are held by a community or—and—and so how do you privatize part of it so that some folks can get a return?

MK: Well let’s say—let’s say there’s an area of, um, water scarcity, uh, let’s say—let’s take central Arizona and farmers are really facing a very uncertain future because pretty much they’re putting four or five-acre feet of water on alfalfa in the desert. It is—it’s a, you know, they get a little bit of return out of that but maybe not a—a sustainable return. And so could impact investors coming in buy some of that farmland or joint venture with the farmers, convert to a much lower water use crop and a more profitable crop, higher value, lower water use.
They put up the capital up front to make those conversions. You have saved water that can then be monetized to, uh, other users that need it. So your returns are based on the more profitable crop and some water monetization. You get the environmental benefit of reduced water; you should get the social benefit of keeping those farms on the ground and keeping them from just turning into suburban tract homes. That—that would be a specific example of the kinds of things we’re looking at.

DT: So they’re—they’re like, uh, at least three, um, targets. I mean, you—you’re trying to keep these, uh, family farms and ranches intact, you’re trying to provide more water in the local river system, um, and then you’re trying to, uh, make a return for the investor. Um, that…

MK: True bottom line.

DT: That is a high mark to hit.

MK: Yeah, and there’s all the complications of water law and people who’ve done what their daddy did for generations and are suspicious of investors and so there’s all sorts of challenges.

DT: You know, it—it—it’s intriguing to me and I—I don’t mean to like turn this into a big speculation but—but I—when I think about the law, I think it’s a basically a kind of conservative enterprise that you’re trying to protect the status quo. But what you’re trying to do and you have been doing this successfully for a long time, is using it to—to move forward. And I was wondering how you use those tools to, you know, moving forward?

MK: That totally captures it because let’s say you get this potential impact investment deal and there’s one, you know, facet of the law that prevents it from going forward because it’s too complicated. Well then you’ve got some different allies to change that facet of the law, right. It’s not just a green group coming in and saying this doesn’t work, you’ve got investors and farmers who say we want to do this deal but this one thing over here is preventing us from doing that and we need to change it.
So you innovate through building that su—that support from non-traditional allies. But it is all about innovation for our firm.

DT: Okay. Let’s stop there for just a moment.

MK: Okay.

DT: So, Mary, uh, we have been talking about, um, your work in the environmental field which is, um, not necessarily a—a place of instant gratification. A lot of these things that you work on require like years and years of work and then it takes, you know, decades, generations to really see some of the ultimate impacts. And I was wondering if you have any, uh, insights that you could offer about, um, about the future and also about future conservationists?

MK: You know, I—I’m of the Obama mode, that the moral arch of the universe is long but it bends towards justice. And I still hold that hope in the environmental field. We have amazing challenges. We take all kinds of steps backwards but we—we have improved some things. We have improved air quality from where it was. We’ve improved water quality from where it was. We manage our water resources better and eventually we will get it on energy and we will get—we will get, get it on climate. Um, it’s too late on some fronts in climate.
We’re going to have to take adaptation actions and I think if I was coming into this field now, that’s where I would want to focus is what is the right kind of adaptation actions that are necessary to deal with climate change, whether that’s in the water space or the flooding space or how do we make sure that, you know, more concentrated clean energy facilities don’t do more damage than they benefit. So I think that I would be focused on the adaptation piece of it just because I think that’s a place where you show how it matters to people’s lives.
And that’s what I care about in the environmental field. Um, it’s—it is tough. I mean, you have to pick some little victories that you can have, right, whether you—I helped get a little seventy-acre wetland created in Presidio, where there are no wetlands using Presidio’s wastewater effluent. It was a minor project. It took way too much time but it was kind of cool to do, right. And now it’s full of birds and the guy on whose land it is loves it. So you have to pick some smaller things to do and I think that’s mostly in the restoration field.
So if you don’t want to, you know, take on the policy and you don’t want to take on the longer term adaptation challenges, there’s still a ton of work to do in restoration out there. So bring systems that have been degraded, bring them back. There’s hardly a more rewarding thing that I’ve done in my career than be involved in the Colorado River Delta, where we’re bringing back environments that were completely degraded and now provide birding and outdoor recreation opportunities for communities in the Mexicali Valley of—of, uh, Baja. So…

DT: Uh, another question that we—we often ask towards the end of an interview is, um, is there a favorite spot that brings you solace and—and comfort and just a reminder of why you do this work? And I might add like a—a second question tied to that. You and your wonderful husband, Rick, uh, have traveled a lot. So maybe there are multiple places. So, um, if you could answer that, that’d be great.

MK: Favorite places are two incredibly different places than I—they’re—they’re both favorites. So, um, one is Castle Creek outside of Aspen. Beautiful creek coming out of the mountains, extraordinary views, clear, full of water, full of fish. My dad used to have a boys’ camp up there. Um, Camp Tam O’Shanter, where he brought inner city kids from Chicago to the wilds of Aspen during the summer. So that’s a really special place to me. And then the other is the Rio Grande Big Bend, which is completely the opposite, right. It’s border. It’s dry. It’s harsh.
It’s way out in the middle of nowhere. It’s poor. But I really—I love that part of the river and that part of Texas. So those are my two favorite places I would say. And I—I have some others but those are high on the list. And then, for travel, it’s what Rick and I have just always wanted to do. It’s, um, it’s kind of built into both of our bones somehow. I think of my—my dad didn’t travel a lot. He traveled a tiny bit, right. He was in World War II and he traveled for that obviously. And then, as kids, all we did was travel to golf courses. We played a lot of golf.
But, um, both Rick and I just—it’s a planet—let’s see all of the planet. Let’s don’t just see this little piece we live on. So that—it connects me to the fact that it’s a planet when we travel. So different when you go to India or Vietnam or Venezuela or, you know, just even over to Hawaii where we went this fall. It’s a planet. It has incredible diverse environments, incredible diverse cultures, and it’s such a privilege to live on it. So why not see it?

DT: Very nice. Hey, thank you so much for your time.

MK: Thank you guys.

DT: Do you have anything you’d like to add?

MK: No, thank you for doing it. Some day when I’m ninety on my rocker [laughing] I’ll be—it’ll be fun to watch it.

DT: Good.

MK: So do I get to see it?

DT: You—you bet.

MK: Okay.

DT: All right.

[End of Interview with Mary Kelly – November 12, 2018]