Section 404 of the Clean Water Act and Sand Mines
Section 404 of the U.S. Clean Water Act states that, “Any discharge of dredged or fill material … where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.”
Hmmmm. Impaired flow? Does that sound like what happened to the San Jacinto as a result of sand deposited downstream of mines during Harvey?
Penalties for Violation Under 404
The law also states that, “Any person who violates any condition or limitation in a permit … shall he subject to a civil penalty not to exceed $10,000 per day of such violation.”
Findings of U.S. Army Corps of Engineers
The executive summary of the U.S. Army Corps of Engineers Value Engineering Study for its West Fork San Jacinto River Emergency Dredging Project states that, “On 25 August 2017, Hurricane Harvey made landfall along the Texas Coast as a Category 4 storm. Hurricane Harvey created extensive flooding along the West Fork of the San Jacinto River creating a record high flood of 69.22 feet as recorded by the West Fork San Jacinto River gauge on August 29, 2017. This record flooding increased the amount of deposition of sand and silt within the West Fork of the San Jacinto River from areas further upstream.” Below are two examples.
A giant sandbar almost completely blocks the west fork of the San Jacinto River just downstream from River Grove Park.
Yet another giant sand dune has formed at the mouth of the west fork of the San Jacinto. It is not being addressed by the Army Corps dredging project but should be. Thousands of homes upstream from the blockage flooded during Harvey.
Decreasing Amount of Water that Can Pass Through to Lake Houston
The executive summary continues, “This has now reduced the overall depth of the West Fork waterway and decreased the amount of water that can pass through and into Lake Houston. The epic flooding caused by Hurricane Harvey caused 4,139 structures along the West Fork to flood, including 1,621 homes with National Flood Insurance Program (NFIP) claims totaling over $407 million. In addition, during Hurricane Harvey a number of hospitals along the West Fork (e.g. Kingwood Medical Center, Memorial Hermann Northeast Hospital) were cut-off due to the West Fork flooding which prevented residents from obtaining emergency aid.”
The summary concludes, “Recent heavy rainfall along the West Fork has caused, and may again result in, downstream water levels that present a threat to persons and properties in the Kingwood-Humble-Lake Houston areas due to the inability of the West Fork to carry sufficient water volume. … In the event of another heavy rainfall event there is a near certain likelihood that wide-spread flooding will occur impacting even more homes than before due to the river’s inability to pass heavy volumes of water.”
Cost of Cleanup to Taxpayers
The Corps is currently spending almost $70 million on dredging to restore the carrying capacity of the river in a 2.1 mile section of the West Fork (out of an 8 mile stretch between U.S. Highway 59 and Lake Houston). The cost for cleaning up the rest of the river has yet to be determined. The initial project will not even address the biggest blockage on the river – a sand bar at the mouth of the West Fork that forces water to flow approximately 40 feet uphill before it reaches the main body of the lake.
Need for Stricter Regulations on Sand Mining
One of the possibilities that the Corps examined to reduce such costs to taxpayers in the future was imposing stricter regulations on sand mining operations using 404 permitting. Although the Corps found this outside of the scope of their project, they address the possibility in section C-9 of their report on page 31.
The exact text reads:
“This comment refers to sand mining operations upstream of the US 59 highway bridge that are within the floodplain. During flood events where the boundaries of the sand pits are overrun, the river carries sediment from these pits downstream.
This is potentially a 404 issue/violation and it may be possible to get the mine operators to incorporate some abatement features to minimize the amount of sediment from their operations they discharge into the river.” [Emphasis Added]
This comment could apply equally to sand mining operations on the East Fork, but the East Fork was not within the scope of the Corps’ study.
Clearly, not all the sand above came from mines, but satellite imagery shows that much of it did.
It seems to me that sand mining operations located in the floodway which flood repeatedly would be eager to incorporate “abatement features,” such as the best management practices found in other states and countries. This just might show good faith effort to reduce pollution, mitigate liability under the Clean Water Act, and avoid a revocation of operating permits.
As always, these are my opinions on a matter of public policy protected under the first Amendment of the U.S. Constitution and the Anti-SLAPP statute of the great state of Texas.
Posted by Bob Rehak on 8/16/2018
352 Days since Hurricane Harvey
Emily Murphy