You have to give credit to Montgomery County. MoCo just took ethical conflict to a whole new level. I’m not alleging that the County or LJA Engineering has done anything illegal. But the optics of this stink worse than the hundreds of flooded homes below the development LJA designed and MoCo permitted. Approximately 200 Elm Grove homeowners have already filed suit against LJA and more are ready to file.
This is like the judge in a case hiring the defendant to render expert opinions for the plaintiffs. This story speaks to an overly cozy relationship between developers, engineers, contractors and regulators that can harm the citizens that government agencies are supposed to protect.
Bill King, a candidate for mayor of Houston, called this story “unbelievable.” “This kind of stuff has to stop,” he said.
Tony Buzbee, another mayoral candidate, also running on a reform platform, felt the same way. Buzbee said he was aware of no law that prohibited such conflicts in Texas. However, he felt this was highly unethical.
TCEQ Letter Provided Red Flag That Led to Discovery
After the flood on May 7th, I submitted a complaint to the TCEQ. It alleged that lack of detention in the Woodbridge development contributed to flooding in Elm Grove; that the site lacked silt fences; and that no berms existed to deflect floodwater from surrounding neighborhoods. I also pointed out that Stormwater Pollution Prevention Permits were NOT posted at the entrances to the job site. However, the TCEQ boiled all of that down to a one word complaint: flooding.
When I opened up their response today, my jaw dropped so far, so fast, it almost required a trip to the dentist. First, it referenced flooding on May 20, two weeks after the actual flooding, and four days AFTER they mailed their letter to me. But let’s assume that’s an innocent typo.
The big concern: TCEQ said my “request for assistance can be more appropriately handled through LJA Engineering FOR Montgomery County.” (Emphasis added.) Regular readers will remember that LJA Engineering developed the plans for Woodridge Village. Now they’re investigating what went wrong with the plans???
To clarify what the TCEQ meant by “FOR Montgomery County,” I called Nicole Morris at the TCEQ. A co-worker, Mr. Weston, called me back a short while later. He said that, “Yes, Montgomery County hired LJA Engineering to investigate these complaints.”
TCEQ Refers Me to Company that Engineered Site
The TCEQ letter also suggested I call LJA and referred me to a Mr. John Concienne. So I called him. The conversation lasted about 15 minutes. Headline: He works for their environmental division, not the one that developed the plans, and felt that excused the conflict.
Mr. Concienne seemed open about some things, but guarded about others. He repeatedly emphasized that he could only comment about what he saw on May 15. He also mischaracterized the nature of my complaint. Here’s how the conversation went.
Rehak: Mr. Concienne, my name is Bob Rehak. I’m calling in regard to the Elm Grove flooding that happened a couple weeks ago. I got a letter from the TCEQ that said you were handling complaints for Montgomery County. Is that true?
Concienne: Yes, sir. That is true.
Rehak: What exactly is LJA’s role for Montgomery County. Help me understand that.
Concienne: So, we are their stormwater consultant. We manage their permits.
Rehak: But weren’t you also the engineers on that Woodridge Village development?
Concienne: Yeah…so…well…I do believe that we did the design on that, but … um … but I’m not in the engineering group so I don’t have a ton of details on that. But yes, I do believe that we did the design work on that.
Rehak: Is that a conflict of interest?
Concienne: No. So we’ve dealt with that before. We have both an engineering side of our firm as well as an environmental side of our firm.
Rehak: OK… (Long pause)
Blaming Bad Execution
Concienne: So the way that’s laid out, we just do the design work, but we’re not the operators. We don’t have operational control of the site. Actually, my understanding is that there are two operators out there right now. I believe one of them is Rebel Contractors.
Concienne: And I believe that the other one is Figure Four Partners.
Concienne: And so whenever we do an inspection on behalf of Montgomery County, we work directly with the operators who have acquired their permit from the county. That’s who we deal with. So…when we did that inspection out there, we actually submitted that to Revel Contractors who was onsite that day.
Initial Investigation Focuses on Silt, Not Flood Issues
Rehak: And what were your findings regarding the flooding? Can you tell me?
Concienne: Our inspector found three long stretches of the property that needed additional perimeter control. Along the southern perimeter from Woodland Hills Drive east to Friarwood Trail. That all needed perimeter controls put up.
Rehak: Do you mean silt fences?
Concienne: Yes, sir. Also along the drainage ditch running north to south along Needham Road to Taylor Gully. And also along the drainage ditch of the west side of the northernmost area adjacent to Webb Street. We found one surface inlet that was on their site that did not have controls around it. And then also there were two entrances and exits around the site that needed to be restabilized with bull rock. There’s one at Fair Grove Drive and one at Webb Street.
Couldn’t Remember Missing Detention
Rehak: What about detention on the property? Did you find anything unusual there?
Concienne: At the time of our inspection, they had a pretty sizable detention pond that they had put up. At the time of our inspection…now I can’t speak to what was present prior to that, but at the time of our inspection, they did have a rock berm inside the detention structure. And so…that was in place. (Note: They also installed that the day before the inspection.) Now the detention structure was not vegetated. It was all bare ground. So obviously…ideally…that would be vegetated, but it looked like it had just been developed. I would say it was a foot and a half to two feet tall inside of a wire material. And so it looks like that was in place. They did have a linear detention structure built on site.
Rehak: What was the date of your inspection?
Concienne: May 15th.
Rehak: Did you see any detention north of Village Springs Drive? That’s the big detention area at the far eastern end of the proposed subdivision.
Concienne: I would have to go back and review my photographs of the inspection. But I don’t recall whether there were any other detention structures other than that one large linear structure that went into some concrete culverts and then discharged downstream. That’s the only one I remember seeing when I went through the photographs.
Rehak: There was supposed to be a huge pond attached to that.
Concienne: (Referring to the missing detention pond that was supposed to hold 43 acre feet of water.) I don’t recall seeing that in the photographs.
Remedial Action Started 36 Hours before First Inspection
Note: On the two days before LJA inspected the site, Rebel Contractors installed the rock berm and silt fencing along the southern border. Later, Concienne tells me that the silt fencing should have been up before any clearing even took place…almost seven months ago. Rebel Contractors still has not installed silt fencing everywhere they should.
Rehak: So you did an inspection on the 15th, and I can promise you that that detention wasn’t there on the 15th, but it is there now. It took them about a day to dig it. I’m wondering why it took them six months to put it in if it only took a day to do.
Concienne: Well, uh, yeah. Well, I’m not sure. I know there was obviously some flooding issues there around that area…
Rehak: That’s an understatement!
Concienne: That’s what kind of triggered all this. But on the stormwater quality end of it, like I said, we’re just looking at whatever’s present when we do our inspection. And so we document what was there the first time. And we document what has changed when we go there on Thursday. We requested some pretty extensive work. I know there are some long stretches of perimeter fencing so…there’s a chance that they may not have done it. I’m not sure.
LJA Explanation Conflicts with TCEQ
Rehak: So the complaint I lodged with the TCEQ had to do with flooding. And they referred me to you for answers on that. Now you’re telling me that you … don’t have anything to do with the flooding part???!!!
Concienne: Well, so, the construction general permit that that complaint was placed under with the TCEQ, is purely a stormwater quality permit. This does not involve quantity of water in any way. I know there’s certainly the possibility that silt left the site and potentially impacted things downstream…and we try to make that determination when we’re in the field…but for the most part that’s a stormwater quality permit and the TCEQ will tell you that they don’t deal with capacity at all. Now if there’s anything beyond that in terms of flooding, what degree there was, why the flooding occurred, that sort of thing, that’s a capacity issue, generally speaking.
Rehak: Who’s investigating that?
Doesn’t Know Who Is Investigating Flooding
Concienne: I’m not sure. I have a copy of the complaint from the TCEQ and like I said, this was a stormwater quality complaint that the TCEQ deals with. So um…any complaint that’s registered with the TCEQ is going to deal with quality, not quantity at all. (See how the TCEQ characterized the complaint as flooding!)
Rehak: So you don’t know if anyone is investigating the quantity part?
Concienne: You mean like why people flooded?
Concienne: Like I said, I wouldn’t make that determination. I’m not a hydrology guy at all.
Contractor Did Things Out of Order
One other thing struck me as odd: the timing of the erection of silt fencing on May 13 and 14.
Rehak: This site has been cleared for over 6 months and it didn’t have those silt detention things in place. Residents were complaining about mud in the streets for months. How long does it normally take after clearing before they should put the silt fences up?
Concienne: It’s supposed to be up before it’s cleared. The permit requires those controls are in place before any grading takes place. So those controls definitely should have been in place. We actually cited them on four different counts when we were out there. Now what the TCEQ will ultimately do with them? There’s a strong possibility they will get some type of enforcement.
Huge Questions Remain for LJA Engineering and Montgomery County
- If LJA was responsible for permit compliance, why did LJA not inspect the site to make sure silt fencing was in place before grading began?
- Why does LJA repeatedly emphasize that they can’t speak to what was on site before their inspection?
- Why did Rebel Contractors suddenly start complying with permit requirements one day before the inspection? Were they tipped off?
- Why did TCEQ refer me to LJA to answer flooding questions, when LJA denied it had any responsibility for flooding questions?
- Why is one arm of LJA investigating a project that another arm designed?
- Can LJA really provide an unbiased investigation of Figure Four Partners, the developer that hired it?
- Knowing the potential for ethical conflict, why did Montgomery County not hire some other company for this particular investigation?
- If LJA has a blanket contract to review all permit applications for Montgomery County, why does it not recuse itself from investigations involving itself and its clients?
- At this hour, silt fences and bull rock still have not been installed everywhere they should be. Why?
Obviously, none of these parties (LJA Engineers, Figure Four Partners, and Rebel Contractors) are afraid of consequences from TCEQ or Montgomery County. The biggest question of all is “Why?” I talked to several Porter residents who complained bitterly to Montgomery County about the practices on this construction site. They said their calls to the County and the Sheriff’s Office fell on deaf ears. “It was like all the communication was going into a black hole,” one told me. That family sold its home and moved back to Harris County four months before the flood.
Gretchen Dunlap-Smith took the pictures below on 5/21/19, six days after the LJA inspection. They show the area near the Webb Street entrance in Porter where Rebel Contractors was ordered to install silt fending. Note the continued failure to meet requirements.
So many questions, so many compliance failures, so few consequences…with only a week before the start of hurricane season!
Posted by Bob Rehak on 5/21/2019 with photos from Gretchen Dunlap-Smith and Jeff Miller
630 Days since Hurricane Harvey
Thoughts expressed in this post represent my opinions on matters of public policy and safety. They are protected by the First Amendment of the U.S. Constitution and the Anti-SLAPP law of the Great State of Texas.