The full text of the City of Houston’s controversial Cease and Desist letter to Perry Homes regarding the recent flooding in Elm Grove and North Kingwood Forest, has finally been made public. Raines Rushin, an Elm Grove resident obtained the letter(s) through a TPIA request (Texas Public Information Act).
Summary of Letter
The letter focuses on the discharge of stormwater containing sand, silt, and sediment from the Woodridge Village construction site on September 19, 2019. Further, the letter alleges that this discharge caused severe damage to the City of Houston’s “Municipal Separate Storm Sewer System” (MS4) and to the property of citizens.
It cites a City of Houston Ordinance: Article XII – Storm Water Discharges, Division 6 – Illicit Discharges and Connections, Section 47-741. The ordinance reads as follows. “Discharge to MS4 prohibited (a) A person commits an offense if the person threatens to introduce, introduces or causes to be introduced into the MS4 any discharge that is not composed entirely of storm water.”
The letter ends by saying, “I hereby demand that you immediately cease and desist all future discharges of sand, silt, sediment and debris from your Woodridge Village Development site into the Municipal Separate Storm Sewer System of the City of Houston.”
Lawrence Childress, from the Stormwater Quality department within Public Works, signed it. Childress sent identical copies of the letter to:
- Perry Homes
- Figure Four Partners, Ltd. (A Perry subsidiary)
- Double Oak Construction (A Perry contractor)
What the Letter Does and Doesn’t Do
The letter is a “demand letter” not a court order. A demand letter is a warning shot across the bow of Perry Homes. The letter simply says, “If you do it again, we’re coming after you.”
- The City has filed no law suit for damages with the District Clerk’s office.
- The City did not even send the letter to the registered agents for Perry Homes et. al., just executives for the companies.
- No judge has issued any kind of restraining order.
- This is simply a letter from a city employee to Perry Homes, Double Oak Construction, and Figure Four Partners.
Having said that, the demand letter does put Perry et. al. on notice. It describes the basis for legal action if the developer(s) allow sediment-laden storm water to leave their site again. As such, it has value in that it may motivate Perry, its subsidiary and contractor to fix problems that exist on the site. If they don’t and the problems recur, they will face a law suit.
The letter may also have value in that it eliminates a possible line of defense, i.e., ignorance of the fact that a problem existed. Perry Homes can not now claim that the City never told them of the problems.
Another benefit: Judges typically like parties in civil suits to try to settle their grievances outside of court if they can. This letter constitutes the first step in that process. It starts the “attempted settlement” clock ticking sooner rather than later.
Sides Are Talking, But No Concrete Results So Far
Having said that, the date on the letter says September 26. What has happened since then?
Representatives of the City met with Perry Homes et. al. on or about October 15. As a result of that meeting, the developers agreed to take the steps outlined in a second letter back to the City. Basically, that letter promised to finish all the detention ponds before building homes or more roads. But they did not agree to a firm deadline.
Residents observed minor activity after the City’s demand letter. Workers scraped eroded sediment out of one of their detention ponds. However, since then, residents have observed little to no activity on the site. No new excavation work has started on the three detention ponds on the northern section since Perry’s response letter on Thursday, October 17.
Reason for Lack of Progress May Go Deeper
In November of 2018, Perry said they hoped to be selling homes by the summer of 2019. So much for the idea of possibly needing another 780 days to finish the detention ponds!
The question is “Why the sudden stoppage after finishing the second detention pond (S2) on the souther section?” Usually time is money on a construction site; developers want to finish sooner rather than later. But work has virtually come to a standstill since August.
Since then residents have observed the S2 pond perpetually filled with water. To reach the pond’s target depth, contractors had to pump out water as they worked. Some question whether the water table in the area will allow Perry to achieve its stormwater detention goals. This would not be too surprising for an area of wetlands once criss-crossed by streams. Drainage converged here for thousands of years. See the drainage illustration from the LJA Engineering report below. The purple line represents the boundaries of Woodridge Village. Look closely at Section B.
Troubling Inconsistency in Letter
The City said in the cease and desist letter to Perry Homes et. al. that the sediment had caused severe damage to the City’s storm sewers. However, the City did not specify what damages were. And in public meetings in Elm Grove and at the Kingwood Community Center, Council Member Dave Martin told residents that the storm drains were NOT blocked. He said, “they’re so clean you could eat off them.” I’m not sure whether the drains are blocked or not.
The City has not yet completed its investigation of the sewers. But this is a troubling inconsistency. Frankly, looking at the ankle-deep much on Village Springs Drive next to Woodridge, I find it hard to see how the storm drains could NOT have sediment in them.
If Perry is sincere about fixing this mess, they need to come clean (pun intended). They need to explain why they have stopped work in the face of such clear cut danger. They have substantially completed only 23 percent of the detention on their site and have stopped work. The public deserves to know why.
Posted by Bob Rehak on 10/21/2019 with help from Nancy Vera, Jeff Miller, Bill Fowler, Amy Slaughter, Judith Rehak, Josh Alberson and Raines Rushin
783 Days since Hurricane Harvey and 32 since Imelda
All thoughts in this post represent my opinions on matters of public policy and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.