11/30/24 – On November 26, 2024, the Court of Appeals for the First District of Texas dismissed homeowners’ claims in the long-running SJRA Takings Case. The case arose from Hurricane Harvey flood damage.
Downstream homeowners alleged that San Jacinto River Authority (SJRA) releases from Lake Conroe significantly exacerbated their flooding. The resulting damage, they claimed, amounted to an illegal taking of their property by the government.
The Texas Constitution provides that “no person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation.” (Texas Constitution, Article I, Par. 17(a)).
Sadly, the alleged “facts” cited in the Appellate Court’s ruling apparently went unchallenged. And some of those so-called facts may mislead.
Speed of Floodwaters a Major Deciding Factor
The appellate court judges based much of their ruling on an argument related to the speed of floodwaters.
SJRA had produced an expert report by Mark E. Forest. The appellate judges said on page 24 of their ruling that “…the timing [emphasis added] of the water releases and flooding supported the conclusion that the River Authority’s water releases did not cause the homeowner’s flooding.”
The judges continued, “Forest explained that the water from Lake Conroe would take about 30 hours to travel the 38 miles downstream to reach the Humble and Kingwood areas, where most of the homeowners’ properties were located.”
Then, on the same page, comes this pivotal sentence. The judges say,
“About 30 hours after the River Authority first released water from Lake Conroe, the Humble and Kingwood areas had already experienced ‘major flooding,’ as the river levels had already risen from 41 feet above sea level to 62 feet.”
Then the coup de grâce. “This major flooding occurred ‘without any contribution from Lake Conroe since those contributions had not yet arrived’ Forest explained.”
The appellate judges in the SJRA Takings Case evidently bought that argument. At the bottom of Page 24, they said, “Therefore, the River Authority produced evidence that its water releases from Lake Conroe did not cause or exacerbate the flooding of the homeowners’ properties.”
In their conclusion on page 36, the judges also state, “The homeowners’ evidence does not raise a fact issue to refute the River Authority’s evidence. The homeowners have not met their burden to provide evidence showing there is a material fact issue as to the causation of their inverse condemnation claim.”
Basis for SJRA Speed Estimate Unclear
I have asked SJRA repeatedly how they arrived at 30 hours and never gotten an answer. That made me suspicious. The SJRA claims floodwaters move only1.27 MPH (38 miles in 30 hours). An average person can walk 3-4 miles per hour!
Plus, I’ve measured (with my drone) logs floating downriver in lesser floods at 5-6 MPH.
The speed of floodwaters determine their arrival time downstream. Claiming a 30 hour travel time that easily could have been as brief as five or six hours could cause people to focus on the wrong part of the flooding bell curve. And it appears that may be what happened in this case.
Judges Cite Flooding at Less-Than-50-Year Level
I’m not sure what data Forest cited; the judges don’t specify. But let’s assume it came from the gage at the West Fork and US59.
Importance of Speed in Determining Proximate Cause
If you assume a higher rate of speed and correlate that to when floodwaters reached the 100-year level where most homes begin to flood, it’s easier to see a possible connection between the Lake Conroe release and structural flooding downstream.
Floodwaters traveling 5-6 MPH would reach US59 in five to six hours, not 30 hours.
According to the Harris County Flood Warning System, the West Fork reached a 100-year-flood level at US59 at 8:42 PM on 8/28/2017.
And according to an SJRA affidavit supplied during the original trial:
30 hours earlier, SJRA was releasing 10,946 CFS.
6 hours earlier, SJRA released 78,885 CFS.
So, between the 30 hours claimed by the SJRA and the six hours indicated by drone measurement, the SJRA increased its release rate by almost 8X.
If the drone measurements are accurate and representative…
SJRA releases increased dramatically shortly before structures near US59 flooded.
This suggests a different conclusion. SJRA releases may have been a far more proximate cause of downstream flooding than SJRA-supplied data implied.
Would homes and businesses have flooded eventually anyway? Certainly, that’s true for some. But it might not be true for others.
No one would expect a home to flood in Kingwood when you release 11,000 CFS from Lake Conroe.
But how about an additional 79,000 CFS when homes were already on the verge of flooding? That’s a very different story – especially considering that at the peak, Lake Conroe releases comprised one third of the total water coming down the West Fork. Many homes at the periphery of the flooding might have stayed dry had the timing and volume of releases been different.
Too Late Now
The plaintiffs’ expert consultant in the SJRA Takings Case did not conduct his own hydrological modeling (Page 26). That’s unfortunate.
Even if the plaintiffs in this case succeed in getting the Texas Supreme Court to hear an appeal, additional evidence would likely be inadmissible.
In general, appellate courts do not consider new evidence. Their primary role is to review the record from lower courts to determine whether legal errors were made that significantly affected the outcome of the case. Appellate courts focus on issues of law rather than fact.
Posted by Bob Rehak on 11/29/24
2650 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2024/11/20241129-SJRA-vs-Medina-et-al-2.jpg?fit=1100%2C731&ssl=17311100adminadmin2024-11-30 12:31:292024-12-02 08:47:50Appellate Court Dismisses Homeowners’ Claims in SJRA Takings Case
11/27/24 – Montgomery County is operating off a 1989 Drainage Criteria Manual that received minor updates in 2019. MoCo still has not finalized its new drainage criteria manual, a process it began in August 2022.
In February 2024, Montgomery County published a draft of a comprehensive new update to its drainage criteria manual. The draft brought the County’s standards up to date and made them more in line with surrounding areas’ standards.
In April, I discussed the major changes. They included, but were not limited to:
Use of industry-standard modeling software by engineering companies submitting plans
A requirement that new developments produce “no adverse impact” on downstream areas
Mandates to use certain “roughness coefficient standards” for different situations. These determine how models calculate flood peaks.
Stipulations that all projects shall mitigate and attenuate runoff for 5-, 10-, and 100-year storm events
Stormwater detention for all developments regardless of size
A discussion of flood mitigation measures
Identification of entities responsible for maintenance of stormwater detention facilities, channels, etc.
Adoption of Atlas-14 rainfall rates
A minimum detention rate of .55 acre-feet per acre (almost up to Harris County’s rate)
Prohibition of hydrologic-timing surveys (also known as flood-routing or beat-the-peak studies).
For a more complete discussion, see my April post which contains links to the relevant documents. Also see below. After publication of the draft, MoCo sought public comment.
Public Comment Period Remained Open for 10 Months
Since April, I have checked back periodically to see whether MoCo had finalized the new Drainage Criteria Manual after the public comment period.
Until earlier this week, the invitation to make public comments remained up on the county’s website. Most public-comment periods last a month or two. So this was highly unusual.
The MoCo engineering department has had some serious turnover recently. It was caused in part by retirements and the sudden, unexpected death of a County Engineer.
So, I emailed the County Engineer’s office to ask why the public comment period was remaining open so long.
Thomas E. Woolley Jr., Director of Engineering Services, wrote, “Thanks for pointing this out. With all the reshufflings in the department, this was overlooked. We will remove the Drainage Criteria Manual Draft from our website until we are ready to move forward.”
I next asked when they would move forward. Woolley replied that he hoped to get it passed by May 2025. He says that he’s currently focused on a related project – updating development regulations.
Developers Reportedly Recommending Which Changes to Adopt
Reportedly, MoCo is having or will soon have a committee incorporate public comments into the draft Drainage Criteria Manual. Before it could be adopted, the revised document would likely have to go back out for another round of public comment. However, it could also depend on the extent and nature of public comments made on the first draft, which still have not been published to my knowledge.
Most Important Recommendations Likely At Risk
I am told (not by Woolley) that developers comprise the committee. While they are certainly important constituents and their opinions should count as much as anyone else’s, reportedly they are pushing back on the most important recommendations in the first draft.
Those include:
The stormwater detention requirement for all new developments
Elimination of hydrologic-timing surveys.
New developments without sufficient mitigation typically increase the amount and speed of runoff during storms. One hundred percent of the water hitting concrete runs off quickly, rather than soaking into forest floors and wetlands.
To compensate, stormwater detention basins hold back water during a flood. But they cost money to build and they reduce the number of lots developers can sell. They increase developer’s expenses and reduce their income.
Hydrologic-timing surveys are a way some engineers use to exempt their clients from requirements to build detention basins.
In theory, if they show a developer can get runoff to a stream or river faster than the peak of a flood arrives, then the development won’t add to the flood peak…so no detention is required. Hence their nickname, “beat the peak” surveys.
Don’t consider the cumulative effects of other developments.
Almost always rely on outdated hydrologic models
Assume “ideal” storm conditions.
Such surveys encourage developers to get their floodwater to rivers as quickly as possible. That’s exactly the opposite of what you need to reduce flooding.
MoCo commissioners already rejected the elimination of hydrologic timing surveys and mandatory detention requirements in 2019 when they did a minor update to drainage regs developed in the 1980s.
Will they do so again now that more and more of their own residents are flooding? We won’t know for certain until May at the earliest. But it’s pretty easy to see which way the political currents are flowing.
Posted by Bob Rehak on 11/27/2024
2647 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2020/12/20201212-Screen-Shot-2020-12-12-at-7.38.15-PM.jpg?fit=1200%2C768&ssl=17681200adminadmin2024-11-27 14:32:322024-11-27 15:03:40New MoCo Drainage Criteria Manual Still Not Finalized
11/26/24 – Flooding in Harris County could use more people like Judy Cox. I attended her memorial service this afternoon and my eyes misted up when hundreds of people sang, “Down By The Riverside.”
I dedicate this post to Judy’s memory because of her leadership style. She had no real involvement in flood mitigation. But flood mitigation in the Lake Houston Area could certainly use more people like her. And we can learn from her example.
Judy Cox, an advocate for domestic violence victims. Hundreds of people attended her memorial service today at Good Shepherd Episcopal Church in Kingwood.
A Transformative Leader
I knew Judy Karns Cox for more than 20 years. On one hand, she was quiet, modest, and self-effacing. On the other, she was a fearless, tireless, transformative leader who made a huge difference in the lives of thousands of Lake Houston Area residents, mostly women and children.
Judy was the retired executive director of Family Time. Family Time runs a crisis and counseling center for battered women. She gave 32 years of her life to the group and 110% of her energies to improving the lives of her clients.
She had an enduring commitment to supporting and uplifting those in need. Perhaps her quiet ways made her successful in her chosen mission. She kept the spotlight on those in need, not herself.
Judy was never pushy, but always pushing.
She took on a job that most would not and became a relentless advocate and educator for her cause.
Judy taught me that the scourge of family violence cuts across all segments of society – rich and poor. Rural and urban. Mainstream and minorities. Old and young. Male, female, LGBTQ+. No group is immune though some are definitely at higher risk.
Judy Cox also taught me that the key to addressing domestic violence lies in recognizing the underlying factors, providing education, reducing stigma, and increasing access to supportive resources and services for all affected individuals.
In that spirit, Family Time provides confidential crisis intervention, counseling, and emergency shelter to survivors of domestic violence, sexual assault, and human trafficking.
One Person at a Time
Judy didn’t change the world. But in her quiet way, she changed the lives of thousands of abused people over the years. One person at a time.
As someone who has advocated for flood mitigation since retiring, she was both a hero and a role model to me. I am grateful that I knew her.
The measure of a woman or man is not how much wealth they accumulate in a lifetime. It’s how much better they make other people’s lives and how much they improve their communities. Judy not only understood that, she lived by the principle.
We need more people like her who are willing to throw themselves into the breach and advocate for their respective causes.
Posted by Bob Rehak on 11/26/24
2646 Days since Hurricane Harvey
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2024/11/Judy-Cox.jpg?fit=1440%2C1440&ssl=114401440adminadmin2024-11-26 18:01:192024-11-26 18:05:59Tribute to Judy Cox, A Transformative Community Leader
Appellate Court Dismisses Homeowners’ Claims in SJRA Takings Case
11/30/24 – On November 26, 2024, the Court of Appeals for the First District of Texas dismissed homeowners’ claims in the long-running SJRA Takings Case. The case arose from Hurricane Harvey flood damage.
Downstream homeowners alleged that San Jacinto River Authority (SJRA) releases from Lake Conroe significantly exacerbated their flooding. The resulting damage, they claimed, amounted to an illegal taking of their property by the government.
The Texas Constitution provides that “no person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation.” (Texas Constitution, Article I, Par. 17(a)).
Sadly, the alleged “facts” cited in the Appellate Court’s ruling apparently went unchallenged. And some of those so-called facts may mislead.
Speed of Floodwaters a Major Deciding Factor
The appellate court judges based much of their ruling on an argument related to the speed of floodwaters.
SJRA had produced an expert report by Mark E. Forest. The appellate judges said on page 24 of their ruling that “…the timing [emphasis added] of the water releases and flooding supported the conclusion that the River Authority’s water releases did not cause the homeowner’s flooding.”
The judges continued, “Forest explained that the water from Lake Conroe would take about 30 hours to travel the 38 miles downstream to reach the Humble and Kingwood areas, where most of the homeowners’ properties were located.”
Then, on the same page, comes this pivotal sentence. The judges say,
Then the coup de grâce. “This major flooding occurred ‘without any contribution from Lake Conroe since those contributions had not yet arrived’ Forest explained.”
The appellate judges in the SJRA Takings Case evidently bought that argument. At the bottom of Page 24, they said, “Therefore, the River Authority produced evidence that its water releases from Lake Conroe did not cause or exacerbate the flooding of the homeowners’ properties.”
In their conclusion on page 36, the judges also state, “The homeowners’ evidence does not raise a fact issue to refute the River Authority’s evidence. The homeowners have not met their burden to provide evidence showing there is a material fact issue as to the causation of their inverse condemnation claim.”
Basis for SJRA Speed Estimate Unclear
I have asked SJRA repeatedly how they arrived at 30 hours and never gotten an answer. That made me suspicious. The SJRA claims floodwaters move only1.27 MPH (38 miles in 30 hours). An average person can walk 3-4 miles per hour!
Plus, I’ve measured (with my drone) logs floating downriver in lesser floods at 5-6 MPH.
The speed of floodwaters determine their arrival time downstream. Claiming a 30 hour travel time that easily could have been as brief as five or six hours could cause people to focus on the wrong part of the flooding bell curve. And it appears that may be what happened in this case.
Judges Cite Flooding at Less-Than-50-Year Level
I’m not sure what data Forest cited; the judges don’t specify. But let’s assume it came from the gage at the West Fork and US59.
At that location, 62 feet is less than a 50-year flood. Most structures are built at least two feet above the 100-year floodplain. The 100-year flood level there is 64.8 feet – almost three feet higher.
Importance of Speed in Determining Proximate Cause
If you assume a higher rate of speed and correlate that to when floodwaters reached the 100-year level where most homes begin to flood, it’s easier to see a possible connection between the Lake Conroe release and structural flooding downstream.
Floodwaters traveling 5-6 MPH would reach US59 in five to six hours, not 30 hours.
According to the Harris County Flood Warning System, the West Fork reached a 100-year-flood level at US59 at 8:42 PM on 8/28/2017.
And according to an SJRA affidavit supplied during the original trial:
So, between the 30 hours claimed by the SJRA and the six hours indicated by drone measurement, the SJRA increased its release rate by almost 8X.
If the drone measurements are accurate and representative…
This suggests a different conclusion. SJRA releases may have been a far more proximate cause of downstream flooding than SJRA-supplied data implied.
Would homes and businesses have flooded eventually anyway? Certainly, that’s true for some. But it might not be true for others.
No one would expect a home to flood in Kingwood when you release 11,000 CFS from Lake Conroe.
But how about an additional 79,000 CFS when homes were already on the verge of flooding? That’s a very different story – especially considering that at the peak, Lake Conroe releases comprised one third of the total water coming down the West Fork. Many homes at the periphery of the flooding might have stayed dry had the timing and volume of releases been different.
Too Late Now
The plaintiffs’ expert consultant in the SJRA Takings Case did not conduct his own hydrological modeling (Page 26). That’s unfortunate.
Even if the plaintiffs in this case succeed in getting the Texas Supreme Court to hear an appeal, additional evidence would likely be inadmissible.
In general, appellate courts do not consider new evidence. Their primary role is to review the record from lower courts to determine whether legal errors were made that significantly affected the outcome of the case. Appellate courts focus on issues of law rather than fact.
Posted by Bob Rehak on 11/29/24
2650 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
New MoCo Drainage Criteria Manual Still Not Finalized
11/27/24 – Montgomery County is operating off a 1989 Drainage Criteria Manual that received minor updates in 2019. MoCo still has not finalized its new drainage criteria manual, a process it began in August 2022.
In February 2024, Montgomery County published a draft of a comprehensive new update to its drainage criteria manual. The draft brought the County’s standards up to date and made them more in line with surrounding areas’ standards.
In April, I discussed the major changes. They included, but were not limited to:
For a more complete discussion, see my April post which contains links to the relevant documents. Also see below. After publication of the draft, MoCo sought public comment.
Public Comment Period Remained Open for 10 Months
Since April, I have checked back periodically to see whether MoCo had finalized the new Drainage Criteria Manual after the public comment period.
Until earlier this week, the invitation to make public comments remained up on the county’s website. Most public-comment periods last a month or two. So this was highly unusual.
The MoCo engineering department has had some serious turnover recently. It was caused in part by retirements and the sudden, unexpected death of a County Engineer.
So, I emailed the County Engineer’s office to ask why the public comment period was remaining open so long.
Thomas E. Woolley Jr., Director of Engineering Services, wrote, “Thanks for pointing this out. With all the reshufflings in the department, this was overlooked. We will remove the Drainage Criteria Manual Draft from our website until we are ready to move forward.”
I next asked when they would move forward. Woolley replied that he hoped to get it passed by May 2025. He says that he’s currently focused on a related project – updating development regulations.
Developers Reportedly Recommending Which Changes to Adopt
Reportedly, MoCo is having or will soon have a committee incorporate public comments into the draft Drainage Criteria Manual. Before it could be adopted, the revised document would likely have to go back out for another round of public comment. However, it could also depend on the extent and nature of public comments made on the first draft, which still have not been published to my knowledge.
Most Important Recommendations Likely At Risk
I am told (not by Woolley) that developers comprise the committee. While they are certainly important constituents and their opinions should count as much as anyone else’s, reportedly they are pushing back on the most important recommendations in the first draft.
Those include:
New developments without sufficient mitigation typically increase the amount and speed of runoff during storms. One hundred percent of the water hitting concrete runs off quickly, rather than soaking into forest floors and wetlands.
To compensate, stormwater detention basins hold back water during a flood. But they cost money to build and they reduce the number of lots developers can sell. They increase developer’s expenses and reduce their income.
Hydrologic-timing surveys are a way some engineers use to exempt their clients from requirements to build detention basins.
In theory, if they show a developer can get runoff to a stream or river faster than the peak of a flood arrives, then the development won’t add to the flood peak…so no detention is required. Hence their nickname, “beat the peak” surveys.
However, in reality, such surveys have faults. According to the previous Montgomery County Engineer, they:
Such surveys encourage developers to get their floodwater to rivers as quickly as possible. That’s exactly the opposite of what you need to reduce flooding.
Only good things come from more detention. But when developers don’t build detention, people downstream can pay the price.
Which Way Will Political Currents Flow?
MoCo commissioners already rejected the elimination of hydrologic timing surveys and mandatory detention requirements in 2019 when they did a minor update to drainage regs developed in the 1980s.
Will they do so again now that more and more of their own residents are flooding? We won’t know for certain until May at the earliest. But it’s pretty easy to see which way the political currents are flowing.
Posted by Bob Rehak on 11/27/2024
2647 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
Tribute to Judy Cox, A Transformative Community Leader
11/26/24 – Flooding in Harris County could use more people like Judy Cox. I attended her memorial service this afternoon and my eyes misted up when hundreds of people sang, “Down By The Riverside.”
I dedicate this post to Judy’s memory because of her leadership style. She had no real involvement in flood mitigation. But flood mitigation in the Lake Houston Area could certainly use more people like her. And we can learn from her example.
A Transformative Leader
I knew Judy Karns Cox for more than 20 years. On one hand, she was quiet, modest, and self-effacing. On the other, she was a fearless, tireless, transformative leader who made a huge difference in the lives of thousands of Lake Houston Area residents, mostly women and children.
Judy was the retired executive director of Family Time. Family Time runs a crisis and counseling center for battered women. She gave 32 years of her life to the group and 110% of her energies to improving the lives of her clients.
She had an enduring commitment to supporting and uplifting those in need. Perhaps her quiet ways made her successful in her chosen mission. She kept the spotlight on those in need, not herself.
She took on a job that most would not and became a relentless advocate and educator for her cause.
Judy taught me that the scourge of family violence cuts across all segments of society – rich and poor. Rural and urban. Mainstream and minorities. Old and young. Male, female, LGBTQ+. No group is immune though some are definitely at higher risk.
Judy Cox also taught me that the key to addressing domestic violence lies in recognizing the underlying factors, providing education, reducing stigma, and increasing access to supportive resources and services for all affected individuals.
In that spirit, Family Time provides confidential crisis intervention, counseling, and emergency shelter to survivors of domestic violence, sexual assault, and human trafficking.
One Person at a Time
Judy didn’t change the world. But in her quiet way, she changed the lives of thousands of abused people over the years. One person at a time.
As someone who has advocated for flood mitigation since retiring, she was both a hero and a role model to me. I am grateful that I knew her.
The measure of a woman or man is not how much wealth they accumulate in a lifetime. It’s how much better they make other people’s lives and how much they improve their communities. Judy not only understood that, she lived by the principle.
We need more people like her who are willing to throw themselves into the breach and advocate for their respective causes.
Posted by Bob Rehak on 11/26/24
2646 Days since Hurricane Harvey