Webster, Spurlock Add Storm Water Solutions to Lawsuit for Elm Grove Plaintiffs

On December 17, 2020, Jason Webster and Kimberley Spurlock, lawyers for the plaintiffs in the 2019 Elm Grove lawsuits, added a ninth defendant in their eighth amended petition. The defendant is Storm Water Solutions, LLC at 16110 Hollister Street in Houston.

Complete List of Defendants

Defendants now include:

  • Developers:
    • Perry Homes, LLC
    • Figure Four Partners, LTD
    • PSWA, Inc.
    • Concourse Development, LLC
  • Contractors:
    • Rebel Contractors, Inc.
    • Double Oak Construction, Inc.
    • Texasite LLC
  • LJA Engineering, Inc.
  • Storm Water Solutions, LLC

Who Was Responsible for What and When

The eighth amended petition provides an overview of who allegedly did what and when, before Elm Grove flooded on May 7th and September 19th last year when water from Woodridge Village invaded Elm Grove and flooded up to 600 homes.

The developer defendants hired LJA, which had prepared the drainage plans for Woodridge Village, to prepare bid documents, plans and specifications, all of which required a stormwater pollution prevention plan (SWPPP) for all potential contractors. The developer defendants and LJA, through the municipal utility district, hired Rebel, Double Oak, and Texasite. Rebel and Double Oak then obtained the necessary permits for the SWPPP.

Bombshell Allegations

Here’s where it gets interesting. Sometime after that, the developers hired Storm Water Solutions to implement the SWPPP. However, they allegedly told Rebel and Double Oak that they did not have to comply with the specifications in the SWPPP.

The southern part of Woodridge Village on May 9 from a drone. Elm Grove is on left. Note lack of any perimeter sediment controls. Screen capture from Jim Zura video.

One day after the May 7th flood, the developers hired Concourse to inspect the detention ponds on the development. Plaintiffs allege that Concourse did not advise the developer defendants to makes any changes. The plaintiffs also contend that ALL defendants failed to comply with the SWPPP. The TCEQ cited both Rebel and Double Oak for violations of their permits after the May 7th flood for failure to install sediment controls.

The suit alleges that the developer defendants failed to supervise and ensure Storm Water Solutions complied with the SWPPP.

Twin culverts at the county line were severely constricted by sediment after the May 7th flood. Note lack of sediment controls such as gabions (wire baskets filled with rock).

Specific Allegations against Storm Water Solutions in Lawsuit

Storm Water Solutions website claims the company provides “complete storm water regulatory compliance to land developers, commercial and residential builders, general contractors, and utility districts.”

But in Count 10, Paragraph 76, the suit charges Storm Water Solutions with Negligence, Negligence Per Se and Gross Negligence for both the May and September floods. Specifically, the alleged negligence includes failing to:

  1. Create an adequate storm water pollution prevention plan;
  2. Implement a storm water pollution prevention plan;
  3. Comply or follow the Storm Water Pollution Prevention Plan;
  4. Install reinforced filter fabric fences around the Development;
  5. Install adequate reinforced filter fabric fences around the Development;
  6. Comply with Texas Pollutant Discharge Elimination System Construction General Permit No. TXR150000;
  7. Supervise the Contractor Defendants’ compliance with the Storm Water Pollution Prevention Plan;
  8. Enforce the provisions of the Storm Water Pollution Prevention Plan;
  9. Enforce and/or implement the best management practices under the Storm Water Pollution Prevention Plan for the Development;
  10. Implement the proper control measures on the Development;
  11. Ensure a sedimentation basin was constructed at the Development;
  12. Inspect the Development for failure to comply with the Storm Water Pollution Prevention Plan;
  13. Modify the best management practices after the May 7, 2019 occurrence;
  14. Comply with the plans and specifications for the Development;
  15. Pay proper attention;
  16. Provide notice or warning; and,
  17. Coordinate activities and/or conduct.

It also alleges they allowed:

  1. Storm water runoff into Plaintiffs’ properties;
  2. Discharge of storm water from the Development.

Stormwater Pollution Prevention Plan Requirements, Objectives

The EPA provides this easy to follow document about what a SWPPP should include. SWPPP requirements include a site map, description of pollutant sources, controls to reduce pollutants, and maintenance and inspection procedures. Plans should also describe who:

  • Is on the stormwater pollution prevention team?
  • Will install structural stormwater controls?
  • Will supervise and implement good housekeeping programs, such as site cleanup and disposal of trash and debris, hazardous material management and disposal, vehicle and equipment maintenance, and so on?
  • Will conduct routine inspections of the site to ensure all BMPs are being implemented and maintained?
  • Will maintain the BMPs?
  • Is responsible for documenting changes to the SWPPP?
  • Is responsible for communicating changes in the SWPPP to people working on the site?
State of the S2 detention pond on May 9, 2019.

Plan objectives typically include:

  • Site stabilization ASAP
  • Protecting slopes and channels
  • Promoting infiltration of stormwater
  • Controlling the perimeter of the site
  • Protecting receiving waters adjacent to the site (Taylor Gully)
  • Following pollution prevention measures.
  • Minimizing the area and duration of exposed soils.
The southern part of Woodridge Village on May 9 from the ground.

For the complete text of the Eighth Amended Petition, click here.

Posted by Bob Rehak on 12/25/2020 with thanks to Jim Zura

1214 Days after Hurricane Harvey and 461 since Imelda

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.

Colony Ridge Drainage Reports Misrepresent Soil Types, Underestimate Runoff; Many Reports Missing

Drainage reports for the controversial Colony Ridge development in Liberty County misrepresent soil types in a way that underestimate runoff by as much as 6X to 9X. As a consequence, the massive development’s ditches and detention ponds are undersized. That contributes to downstream flooding. 

In addition, virtually all of the drainage reports supplied by the county in response to my FOIA (Freedom of Information Act) request were marked “preliminary” and many were missing. The Assistant County Attorney did not explain why. She said only that she had supplied all documents “responsive to” my request that the county had.

Let’s review soil types first.

USDA Findings Contradict LandPlan Engineering’s

U.S. Department of Agriculture (USDA) classifies soil into four groups (A, B, C, D) that represent rates of rainwater infiltration. Group A has the highest rate of infiltration and D has the lowest. Think gravelly sand vs. clays.

When USDA analyzed soils in the Colony Ridge area, it found less than 2% in Group A. However, virtually all  of LandPlan Engineering, PA reports used model inputs associated with soils in Group A. Hmmmm. Quite a contradiction. LandPlan is the engineering company for Colony Ridge that produced the drainage studies.

USDA says almost no Colony Ridge soils have the lowest rate of infiltration and LandPlan says almost all do.

Comparison of USDA Soil Survey and Landplan Engineering documents

Colony Ridge also has small percentages of soils in intermediate categories:

  • B = 2.3%
  • C = 1.2%

Finally, USDA shows some mixed soil types within Colony Ridge. For instance B/D or C/D. But a flood expert and professional engineer, who spoke on condition of anonymity, said that with mixed soil types, LandPlan should have classified them as Group D. “For all of the areas with B/D and C/D, you should assume that they are D because the soil is disturbed and probably compacted in some way.” So almost 95% of the soils should should be represented with a rate of infiltration equivalent to Group D.

Compacted soil on residential Colony Ridge lot. Note ponding water and damp soil at right. Note also the erosion under back fence next to ditch. Insufficient capacity of ditch contributed to erosion.

Soil Classification Consistently Off in One Direction

Liberty County supplied 39 drainage and construction documents in response to ReduceFlooding.com’s FOIA request. The soil classifications, as shown by the Curve Numbers in the reports all erred in one direction – the direction that favored the developer’s profits.

Almost 95% of the soils should be classified in the least porous group. But virtually all of the “curve numbers” reported by LandPlan Engineering are associated with the most porous group.

By classifying the soils as more porous than they actually are, the engineers could claim there was less runoff and therefore reduce the size of ditches. Likewise, they could reduce or eliminate detention ponds.

What Curve Numbers Mean

Curve Numbers (abbreviated as CN in drainage reports and construction docs) numerically represent the rate of rainwater infiltration. They correlate primarily to soil groups, but also land use and surface conditions. For instance, after soil is paved with concrete, the curve number goes up (indicating less infiltration).

Theoretically, CNs can range from 0 (100% rainfall infiltration) to 100 (totally impervious). In practice, however, the lowest CN is 30 and the maximum is 98, according to the USDA Natural Resources Conservation Service.

What Should Colony Ridge’s Real Curve Numbers Be?

TxDoT’s Online Hydraulic Design Manual shows curve numbers for residential developments (see Curve Number Loss Model section).

For 1/2 acre lots with average impervious cover of 25% (typical of Colony Ridge), USDA estimates the following Curve Numbers: 

  • Group A = 54
  • Group B = 70
  • Group C = 80
  • Group D = 85

LandPlan Engineering used Curve Numbers mostly associated with Group A. They should have used values mostly associated with Group D. See example below from the Drainage Report for Colony Ridge’s Bella Vista Subdivision Section 1.

Excerpt from Bella Vista Drainage Report. Note Curve Number for pre-existing conditions associated with Group A soils, i.e., those having the highest rate of infiltration.

USDA’s soil report for Bella Vista Section 1 shows that the soils are Group C (69%) and Group D (31%). According to USDA and the flood expert/engineer above, the Curve Number used to calculate detention requirements for the “developed condition” should have been closer to 85. But the Curve Number on which the detention is based is 56 (see below) – a number associated with Group A soils. Note: this is a subset of the larger report for Colony Ridge discussed above.

Bella Vista Section 1 shows post-development Curve Number of only 56, associated with the highest rate of infiltration.

Importance of Accurate Curve Numbers

While Group A can absorb .3 to .45 inches of rainfall per hour, Group D absorbs only 0.00 to 0.05 inches per hour. Had LandPlan used the correct values, they would have had to accommodate 6X to 9X more rainfall.

Texdot

That would have required building larger ditches and detention ponds. But by using the Group A numbers, they could claim:

  • Floodwaters were soaking in.
  • Their roadside ditches could hold runoff. 
  • No, fewer, or smaller detention ponds were necessary.
Loss rate for each soil group represents the amount of rainfall infiltration per hour. Infiltration for Group A is at least 6-9X higher than Group D. Source: TXDoThttp://onlinemanuals.txdot.gov/txdotmanuals/hyd/hydrograph_method.htm

This suggests that LandPlan altered model inputs to achieve the desired output. The flood expert above called LandPlan’s Curve Numbers, “just plain wrong.” “Soils like that just don’t exist in this area,” he said.

Developer’s Environmental Consultant Confirms USDA’s Accuracy

One of the developer’s own environmental consulting firms confirmed the accuracy of the USDA’s and flood expert’s soil observations. Berg-Oliver developed a wetland assessment for the developer in 2014. “The United States Department of Agriculture (USDA) Web Soil Survey of Liberty County, Texas, was, for the most part, reasonably accurate in identifying the basic soil types on the property…” says the report. However, nobody in Liberty County, according to the documents supplied, questioned or even noticed the conflict between LandPlan, Berg-Oliver and USDA.

The Berg-Oliver report was NOT one of the documents supplied by Liberty County. I found it attached to an affidavit by the former Liberty County Engineer in a lawsuit between the ex-Mayor of Plum Grove and the developer of Colony Ridge.

Role in Downstream Flooding, FM1010 Washout, Erosion

Plum Grove residents report increases in the severity and frequency of flooding since Colony Ridge started clearing land. Water accumulates faster and peaks higher, they say, because of the loss of trees and wetlands. But the extra runoff that engineers have not accounted for in their calculations makes those problems even worse. That’s because Colony Ridge ditches and detention ponds can’t retain the extra runoff.

Mischaracterization of soil types likely also played a role in the washout of FM1010.

During Harvey, Colony Ridge drainage ditches discharged so much water into Rocky Branch that the stream then overtopped and destroyed FM1010. The blowout worsened during Imelda. No one has repaired it yet.

Finally, the “tractive” force (power) of rapidly moving water through undersized ditches accelerated erosion. Downstream, the eroded sediment built up and forms sediment dams that back water up, flooding additional homes in Plum Grove, or near the San Jacinto East Fork and Luce Bayou.

“Preliminary” Plans

My Freedom of Information Act (FOIA) request to Liberty County asked for ALL drainage analyses/surveys and construction plans for Colony Ridge subdivisions. However…

  • Virtually all of the plans that Liberty County supplied were marked “preliminary.” 
  • None was marked final or approved. 
  • Many were missing altogether. 
  • NOT ONE bore the signature, stamp, or comments of the Liberty County engineer or his agent, LJA Engineering. 

The 39 reports/surveys and plans are too large to post here; they comprise 1.5 gigabytes.

Liberty County has yet to clarify why so many of the plans are named “preliminary” or were missing. However, the Assistant County Attorney did verify that she supplied all Colony Ridge documents that pertained to my request.

Missing Documents

Here is a list of NINETEEN missing documents:

Missing Drainage Plans/Analyses (16)
  • Bella Vista – Section 2
  • Camino Real – All Four Sections
  • Grand San Jacinto – All Five Sections
  • Montebello – All Four Sections
  • Sante Fe – Sections 1 and 2
Missing Construction Plans (3)
  • Camino Real – Sections 1 and 2
  • Grand San Jacinto – Section 2

The problems in the 39 documents that Liberty County DID supply make one wonder what’s in the 19 they DID NOT supply.

Fallacy of Government Oversight

Not only are many documents missing, the ones Liberty County does have appear to be based on false assumptions about soil types.

I’m told by reputable engineers and floodplain administrators that this problem is common. Developers can always find engineers willing to sell favorable opinions – much like junkies know how to find doctors willing to write prescriptions for oxycodone.

Most people don’t have the expertise to evaluate reports like LandPlan’s. The hired guns know it and count on it. Cities and counties could hire engineers to thoroughly check these plans, but they don’t … for several reasons:

  • Awareness of this problem is low.
  • There’s no public pressure for counties to hire plan-checking engineers.
  • Developers make huge political contributions.
  • Floods often happen years after buildout of subdivisions.

By the time people flood, it’s too late. The damage has already been done. And the people responsible are often long gone.

Posted by Bob Rehak on 12/26/2020

1215 days since Hurricane Harvey and 464 since Imelda

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.

Preserve What Makes Lake Houston Area Unique

During my life, I’ve explored 49 states. But the state I choose to call home is Texas, and there’s no place I’d rather live in Texas than the Lake Houston Area. That’s in large part due to our proximity to nature and our fierce commitment to preservation.

This country has a lot to love. But if you love being close to nature, jobs, the arts, education, transportation, and medical care, no place I’ve found offers a better balance than the Lake Houston Area.

Our Unique Selling Proposition

You can find everything in that list above in every major metropolitan area in the country…with one exception – nature.

Sure, when you’re in other cities, you can get in your car and drive several hours to enjoy nature. Here, it’s outside your back door and down the block. Along hundreds of miles of greenbelts that wind through your neighborhood and along waterways. In the country’s largest urban nature park – the 5,000-acre Lake Houston Wilderness Park. And in the national forests and wildlife refuges that surround us.

Looking north toward Lake Houston Wilderness Park. It’s six times larger than New York’s Central Park.
Looking south along the East Fork toward Lake Houston in background over Kingwood’s East End Park, home to more than 140 species of birds, many of them threatened or endangered.

The Value of Nature

Nature is more than a place to explore. It’s a natural sedative. It’s restful. It quiets the soul and the mind. It sustains sanity. It’s an evolutionary anchor in a fast-changing society. The womb of the world. A protective refuge from conference reports, tax forms, sales quotas, deadlines, and performance reviews. It’s a place to just breathe, bask, and be.

Property Rights and Profit

To developers and sand miners who shout “property rights” in their quest for profits, I would say, “Go ahead, develop your land as you wish. Just realize what you’re selling. Don’t destroy the uniqueness that makes your property worth more than it otherwise would be if you cut down the forest, filled in the wetlands, and turned natural streams into concrete ditches.

“Hey, Dear. Let’s take the kids for a walk along the ditch. I hear the sand mine’s water turned neon green! It’ll be fun. What do you say? We can bring the dog. He’ll find plenty of dead frogs to eat.”

Yeah, people will commute an extra hour, and pay a premium to live ten feet from noisy neighbors and that!

Colony Ridge development east of Plum Grove, TX. Not long ago, this was all forests and wetlands. It’s less than three miles from Lake Houston Wilderness Park.
Water at Hallett Mine on West Fork. Photographed 12/7/2020.
Looking west up the West Fork of San Jacinto toward 20 square miles of sand mines. Photo taken in September. Water flows toward camera and then left out of frame into Lake Houston,

Plea for Preservation

So, developers and miners, please think carefully before exercising your property rights. Once the forest is gone, it’s gone forever. You will alter the watershed inalterably. Preserve the wetlands that keep surrounding areas from flooding. Preserve the “brand” you’re selling. You’re not just selling sticks and bricks. You’re selling safety.

Preserving nature preserves profit potential for generations to come.

Posted by Bob Rehak on 12/23/2020

1212 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.