70 Percent of HUD Grants in Texas for 2019 Floods Going to Low-to-Moderate Income Households, Neighborhoods

The Texas General Land Office (GLO) published its proposed Community Development Block Grant – Disaster Relief (CDBG-DR) Action Plan last week for floods in Texas during 2019. This 136-page document is available for public review and comment through August 27, 2020. It describes rules that the GLO will use to distribute $212,714 million in CDBG-DR grants from the US Department of Housing and Urban Development (HUD).

As matters of national policy, HUD has required grantees to spend at least 80 percent of the allocation on unmet needs in HUD identified most impacted and distressed (MID) areas; the remaining 20 percent will address unmet needs in other eligible counties. Also 70% of the funds must go to meet the needs of Low-to-Moderate Income persons.

Proposed GLO rules for HUD CDBG-DR grants in Texas for floods occurring in 2019

Eligible Counties Where Damage Occurred

The GLO is in charge of distributing money in Texas (through municipal and county governments) to people and areas affected by disasters declared as federal emergencies. In Texas in 2019 that meant ten counties in the Lower Rio Grand Valley and southeast Texas.

Eligible counties where damage occurred

From June 24 to June 25, 2019, high rain totals within Cameron, Hidalgo, and Willacy Counties in the Rio Grand Valley led to street flooding and road closures; nearly 1,200 homes destroyed or in need of major repair; and over 100 people evacuated. Rainfall totals ranged from 12 and 18 inches in some locations.

In September, Tropical Storm Imelda caused $8 billion worth of damage in Chambers, Harris, Jefferson, Liberty, Montgomery, San Jacinto and Orange Counties. Imelda, the seventh wettest storm in US history, dropped 40+ inches of rain in Chambers, Jefferson, and Liberty Counties. The highest total was in Fannett in Jefferson County where 44.29 inches fell.

How Money Will Be Distributed

HUD wants its money to increase the resiliency of homes and communities. Of the $212.714 million:

  • 70% will go to improving housing resiliency
  • 30% will go to improving infrastructure resiliency

Here’s the breakdown by by location and program in dollars and percentages. For a complete description of each program, see the Plan.

Allocation by location and program in dollars and percentages.

Eligible Single-Family Home Improvements

Single-family home resiliency solutions may include:

  • Elevating the first floor of habitable area;
  • Breakaway ground floor walls;
  • Reinforced roofs;
  • Storm shutters;
  • Use of ENERGY STAR appliances and fixtures;
  • Mold and mildew resistant products.

Eligible Multifamily Solutions

Multifamily resiliency solutions include:

  • Elevation;
  • Retention basins;
  • Fire-safe landscaping;
  • Firewalls;
  • Landscaped floodwalls

Eligible Infrastructure Solutions

Eligible infrastructure solutions include:

  • Elevating critical systems, facilities, and roadways above base flood elevation;
  • Installing backup power generators for critical systems (water, sewer, etc.);
  • Avoiding an increase in impervious cover by keeping projects in their original footprint and encouraging the use of building practices that allow for more pervious coverage;
  • Replanting with only native vegetation to preserve the natural environment;
  • Storm water management including installing retention basins, larger culverts and debris guards, and erosion control solutions; and
  • Supporting local community efforts to enhance building codes and regulations.

Limitations on Studies

Studies funded with this money may include, but are not limited to, flood control, resilient housing solutions, homelessness, or other efforts to mitigate future housing and residential damages.

Not for Feint of Heart

Warning: these 136-pages are intended for government experts and grant writers who deal with such programs all day every day. The information and its organization will prove difficult for average citizens. Think about the brain freeze you get with the giant DQ Blizzard. Now you have the picture.

Regardless, the persistent reader will be rewarded with a wealth of data about who was impacted when, where and how. Even the homeless.

The persistent reader will also get a good feeling for what’s allowed and not allowed under these rules. For instance, in 2019 disasters, victims can use grants to pay off loans. That was not allowed in Harvey.

Keep in mind that the dollars mentioned here are just for 2019 disasters, not Harvey, which follows similar, but not identical guidelines.

Posted by Bob Rehak on 8/3/2020

1070 Days after Hurricane Harvey and 319 after Imelda

Approximately 1,000 Plaintiffs File Suit Against Sand Mines in Harvey Flooding

On February 20th of this year, approximately 1,000 plaintiffs filed a 118-page lawsuit against 55 sand mining companies in the San Jacinto River Basin. Plaintiffs allege that the miners harmed them by decreasing the capacity and depth of Lake Houston and its tributaries by wrongfully discharging and negligently allowing the release of materials into waterways. That reduction of capacity, they say, contributed to flooding their homes and businesses.

Western half of LMI River Road mine in floodway and flood plain of San Jacinto West Fork. Note also in foreground how the mine undermined five pipelines carrying highly volatile liquids.

Background

To support their claims (¶613), plaintiffs cite violations of Texas Commission on Environmental Quality (TCEQ) regulations and the U.S. Clean Water Act. They claim:

  • Excessive, unauthorized discharge of silt into waterways
  • Failure to:
    • Obtain stormwater discharge permits
    • Prevent unauthorized discharges
    • Minimize generation of dust and off-site tracking

Past and Present Activities Cited

Some defendants, they say, operated above permit limits and others operated without any permits at all (¶614).

Plaintiffs say (¶615) that defendants have operated immediately adjacent to various waterways and in the flood plain, clearcutting all vegetation, and digging pits within feet of the riverbanks. Thus, there are no real barriers between mines and the rivers, they claim. Further, they allege that defendants have no plans in place for protection and preservation of their pits and loose sand during flood events, which occur frequently.

Then Came Harvey

Hurricane Harvey, they say, inundated mines and “thousands of acres of sand washed downstream, clogging the rivers and lakes, resulting in flood waters moving outside the banks and outside the flood plain, causing hundreds of millions of dollars in damages.”

Washed out road INSIDE sand mine during Harvey.
Submerged sand mines in the floodway of the San Jacinto West Fork during Hurricane Harvey in 2017

Alleged Violations of Water Code

The defendants had a duty to implement procedures to reduce the discharge of sediment into waterways, but did not, according to the plaintiffs. Thus, the proximate cause of plaintiffs’ injuries involved negligence and negligence per se. Defendants allegedly breached their duties under sections 11.086, 26.039, and 26.121 of the Texas Water Code, thus causing flooding and damage to plaintiffs’ property.

To prove negligence, personal injury plaintiffs must show that the defendants’ conduct fell below the applicable standard of care and that their actions were the actual and proximate cause of harm. 

In cases of negligence per se, defendants’ actions are assumed to be unreasonable if the conduct violates an applicable rule, regulation, or statute. That’s why lawyers cite the Texas Water Code, plus TCEQ and EPA regulations.

  • 11.086 of the Texas Water Code provides that no person impound the natural flow of surface waters, or permit impounding to continue, in a manner that damages property of another by the overflow of the water diverted or impounded.
  • 26.039 specifies that mine operators must notify the TCEQ of accidental discharges or spills that cause or may cause pollution as soon as possible.
  • 26.121 prohibits discharge of pollutants. Both the EPA and TCEQ consider sediment a pollutant.

Specific Omissions

Specific omissions, say the plaintiffs, include failing to:

  • Locate sand mines outside of floodways
  • Increase the width of dikes
  • Decrease the slope of dikes
  • Control erosion with vegetation
  • Replant areas not actively being mined
  • Protect stockpiles from flooding
  • Mine only above the deepest part of the river
Flooding from Hurricane Harvey in Kingwood’s Town Center where 100% of businesses were disrupted, most for approximately a year. Some still have not reopened. Photo by John Knoezer.

Nuisance Claim

The plaintiffs also allege nuisance. Under Texas law, nuisance refers to a type of legal injustice involving interference with the use and enjoyment of property. Specifically, plaintiffs say that the defendants’ negligent conduct caused paintiffs’ flooding, thus depriving them of the use of their homes.

Complaint against Forestar by Barrington Residents

On page 108, a subset of plaintiffs (those who live in the Barrington), lodge a complaint against Forestar (USA) Real Estate Group Inc. They allege that Forestar developed, marketed and sold homes in the subdivision without any standards for determining the elevation of a house relative to flood risk.

The Long Ride to Safety During Harvey. Barrington Photo by Julie Yandell.
The Long Ride to Safety During Harvey. Barrington Photo by Julie Yandell.

“Despite having actual knowledge of the possibility of flooding in the Barrington Subdivision, Forestar did not advise homebuyers to purchase flood insurance,” says the complaint (¶640). “Nor did Forestar advise the residents of the Barrington Subdivision of its location on a floodplain, or that their elevations were changed due to lots being filled with dirt” when residents purchased homes.

Nevertheless, the complaint continues (¶643), homes were built at an “unreasonably low” elevation, given their location near the West Fork San Jacinto. “Forestar knew, or should have known, that houses needed to be built at an elevation adequate to prevent and/or reduce the likelihood of flooding.”

Clean out after Harvey in the Barrington. By Joy Dominique.
Clean out after Harvey in the Barrington. By Joy Dominique.

Damages Alleged

Plaintiffs allege damages that include:

  • Cost of repairs to real property
  • Cost of replacing personal property
  • Lost of use of real and personal property
  • Diminution of market value
  • Loss of income, business income, profits and business equipment
  • Loss of good will and reputation
  • Consequential costs, such as loss of time from work and alternate living expenses
  • Mental anguish
  • Pre- and post-judgement interest
  • Court costs

Conscious Indifference and Gross Negligence

¶658 asserts that the conduct of all defendants (sand mines and Forestar) qualifies as gross negligence under Texas law. The plaintiffs say that the defendants acts of omission involved an extreme degree of risk, considering the probability and magnitude of harm to others. Plus, “Defendants had actual subjective awareness of the risk involved in the above described acts or omissions, but nevertheless proceeded with conscious indifference to the rights, safety and welfare of plaintiffs and others.”

Where Case Stands

129th District Court Judge Michael Gomez signed a docket control order on 2/28/2020 that calls for:

  • All parties in the suit to be added and served with notice by 8/19/2020
  • Close of pleadings and start of mediation on 12/16/2020
  • End of discovery on 1/15/2021
  • All motions and pleas heard by 1/15/2021
  • Trial, if necessary, on 2/15/2021

To date, there have been several motions to transfer venue, dismiss the case, and change the judge.

Only Triple PG Sand Development, LLC has filed an answer to the plaintiffs’ claims; the company filed a general denial.

In a separate case, the Attorney General of Texas is suing Triple PG for failing to prevent and repair breaches in dikes that resulted in repeated unauthorized discharges of process wastewater and sediment into Caney Creek. Caney Creek joins the East Fork San Jacinto just downstream from Triple PG. Triple PG currently operates under an injunction that bars it from dredging.

Breach of Triple PG mine into Caney Creek and the headwaters of Lake Houston

Editorial Opinion

If successful, this case may force sand mines to operate more responsibly, now and in the future. For instance, it might force them to move farther back from rivers and out of floodways. Having taken thousands of photos of leaking sand mines from the air since Harvey, in my opinion, that might benefit everyone, not just the plaintiffs.

Giant sand bar at the mouth of the West Fork which backed water up through much of Kingwood, Atascocita and Humble.
Mouth bar on the East Fork San Jacinto grew by thousands of feet during Harvey and Imelda. Downstream from Triple PG and Texas Concrete Mines.

To read the entire lawsuit, click here.

Posted by Bob Rehak on August 2, 2020

1069 Days after 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.

Easy Way to Find the Elevation of a Home and the Slopes Around It

Ever wonder how high your slab is compared to the elevation of your street? Or where water is likely to collect in a neighborhood? The US Geological Survey (USGS) has given us a quick and easy way to lean more about elevation.

While the site says the elevations are not as good as a survey’s, I found the elevation for my house to be within inches. This is not something to take to the bank, but if you’re trying to:

  • Screen several properties for purchase
  • Figure out why some people in a neighborhood flooded and others didn’t
  • Understand where floodwaters might collect

…this is a good place to start.

To Find Elevation

  • Go to this U.S. Geological Survey website called the National Map Viewer.
  • Enter an address or just zoom into the area of interest.
  • Select a base map by clicking on the icon with the four squares that form another square. Different base maps allow different degrees of zooming and show various features such as streets, water features, topography, etc., so experiment.
  • Above the map area, click on the icon that shows an XY.
  • A box will pop up on the right side of the screen. Within it, click “Activate.”
  • Click on the map location or locations that interest you.
  • An info box will pop up that shows the location and elevation at the blue dot(s) where you clicked.
  • To erase the points you selected, click “Deactivate.”
Elevations for Riverwood and East End Park Parking Lot

You can click as many different points as you want. A list of ALL the places you clicked with their elevations will show up in the right hand box.

In the example shown above, you can see that Riverwood Middle School at the intersection of High Valley and Kingwood Drive is at 65.03 feet. You can also see that the entry for East End Park is at 53.68 feet – more than 11 feet lower just a couple blocks away.

How High Is A Home Above Street Level?

This question is crucial if you want to avoid street flooding during high intensity rainfalls that overwhelm the capacity of storm drains and force water to back up in the streets.

  • Switch to the base map called Streets (if you were in something else)
  • Zoom in on the area of interest or enter an address.
  • Again select the XY tool.
  • Click on the home that interests you to see the elevation of the slab.
  • Click on the street in front of it.
Note 3 foot elevation difference between slab and house in Streets Basemap.

Three feet is a pretty good difference. But another home in the same neighborhood has a 4.5 foot difference!

This home sits 4.5 feet above the street.

Click around in different neighborhoods, especially those that flooded. On a block that flooded badly in Elm Grove, one home escaped. It was also 4.5 feet above street level. Others around it ranged from 1 to 3 feet above street level.

When buying a home, elevation above street level can be a valuable consideration.

Streets are usually considered part of the flood retention system. Developers size storm drains to hold a 1- or 2-year rain. Everything beyond that up to a 100-year rain backs up into the street until it can be safely released into drainage ditches. If you aren’t high enough…

Slope Within Neighborhoods

USGS offers another useful tool called elevation profiling. To the left of the XY tool, click the tool called Profile.

  • A box will pop up on the right of the screen. To activate this tool, click on the ruler icon in the box.
  • Define a path with two or more points.
  • In the example below, I followed the curves of a street by clicking multiple times.
  • When you get to the end of the area of interest, DOUBLE click.
  • Double clicking changes the tab in the right hand box and starts compiling an elevation profile result.
  • Give the site a few seconds to compile and display the profile.

When this profile popped up, I saw that this street had six feet of slope from the west end of the block to a low point in the middle and then rose back up three feet to the school on the right.

Example of Elevation Profile Tool. Note the U-shaped profile in blue and brown on the right.

It’s common practice to slope streets; developers must to ensure that water drains to storm sewers. But when the rain comes down so fast that the storm drains can’t handle it, guess where the rain will collect. I’m not sure I would want to buy the house at the bottom of the bowl. (At least not without a discount to compensate for the risk.)

Powerful Tools at Your Fingertips

USGS has given us a fascinating tool kit. I have just begun to explore the power of this site.

Several people in Kingwood’s Woodstream Village approached me about some flooding on their street. Using the tools on this site, I quickly developed a theory that accounted for all the eyewitness stories.

Have fun exploring this fascinating tool.

Posted by Bob Rehak on 8/1/2020 with thanks to Laura Norton

1068 Days since Hurricane Harvey and 316 since Imelda