River Grove Dredging Done, Only Cleanup Left

Ever since Harvey filled up the lagoon next to the River Grove boardwalk, Kingwood residents have clamored to restore the area. This week they got their wish. Kayden Industries has removed its two dredges and the giant “shaker” that separated sand from water. This morning, all that remained of the operation was a front-end loader, a giant pile of sand, and dump trucks rapidly carrying it away. They should be done with the operation this week.

Damage Due to Harvey

Here’s the story in pictures starting with Harvey.

The lagoon next to the popular boardwalk at Kingwood’s River Grove Park has totally filled in with sand deposited by Hurricane Harvey.
Harvey also left a 10-foot high sandbar that blocked the drainage ditch that runs through River Grove.

Army Corps Breaks Through Blockage

Before the Kingwood Service Association could do anything, the Army Corps and Great Lakes Dredge and Dock had to break through that sand bar, and open up the park to the river again.

KSA Excavates Park and Plans Dredging

It took the next year for KSA to:

  • Remove up to five feet of sand covering the parking lot and areas near the boardwalk
  • Restore soccer fields also covered in sand
  • Repave access roads and parking lots undermined by churning floodwaters
  • Inspect the boardwalk to ensure it was structurally sound.
  • Draw up a dredging plan for the lagoon with an engineer.
  • Identify a suitable place to put the spoils.
  • Bid the job.
  • Approve the plan and expenditure.
Note height of sand in River Grove parking lot relative to parking sign in background.

It was a monumental effort. Dee Price, KSA President and steward of River Grove Park, and Bruce Casto, KSA’s maintenance man, deserve kudos for spearheading the effort and saving this park.

Step One for Dredging: Remove Vegetation

KSA approved River Grove dredging in November of 2019 but left the park open for the holidays. Mobilization began in January and dredging finally began in February of 2020.

Between Harvey and the end of 2019, vegetation had grown up over the sand deposited in the lagoon.
Step one in the dredging: Remove the vegetation that had grown on the sand.
Then, Kayden Industries mobilized a mini dredge. The dredging took seven weeks.

Drying the Spoils Before Trucking

Kayden also brought in this giant machine to separate sand from water. It works like an oilfield shaker used to separate drilling cuttings from drilling mud.

Last Week, Demobilization Began

Almost two months after it started, Kayden began demobilizing. Resident Josh Alberson captured the image below with his drone.

Last week, Kayden Industries started demobilizing their equipment. Here we see one of the two dredges getting ready for removal from the water. Kayden brought in a smaller dredge when the City lowered the level of the lake suddenly. The first dredge is up on blocks behind the pile of sand. Photo courtesy of Josh Alberson.
This morning, where the shaker once stood, nothing but some sand remains.
A giant pile of sand still blocks the boat dock.
But dump trucks were lining up to receive the sand and carry it to a placement area in Humble out of the flood plain.
The finished job: a beautifully restored lagoon, complete with some marshes to attract birds.

Water along the boardwalk is 3-5 feet deep, so don’t let kids play in it. That could be dangerous.

Some Repaving Left to Do

All the heavy traffic has taken a toll on park roads. “Everyone needs to understand that the paving problems on the road between the gate and the first stop sign were there long before we started trucking dirt,” said Dee Price, KSA President. “We have patched that area numerous times in the past.” Price said KSA needs to mill and re-pave that piece of road as the group did with the soccer road. Price plans to put that project in the next fiscal-year budget. But for now, she says, “We need to patch it again until we can do the major improvement next year.”

Posted by Bob Rehak on April 14, 2020 with thanks to Josh Alberson for the drone imagery

958 Days since Hurricane Harvey

Insurance Company to Sand Miner: Defend Yourself, We’re Not Responsible for Pollution

On 4/9/2020, Everest National Insurance company filed a lawsuit in US District Court for the Southern District of Texas, against one of its policy holders, Megasand, Inc. Everest wants a declaratory judgment stating that it is not responsible for the defense of its client, nor for any settlements or judgments that may arise from underlying cases that it specified (see below).

Courthouse News Service Alert

Yesterday, a local lawyer, Steven Selbe, noticed an alert from the Courthouse News Service (CNS) and, in turn, alerted me.

CNS said, “Megasand Enterprises is a defendant in several Harris County Court lawsuits in which residents claim their homes flooded in August 2017 because Megasand and other gravel mining companies negligently dumped sediment into Spring Creek and the San Jacinto River, reducing the waterways’ capacity to absorb flooding caused by Hurricane Harvey. Plaintiff seeks a declaration it does not have to defend nor indemnify Megasand against the litigation.”

Underlying Cases

After Hurricane Harvey, hundreds of residents in the upper San Jacinto River watershed banded together in several lawsuits against sand mines. The suits allege that mines located near the river and its tributaries discharged silt and sediment without authorization. That, they claim, reduced the ability of the river and Lake Houston to handle floodwaters, which in turn contributed to the flooding of their homes and businesses. The first lawsuit alleges nuisance, negligent conduct, gross negligence, and violation of the Texas Water Code Section 26.121. It names Megasand as a defendant. Several subsequent lawsuits were consolidated with this one.

Another suit filed this February represents 437 plaintiffs and 55 defendants, also including Megasand. This suit alleges negligence and negligence per se. Negligence per se is the unexcused violation of a statute. The suit alleges, in part, that defendants owed a duty to Plaintiffs to implement procedures to reduce the discharge of sediment, but did not.

Impact if Everest is Successful

This is not good for the folks who actually want to recover money, but may put some sand mines out of business. The insurance company says that Megasand’s policy does not cover pollution. Therefore, Everest wants to stop paying for Megasand’s defense. If the judge agrees, Everest would not have to pay for any settlements, judgements, or legal fees.

Says Selbe, “The good thing if you are an insured being defended is that your defense fees and costs are usually paid by the insurance company and often the insurance company eventually pays to settle. In this case, the insurance company wants out of the box altogether. That’s bad for Megasand. It will have to pay to fight this lawsuit and if it loses, will have to pay to defend the flood cases and any judgments or settlements.”

Mouth bar of the San Jacinto West Fork. Photo taken on 9/14/2017, two weeks after Harvey. More than 4000 structures flooded behind this blockage.

Even though Harris County courts are trying the underlying lawsuits, Everest filed its suit against Megasand in federal court. The insurance company is incorporated in Delaware and the sand company in Texas.

Reading Everest’s policy agreement with Megasand may cause other insurers and insureds to review their own policies. If sand miners cannot get insurance because of their current business practices, it may force them to modify their practices to reduce risk.

Basis for Everest Claims

The Everest suit claims, in part:

  • “Our right and duty to defend end when we have used up the applicable limit of insurance…”
  • The insurance does not apply to…property damage that is “expected“ from the standpoint of the insured.
  • The insurance also does not apply to “pollution” and the “processing or treatment of waste.”

Stepen O. Venable of Walker Wilcox Matousek LLP represents Everest National Insurance Company.

It’s not clear what triggered the Everest suit at this time. Plaintiffs filed the first of the underlying suits in 2018.

Editorial Opinion

Dozens of posts on this blog have documented discharges from sand mines. I have so many aerial photographs that I have personally concluded that pollution is part of most mines’ normal business practices. If caught, mines simply pay a slap-on-the-wrist fine.

Since mines were forced to register in 2011, the average fine has been only $800.

In essence, that makes Texas a “pay-to-pollute” state for sand miners.

If Everest is successful, the “expected” part of their claim may form a precedent that transforms the mining industry in this state. Especially if the Attorney General successfully prosecutes the Triple PG mine in Porter. The Attorney General alleges serial pollution and seeks fines that could exceed a million dollars. (Note: The underlying suits in this Megasand case also name Triple PG as a co-defendant.)

Financial risk may produce changes in business practices that Austin has not been willing to legislate.

Posted by Bob Rehak on 4/11/2020 with thanks to Steven Selbe

956 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.

Perry Homes Expanding N2 Detention Pond on Woodridge Village Site; Also Building Up Low Areas

On Wednesday, Perry Homes resumed construction on the Woodridge Village Site in two areas: adjacent to the N2 detention pond and along Woodland Hills Drive. Today, we know more about the nature of the construction activity next to N2 thanks to receipt of construction plans from Montgomery County on Thursday morning. The plans were part of a Freedom of Information Act Request.

N2 Detention Pond Expanding North and East

The new plans show an expansion of the N2 pond to the north and the east. In the satellite image below, “A” represents the original N2 pond which Montgomery County built 15 years ago. “B” represents the approximate expansion area which will be about 8 to 10 feet deep.

A = Original N2 Pond. B = Expansion Area.

City of Houston approved the plans on 3/17/2020, according to this inspection report dated 3/30. Montgomery County approved them the same day according to the County Engineer’s stamp on the plans. Below, see what the same area looked like from a helicopter before construction started.

“Work” indicates where excavation started on Wednesday. Excavation in the area labeled “N2” pre-dates Perry’s ownership of the land.

See below what the N2 area area looked like on Good Friday morning, two days AFTER construction started. Compared to the photo above, contractors took out the crescent shaped row of trees on Thursday. They also started excavating the expansion area.

Looking south at N2. Note: trees are gone. Expansion area is about one-quarter to one-third excavated in two days. See pond in upper left. Photo courtesy Matt Swint.

Part of the dirt from this excavation work went to fill in former wetland areas in the foreground of the image above.

Here’s the same area looking west from a vantage point farther south over Taylor Gully. The area between the old pond and the expansion area still needs excavation. Photo courtesy Matt Swint.
Height of excavator is about equal to depth of pond. Water in pond is due to a one-inch rain late yesterday. Photo looking west courtesy of Matt Swint.
Layout of subdivision immediately north and south of triangular-shaped N2.

Also Filling Low Area Along Woodland Hills

“A” represents N2 and the expansion area. “B” is the area along Woodland Hills where other contractors used part of the excavated dirt to fill in boggy areas.
This shows new fill in Area B from photo above.

Two reports (Wednesday and yesterday) from other sources suggested that Harris County was responsible for this work. However, a call to Precinct 4 Commissioner Jack Cagle’s assistant this morning indicated the County is NOT involved in this construction activity.

New Contractors On Job

Note filled area in background adjacent to Woodland Hills Drive. Logo on truck and other equipment parked there today reads “D&J Construction.”
Logo on equipment parked today at the northern Webb Street entrance indicates that Allgood Construction is working on the excavation, one of their specialties.

Plans show that detention pond N1 will eventually go where these trucks are now parked.

I counted six pieces of equipment on the southern section of Woodridge and at least 12 on the northern section, including those above. By my count, that’s a record. I’ve never seen so much earth-moving equipment on this site at one time.

Listing Sign Still Up

A sign at the Woodland Hills entrance today indicated that the Perry property is still listed for sale.

Sign adjacent to Woodland Hills entrance to Perry property indicates that Land Advisors is acting as property broker. Photographed Friday, 4/10/2020.

Due to the Easter weekend, with most staff off, Commissioner Cagle’s office could not reply today about the status of negotiations with Montgomery County, the City of Houston, and Perry Homes to purchase the property.

In their meeting Tuesday, Harris County commissioners discussed trying to negotiate Atlas-14 compliance and closure of the “beat the peak” loophole with Montgomery County. As a contribution from the City, they also requested land in lieu of cash to help defray costs on other Flood Control projects.

Two More Detention Ponds Planned But Not Started

The City and MoCo previously approved plans for N1 and N3, two other detention ponds on the northern section of Woodridge Village. Contractors have not yet started excavating those.

Looking south on eastern boundary toward Elm Grove, where the N3 detention pond will go. Work has not yet started here.

Posted by Bob Rehak on 4/10/2020 with help from Matt Swint

955 Days after Hurricane Harvey and 204 after Imelda