At its November meeting, the Kingwood Service Association (KSA) Parks Committee voted to dredge the boardwalk and boat ramp areas of River Grove Park. The work, when done, will finally restore the park to full function.
Harvey Nearly Destroyed Park
Hurricane Harvey nearly destroyed River Grove Park. Thanks to KSA, the park has made a remarkable comeback. Harvey deposited sand five feet high in the parking lot. It left a wall of sand 12 feet high and a quarter mile long that blocked the drainage ditch that runs through the park and empties the western third of Kingwood. In the process, it also blocked the park’s boat ramp, only one on the West Fork. Finally, the storm deposited sand in the lagoon by the boardwalk and across the southern end of the soccer fields.
By the time the park is fully restored, repairs will have taken more than two and a half years.
Boat Ramp After Harvey
The Army Corps spent weeks opening up the drainage ditch that contains the boat ramp. Contractors dredged a 250-foot wide opening in the bar. Here’s how that area looked then and now from a satellite and helicopter.
Google Earth image from October 2017 shows the massive sand bar blocking the boat ramp and drainage ditch that empties the western third of Kingwood.How the sandbar looked from a helicopter two weeks after Harvey.
Sand Bar After Dredging
Image from 2/2019.Boats can now get through the bar, but the area immediately in front of the boat ramp is still filled with sediment.Photo taken October 2, 2019.
Even though boats can get by the sand bar now, they can’t get in and out of the water. Sediment remains around the ramp area and must be dredged. The Corps dredge was too big to maneuver in the tight space around the dock.
The Corps asked KSA not to open its boat docks in the name of safety while dredgers were still working the West Fork. Now, with dredging done and all the dredge pipe removed, KSA can work on reopening the dock.
Lagoon Also Filled with Sediment
The lagoon opposite the boardwalk filled with sediment during Harvey, too. Here’s what it looked like two weeks after Harvey.
The lagoon next to the boardwalk totally filled in with sand deposited by Hurricane Harvey. Photo also taken two weeks after Harvey.
The Association has already located a placement area for the spoils far from the river and any flood plain.
If permitted, removal of the sediment around the dock and boardwalk would begin in January.
Removal should take 6-8 weeks. Sediment will be placed on the parking lot to drain and dry. Then it will be trucked to the placement area in Humble.
The park could be fully functional again as early as March next year.
Public Soccer Fields Now Available
While working to prepare this project, KSA also restored the soccer fields which had been covered with sand several feet thick. All fields are now playable and KSA has designated two as public fields.
All in all, it’s been a remarkable comeback for a park that Harvey all but destroyed.
Posted by Bob Rehak on 11/19/2019, with grateful thanks to Dee Price and KSA
812 Days since Hurricane Harvey
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2019/11/RJR_4052.jpg?fit=1500%2C1000&ssl=110001500adminadmin2019-11-18 22:11:042019-11-18 22:54:25KSA Parks Committee Votes to Dredge River Grove Park Boat Ramp and Boardwalk
In October, the Texas Commission on Environmental Quality (TCEQ) issued a notice of enforcement (NOE) to a Texas Concrete Plum Grove sand mine for discharging wastewater into the East Fork. During Imelda, the mine’s dikes breached in at least four separate places. The TCEQ also issued another NOE for failure to stabilize soil in the mine before letting its permit lapse.
No Activity at Plant for Months
TCEQ investigator Christian Eubanks says they saw no activity at the plant for two months before the investigation after Imelda. No one at Texas Concrete answered phone calls to discuss their intentions for the mine.
Citizen Complaint Leads to Investigation
When floodwaters swept through the mine, sediment and industrial wastewater washed into the East Fork. Shortly thereafter, Josh Alberson, a Kingwood resident, noticed a distinct difference in the color of water coming off Caney Creek and the East Fork while boating. His personal investigation led to the mine at 7530 FM 1010 Road, Cleveland in Liberty County. After seeing the breaches, he then filed a complaint with the TCEQ which conducted a formal investigation.
12 Allegations of Unauthorized Discharges in 4 Years, Then This One
Texas Concrete Sand and Gravel, Inc. has a troubled history at its Plum Grove location. TCEQ investigated the operation nine times in the last four years for 17 alleged violations. Twelve involved unauthorized discharge of industrial waste. Then came this investigation, adding to their home run count.
Previous alleged violations included failure to:
Prevent unauthorized discharge of industrial waste (7 investigations plus 5 complaints)
Renew registration
Document steps taken to address benchmark exceedances
Comply with record keeping and reporting requirements
Maintain compliance with permitted numeric effluent limitations
Sample at designated outfalls.
Four Breaches Photographed At Texas Concrete Plant
TCEQ investigators photographed four breaches in the 70-acre mine‘s dikes.Breach 1. This and all photos below were taken by Christian Eubanks of the TCEQ.Breach 2Breach 3Breach 4
Failure to Meet Final Stabilization Requirements
On October 1, 2019, the mine allowed its permit to lapse. A TCEQ overflight on that same day found that large portions of the plant consisted of exposed soil. However, before the mine can legally terminate its permit, it must stabilize soil on the property.
TCEQ defines final stabilization as: “All soil disturbing activities at the site have been completed and a uniform (e.g. evenly distributed, without large bare areas) perennial vegetative cover with a density of 70 percent (%) of the native background vegetative cover for the area has been established on all unpaved areas and areas not covered by permanent structures, or equivalent permanent stabilization measures (such as the use of riprap, gabions, or geotextiles) have been employed.”
TCEQ photo from flyover on 10/1/2019. Note exposed soil circled in red.
Stabilizing soil helps prevent erosion and water pollution. Pollution that could escape through breaches in the mine’s dikes and affect water quality all the way down to Lake Houston.
Need for Greater Setbacks of Mines from Rivers
Since Harvey, I have campaigned to increase the setback distance of mines from rivers to prevent this type of tragedy. Texas has no minimum setbacks. Most other states require at least 100 feet and Alaska requires 1000 feet.
Texas Concrete underscores the need to establish minimum setbacks that would keep dikes from breaching. Once the owners of this mine are gone, who will be there to repair the dikes after the next flood?
Kudos to Josh Alberson for having the curiosity to investigate a problem he saw and the tenacity to follow through. People like Josh make this community great.
Posted by Bob Rehak on 11/18/2019, with appreciation for Josh Albersonand the TCEQ
811 Days since Hurricane Harvey and 60 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.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2019/11/Breach4.jpg?fit=1500%2C1128&ssl=111281500adminadmin2019-11-18 16:16:002019-11-18 16:55:11TCEQ Goes After Texas Concrete Mine With Four Breached Dikes, Unstabilized Soil and Lapsed Permit
The Army Corps of Engineers has acknowledged that neither Perry Homes, its subsidiaries nor its contractors sought a “jurisdictional determination” before filling the wetlands at the Woodridge Village construction site. Further, the Corps is now investigating whether those wetlands do fall within its jurisdiction and would have required a permit to fill.
We are a long way from determining whether there was any wrongdoing in that case and I am not alleging any.
But, in general, what could possible penalties be in wetlands cases and how are they determined? Several documents found on the EPA website give insight into how they think and assess penalties. Below is a summary plus links to the documents and several additional useful pages on the EPA enforcement website.
Corps and EPA Share Responsibility for Enforcement
The Corps of Engineers and EPA share responsibility for enforcing Section 404 of the Clean Water Act, which covers wetlands. Both civil and criminal penalties can apply to wetlands violations depending on circumstances. This page on the EPA’s site explains the shared authority.
Goals of Enforcement Program
EPA’s Section 404 enforcement program has three goals:
Protect the environment and human health and safety
Deter violations
Treat the regulated community fairly and equitably.
Factors Considered in Initiating an Enforcement Action
A wide variety of factors determine whether EPA initiates an enforcement action. They include:
Amount of fill
Acres of wetlands filled
Environmental significance
Discharger’s compliance history
Largest Criminal Action in EPA History
At one end of the spectrum, you have criminal cases. Since enactment of the Clean Water Act, EPA and the Corps have used their criminal enforcement authorities sparingly, only for the most flagrant and egregious Section 404 violations. The most significant case ever:
On February 25, 2005 in the Southern District of Mississippi, a jury convicted Robert J. Lucas, Jr., his daughter, Robbie Lucas Wrigley, and his engineer, M.E. Thompson, Jr., on all 41 counts of an indictment which charged violations of Sections 402 and 404 of the Clean Water Act, mail fraud and conspiracy.
Lucas developed and sold hundreds of lots in the Big Hill Acres subdivision that impacted approximately 260 acres of wetlands without Corps of Engineers’ permits.
In developing the lots, Lucas filled wetlands for the construction of driveways and septic systems. The construction persisted after Lucas was ordered to desist by EPA and other agencies.
Wrigley sold lots and otherwise participated in the conspiracy knowing that the lots were saturated and could not support septic systems.
M.E. Thompson, a professional engineer, wrongfully certified that the lots were suitable for septic systems, even after being told by the local health department to the contrary.
In December 2005, the District Court sentenced Lucas to 108 months in prison and Wrigley and M.E. Thompson, Jr. to 87 months apiece. The court fined each of the Defendants $15,000, assessed restitution of $1,407,400 for each Defendant and fined Lucas’s two companies Big Hill Acres, Inc., $4,800,000 and Consolidated Investments, Inc., $500,000.
The case represents the most significant criminal wetlands case in the history of the Clean Water Act.
The Decision was affirmed on appeal and the Supreme Court refused to consider it.
Factors Considered in Assessing Fines
At the other end of the spectrum, you have civil penalties with fines that can range from slaps-on-the-wrist to substantial.
Recover any economic benefit that accrued to violators, thereby assuring a level playing field for those who obey the law
Deter future violations
Promote fair and equitable treatment nationwide
Promote expeditious resolution (fast settlement)
Section 309 (d) of the CWA sets penalty factors for judges to use when determining the appropriateness of civil penalties.
Seriousness of violations
Economic benefit resulting from violations
History of violations
Good faith efforts to comply
Economic impact on violators
Other matters as justice may require
They refer cases to the Department of Justice when court ordered injunctive relief is necessary to remedy a violation, or when the violator has failed to comply with an administrative compliance order or consent order.
Formula Used in Assessing Fines
When calculating minimum settlement penalties, they use the following formula.
This determines the minimum penalty amount that the government will accept in the settlement of a case, in other words, “the bottom-line penalty” amount.
Economic Benefit Component Explained
Persons who violate the CWA by discharging dredged and/or fill material without Section 404 permit authorization or in violation of a permit may have obtained an economic benefit by obtaining an illegal competitive advantage (“ICA”), or as the result of delayed or avoided costs, or by a combination of these or other factors.
The objective of calculating and recovering economic benefit is to place violators in no better financial position than they would have been had they complied with the law.
Gravity Component Explained
The “gravity” component of the calculation considers whether the discharge endangers the health and welfare of persons. The greater the threat, the higher the weight. If the discharge has resulted in an imminent and substantial endangerment, they will apply the highest value for this factor.
Other Considerations
Secondary or Off-Site Impacts such as the extent to which discharges caused erosion and downstream sedimentation problems are considered.
Judges also consider the duration of violation. That’s the length of time that fill material has remained in place. Generally, the longer the duration, the higher the weight assigned to this factor.
Judges can also apply a Recalcitrance Adjustment Factor. The “recalcitrance” factor may be used to increase the penalty based on a violator’s bad faith, or unjustified delay in preventing, mitigating, or remedying the violation in question.
As distinguished from culpability, recalcitrance relates to the violator’s delay or refusal to comply with the law, to cease violating, to correct violations, or to otherwise cooperate with regulators.
Classes of Penalties
Section 309(g) of the Clean Water Act establishes two classes of administrative penalties. They differ with respect to maximum assessment for violations.
A Class I penalty may not exceed $11,000 per violation, or a maximum amount of $27,500.
A Class II penalty may not exceed $11,000 per day for each day during which the violation continues, or a maximum amount of $137,500.
EPA may also seek:
Injunctive relief
Criminal penalties (fines and/or imprisonment),
Civil penalties through judicial action.
Criminal Vs. Civil
When the Agency refers cases to the Department of Justice (DOJ) for civil and/or criminal enforcement under Section 309(d), EPA may seek civil penalties of up to $27,500 per day for CWA violations including the unauthorized discharge of fill.
Criminal prosecution in wetlands cases usually involves someone who knowingly or negligently discharges fill, makes false or misleading statements on permit applications, or endangers other people.
For More Information and Exact Text
The discussion above summarizes 32-pages of technical/legal EPA and Army Corps documents. I urge you to consult the sources directly for their exact wording.
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/2019/11/Corps-and-EPA.jpg?fit=800%2C697&ssl=1697800adminadmin2019-11-17 21:25:442019-11-17 22:08:56Possible Penalties for Wetlands Violations
KSA Parks Committee Votes to Dredge River Grove Park Boat Ramp and Boardwalk
At its November meeting, the Kingwood Service Association (KSA) Parks Committee voted to dredge the boardwalk and boat ramp areas of River Grove Park. The work, when done, will finally restore the park to full function.
Harvey Nearly Destroyed Park
Hurricane Harvey nearly destroyed River Grove Park. Thanks to KSA, the park has made a remarkable comeback. Harvey deposited sand five feet high in the parking lot. It left a wall of sand 12 feet high and a quarter mile long that blocked the drainage ditch that runs through the park and empties the western third of Kingwood. In the process, it also blocked the park’s boat ramp, only one on the West Fork. Finally, the storm deposited sand in the lagoon by the boardwalk and across the southern end of the soccer fields.
By the time the park is fully restored, repairs will have taken more than two and a half years.
Boat Ramp After Harvey
The Army Corps spent weeks opening up the drainage ditch that contains the boat ramp. Contractors dredged a 250-foot wide opening in the bar. Here’s how that area looked then and now from a satellite and helicopter.
Sand Bar After Dredging
Even though boats can get by the sand bar now, they can’t get in and out of the water. Sediment remains around the ramp area and must be dredged. The Corps dredge was too big to maneuver in the tight space around the dock.
The Corps asked KSA not to open its boat docks in the name of safety while dredgers were still working the West Fork. Now, with dredging done and all the dredge pipe removed, KSA can work on reopening the dock.
Lagoon Also Filled with Sediment
The lagoon opposite the boardwalk filled with sediment during Harvey, too. Here’s what it looked like two weeks after Harvey.
Since then, vegetation has grown on the sand.
Timetable for Dredging
KSA is now applying for a permit to remove the sediment from both the boat dock and boardwalk areas. KSA will use mechanical rather than hydraulic dredges.
The Association has already located a placement area for the spoils far from the river and any flood plain.
If permitted, removal of the sediment around the dock and boardwalk would begin in January.
Removal should take 6-8 weeks. Sediment will be placed on the parking lot to drain and dry. Then it will be trucked to the placement area in Humble.
The park could be fully functional again as early as March next year.
Public Soccer Fields Now Available
While working to prepare this project, KSA also restored the soccer fields which had been covered with sand several feet thick. All fields are now playable and KSA has designated two as public fields.
All in all, it’s been a remarkable comeback for a park that Harvey all but destroyed.
Posted by Bob Rehak on 11/19/2019, with grateful thanks to Dee Price and KSA
812 Days since Hurricane Harvey
TCEQ Goes After Texas Concrete Mine With Four Breached Dikes, Unstabilized Soil and Lapsed Permit
In October, the Texas Commission on Environmental Quality (TCEQ) issued a notice of enforcement (NOE) to a Texas Concrete Plum Grove sand mine for discharging wastewater into the East Fork. During Imelda, the mine’s dikes breached in at least four separate places. The TCEQ also issued another NOE for failure to stabilize soil in the mine before letting its permit lapse.
No Activity at Plant for Months
TCEQ investigator Christian Eubanks says they saw no activity at the plant for two months before the investigation after Imelda. No one at Texas Concrete answered phone calls to discuss their intentions for the mine.
Citizen Complaint Leads to Investigation
When floodwaters swept through the mine, sediment and industrial wastewater washed into the East Fork. Shortly thereafter, Josh Alberson, a Kingwood resident, noticed a distinct difference in the color of water coming off Caney Creek and the East Fork while boating. His personal investigation led to the mine at 7530 FM 1010 Road, Cleveland in Liberty County. After seeing the breaches, he then filed a complaint with the TCEQ which conducted a formal investigation.
12 Allegations of Unauthorized Discharges in 4 Years, Then This One
Texas Concrete Sand and Gravel, Inc. has a troubled history at its Plum Grove location. TCEQ investigated the operation nine times in the last four years for 17 alleged violations. Twelve involved unauthorized discharge of industrial waste. Then came this investigation, adding to their home run count.
Previous alleged violations included failure to:
Four Breaches Photographed At Texas Concrete Plant
Failure to Meet Final Stabilization Requirements
On October 1, 2019, the mine allowed its permit to lapse. A TCEQ overflight on that same day found that large portions of the plant consisted of exposed soil. However, before the mine can legally terminate its permit, it must stabilize soil on the property.
Stabilizing soil helps prevent erosion and water pollution. Pollution that could escape through breaches in the mine’s dikes and affect water quality all the way down to Lake Houston.
Need for Greater Setbacks of Mines from Rivers
Since Harvey, I have campaigned to increase the setback distance of mines from rivers to prevent this type of tragedy. Texas has no minimum setbacks. Most other states require at least 100 feet and Alaska requires 1000 feet.
Texas Concrete underscores the need to establish minimum setbacks that would keep dikes from breaching. Once the owners of this mine are gone, who will be there to repair the dikes after the next flood?
Kudos to Josh Alberson for having the curiosity to investigate a problem he saw and the tenacity to follow through. People like Josh make this community great.
For the full text of the TCEQ Report, click here.
Posted by Bob Rehak on 11/18/2019, with appreciation for Josh Alberson and the TCEQ
811 Days since Hurricane Harvey and 60 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.
Possible Penalties for Wetlands Violations
The Army Corps of Engineers has acknowledged that neither Perry Homes, its subsidiaries nor its contractors sought a “jurisdictional determination” before filling the wetlands at the Woodridge Village construction site. Further, the Corps is now investigating whether those wetlands do fall within its jurisdiction and would have required a permit to fill.
But, in general, what could possible penalties be in wetlands cases and how are they determined? Several documents found on the EPA website give insight into how they think and assess penalties. Below is a summary plus links to the documents and several additional useful pages on the EPA enforcement website.
Corps and EPA Share Responsibility for Enforcement
The Corps of Engineers and EPA share responsibility for enforcing Section 404 of the Clean Water Act, which covers wetlands. Both civil and criminal penalties can apply to wetlands violations depending on circumstances. This page on the EPA’s site explains the shared authority.
Goals of Enforcement Program
EPA’s Section 404 enforcement program has three goals:
Factors Considered in Initiating an Enforcement Action
A wide variety of factors determine whether EPA initiates an enforcement action. They include:
Largest Criminal Action in EPA History
At one end of the spectrum, you have criminal cases. Since enactment of the Clean Water Act, EPA and the Corps have used their criminal enforcement authorities sparingly, only for the most flagrant and egregious Section 404 violations. The most significant case ever:
Factors Considered in Assessing Fines
At the other end of the spectrum, you have civil penalties with fines that can range from slaps-on-the-wrist to substantial.
This document explains how the agencies determine penalties. They use multiple factors, each with weighting, that are fed into a formula. EPA designed the formula to:
Section 309 (d) of the CWA sets penalty factors for judges to use when determining the appropriateness of civil penalties.
They refer cases to the Department of Justice when court ordered injunctive relief is necessary to remedy a violation, or when the violator has failed to comply with an administrative compliance order or consent order.
Formula Used in Assessing Fines
When calculating minimum settlement penalties, they use the following formula.
Penalty = Economic Benefit + (Preliminary Gravity Amount +/- Gravity Adjustment Factors) – Litigation Considerations – Ability to Pay – Mitigation Credit for Supplemental Environmental Projects
This determines the minimum penalty amount that the government will accept in the settlement of a case, in other words, “the bottom-line penalty” amount.
Economic Benefit Component Explained
Persons who violate the CWA by discharging dredged and/or fill material without Section 404 permit authorization or in violation of a permit may have obtained an economic benefit by obtaining an illegal competitive advantage (“ICA”), or as the result of delayed or avoided costs, or by a combination of these or other factors.
The objective of calculating and recovering economic benefit is to place violators in no better financial position than they would have been had they complied with the law.
Gravity Component Explained
The “gravity” component of the calculation considers whether the discharge endangers the health and welfare of persons. The greater the threat, the higher the weight. If the discharge has resulted in an imminent and substantial endangerment, they will apply the highest value for this factor.
Other Considerations
Secondary or Off-Site Impacts such as the extent to which discharges caused erosion and downstream sedimentation problems are considered.
Judges also consider the duration of violation. That’s the length of time that fill material has remained in place. Generally, the longer the duration, the higher the weight assigned to this factor.
Judges can also apply a Recalcitrance Adjustment Factor. The “recalcitrance” factor may be used to increase the penalty based on a violator’s bad faith, or unjustified delay in preventing, mitigating, or remedying the violation in question.
As distinguished from culpability, recalcitrance relates to the violator’s delay or refusal to comply with the law, to cease violating, to correct violations, or to otherwise cooperate with regulators.
Classes of Penalties
Section 309(g) of the Clean Water Act establishes two classes of administrative penalties. They differ with respect to maximum assessment for violations.
A Class I penalty may not exceed $11,000 per violation, or a maximum amount of $27,500.
A Class II penalty may not exceed $11,000 per day for each day during which the violation continues, or a maximum amount of $137,500.
EPA may also seek:
Criminal Vs. Civil
When the Agency refers cases to the Department of Justice (DOJ) for civil and/or criminal enforcement under Section 309(d), EPA may seek civil penalties of up to $27,500 per day for CWA violations including the unauthorized discharge of fill.
For More Information and Exact Text
The discussion above summarizes 32-pages of technical/legal EPA and Army Corps documents. I urge you to consult the sources directly for their exact wording.
Other useful links, for those seeking even more information, include:
Posted by Bob Rehak on 11/18/2019
811 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.