Below is the Sierra Club response to the Army Corps’ public notice about Romerica’s proposed high-rise development in Kingwood, near River Grove Park.

A number of people have asked me post responses that people have already sent into the Corps. Feel free to cut and paste sections that capture concerns you have.

January 1, 2019

Evaluation Branch, North Unit
Regulatory Division, CESWG-RD-E
Galveston District
U.S. Army Corps of Engineers
P.O. Box 1229
Galveston, Texas 77553-1229

Texas Commission on Environmental Quality
401 Coordinator
MSC-150
P.O. Box 13087
Austin, Texas 78711-3087

Dear Corps and TCEQ,

Enclosed are the comments of the Houston Regional Group of the Sierra Club (Sierra Club) regarding the U.S. Army Corps of Engineers (Corps) Galveston District, Section 10/404 proposed Permit Application No. SWG-2016-00384, Romerica Investments, LLC, located in waters of the United States (U.S.) and wetlands adjacent to the West Fork of the San Jacinto River, Kingwood, Harris County, Texas.  

Point #1 – This proposal will…

• Fill 42.35 acres of wetlands with 68,323 cubic yards of fill material on 331.45 acres. 

• Fill 771 linear feet of streams with 285 cubic yards of fill material.

• Construct a marina/resort district of 107.41 acres and use 19,690.7 cubic yards of fill material to fill 12.21 acres of wetlands; expand an existing 15-acre lake associated with the West Fork of the San Jacinto River to an 80-acre marina with a capacity of 640 boats; construct a new navigation channel south of the proposed marina; expand the existing channel on the east to connect the marina and the West Fork of the San Jacinto River; develop 25 acres north of the marina into a resort district with commercial and residential development; construct five towers with a height of 90 feet for the western hotel area, 260 feet for the residential condominium towers, and 500 feet for the eastern hotel and condominiums; excavate fill material to raise the elevation of the entire resort district from 45 to 57 feet (13 feet total) above base flood elevation of the 100-year floodplain of the West Fork of the San Jacinto River.   

• Construct a commercial district of 64.41 acres and use 959.6 cubic yards of fill material to fill 0.59 acre of wetlands and 110 linear feet of streams; construct on 47 acres retail, residential, and office developments; construct three towers that range from 230 to 400 feet tall for retail offices and residential condominium towers; construct a 70-foot tall mid-rise residential and retail development; construct parking garages with two below grade levels and concealed above grade levels; expand an existing 16.25-acre lake to a 19.25-acre lake (3 acre expansion) to create a marina for personal watercraft parking; create a 125-foot wide interconnecting channel between the 80-acre marina and 19.25-acre marina to provide access between the two marinas, marina/resort district, and the commercial district; excavate fill material to raise the elevation of the entire resort district from 45 to 57 feet (13 feet total) above base flood elevation of the 100-year floodplain of the West Fork of the San Jacinto River.   

• Construct a residential district of 136.93 acres and use 46,213.9 cubic yards of fill material to fill 28.60 acres of wetlands and 404 linear feet of streams; construct on 64 acres 65-foot tall condominium structures which are on 58.5-feet tall pier/beam foundations with elevated first floor parking and with four stories that will be above the 100-year floodplain of the West Fork of the San Jacinto River; construct on 6-acres, 25-story condominiums with parking garages; place fill in the southern portion of the residential district to raise the structures and elevations to 57 feet above the 100-year floodplain of the West Fork of the San Jacinto River; construct four lakes for a total of 6.75 acres in the western portion of the residential district; construct 1.95 miles of  41-foot wide roadways within a 60-foot wide right of way in the residential district; construct 4-foot and 8-foot wide trails within a 20-foot wide easement around the perimeter of the residential district and use bridges to cross all streams and channels; relocate the existing utility easements that are in the proposed 20-foot pedestrian trail easement.  

• Construct a Woodland Hills Road expansion of 22.7 acres and use 1,743 .8 cubic yards of fill material to fill 0.96 acre of wetlands and 257 linear feet of streams; construct Woodland Hills Drive so it is expanded from two to four lanes, has turn lanes, and has a raised median for 1.45 miles, from 0.08 mile south of KIngwood Drive to Hamblen Road.

• An unknown number of culverts and water quality ponds will be installed.

• Conduct offsite permittee responsible wetland mitigation or purchase credits from an approved wetland mitigation bank.

Point #2:

Page 2, Project Description, Public Notice,now that Hurricane Harvey has revealed the full impacts of flooding in our area, before approving proposals like this one, which are in the 100-year floodplain/floodway, the Corps should require an analysis, using Harvey and other data, about the flood potential and safety of construction in the floodplain/floodway of the West Fork of the San Jacinto River and its tributaries, including Bens Branch-Frontal Lake Houston Watershed, which flooded during Hurricane Harvey.

Although the full extent of the 100-year floodplain/floodway of the West Fork of the San Jacinto River in the 331.45 acres proposed for residential, commercial, resort, and marina developments is not stated in the Public Notice and Plans, most of the 300 plus acres appear to be within the 100-year floodplain/floodway.  According to the Project Description,all of the Marina/Resort District of 107.41 acres, all of the Commercial District of 64.41 acres, the southern portion (we are not told how large this portion is) of the Residential District of 136.93 acres, and the Woodland Hills Road Expansion of 22.7 acres appear to be in the 100-year floodplain/floodway of the West Fork of the San Jacinto River and will have to be filled a maximum of 13 feet to get above the 100-year floodplain/floodway.

Exhibits 2, Plan Overview and 9, Plan View D1, Plans,clearly show that a floodway goes right through the middle of the southern marina, commercial, hotel, and condominium resort district complex near the West Fork of the San Jacinto River and that there is a HCFCD Unit G103-00-00 drainageway that flows just southwest of the boundary of the proposed developments.  In combination with dredged channels, these conduits for flood water will bring more flood water onto the site and help flood the site.

This development makes no sense because it exists right where Hurricane Harvey created some of the worst flooding in 100-year or greater floodplains/floodways; will fill and displace about 200 acres of 100-year floodplain/floodway which will raise water levels and increase the possibility of flooding for others, both up and downstream; will fill in wetlands that are crucial for soaking up water and reduced flows, velocities, and increased sedimentation of the West Fork of the San Jacinto River in its 100-year floodplain/floodway; is subject to further flooding in the future; and destroys more of the natural beauty, water quality, and wildlife habitat of the West Fork of the San Jacinto River.

The Corps must require that the applicant conduct extensive and detailed hydrology and hydraulic studies of the undeveloped site, the proposed developed site, and their interaction with the West Fork of the San Jacinto River and its tributaries during floods.  At least 35 stream segments and 5 lakes/ponds currently exist on the site which are all potential sources of flooding to the site.  This should include an analysis of how the three channels that will be dredged will affect flooding by acting as conduits for floodwater to the rest of the site.  There is no documentation provided from Harris County Flood Control District or City of Houston about how much detention and drainage mitigation are needed to keep these proposed developments from flooding themselves or others who live up or downstream.  This information is needed so the public can review and comment on its adequacy.

The entire 335.45 acres is perforated with stream segments or lakes/ponds.  According to the Waterbody Impact Table, Updated July 2018, there are at least 5 existing lakes that are on the property and there are at least 35 stream segments. These waterbodies will flood during the climate change induced intense rainfalls that have become common in the Kingwood area.  The site is like swiss cheese and is pock-marked with lakes/ponds, stream segments, and 73 separate wetlands that exist on the 335.45 acres.  The water-holding, slowing down, soaking in, and evaporation capacity of 49 of these wetlands will be directly impacted by either total or partial filling due to this proposal.  Remnants of these wetlands will be less able to deal with floodwaters and will be impacted by operation and maintenance actions and activities that create erosion and sedimentation and reduce their flood mitigation capacity over time.  These issues need to be addressed by the applicant, stated in the Public Notice, modeled by the applicant, and revealed to the public for review and comment.  

Point #3

Page 2, Project Description, Public Notice, the applicant does not provide any documentation about how it will provide for operation and maintenance dredging of the site so that Section 10 navigation will continue over the lifetime of the developments and after floods.  Periodic dredging will be required as flood waters fill the three channels and floodplains/floodways with sediment. Dredge disposal areas will be needed onsite to allow dredge material to be placed in areas where the 100-year floodplain/floodway is not affected.  The Corps should require that the applicant prepare a dredge disposal management plan.  The public should see this plan and review and comment on its adequacy.

A Section 10 navigation analysis should be conducted by the Corps and this analysis should be provided to the public for its review and comment. The applicant should be required to conduct modeling to determine how boat wakes and flooding will affect erosion and sedimentation of lakes, channels, streams, the West Fork of the San Jacinto River, and its 100-year floodplain/floodway.

Operation and maintenance erosion and sedimentation controls should be required in perpetuity.  The applicant states that it will expand the “existing 15-acre lake associated with the West Fork San Jacinto River”.  This indicates that this lake is natural and a part of the West Fork of the San Jacinto River.  This means that at least 15 acres of waters of the U.S. will be altered by this proposal. Mitigation for this alteration should be required along with wetlands and streams mitigation.   

Point #4

Pages 3 and 4, Avoidance and Minimization, Mitigation, and Notes, Public Notice,the Corps should require that the applicant now provide its permittee responsible mitigation plan for wetlands, streams, and waters of the U.S. and or purchase of wetland credits from wetland and stream mitigation bank(s), so the public can review and comment on its adequacy.  Any wetlands or streams left after proposed developments are constructed will be impacted by developments’ actions and activities and the applicant’s operation and maintenance of developments (secondary impacts) like mowing, trampling by people, use of herbicides, use of pesticides, cutting of vegetation, fertilizer use, use of motorized machines (off-road vehicles), wildlife mortality due to cats and dogs, pet fecal material, roadkill, light pollution, noise pollution, oil and fuel spill pollution, littering, trash dumping, mosquito control, bird collisions with buildings, non-native invasive plant species spread, illegal fills or excavations, nonpoint source water pollution from impervious surface run-off, etc.  There must be an analysis of developments’ actions and activities and operation and maintenance impacts and the applicant must prepare and present to the public for its review and comment developments’ actions and activities and operation and maintenance plan that will be implemented after construction.

The Sierra Club visited the site on December 31, 2018 and walked the west perimeter.  The Sierra Club found in many places Dwarf Palmetto, Loblolly Pine, Yaupon Holly, Trumpet Vine, Water Oak, Sweetgum, American Elm, Laurel Oak/Willow Oak, Swamp Chestnut Oak, Japanese Climbing Fern, Greenbriar vine species, Common Persimmon, American Sycamore, Cinnamon Fern, and Bald Cypress along streams and in flatwoods on the site. Much of the site is a Palmetto-Hardwood bottomland forest or a bottomland flatwoods forest.

In the more upland areas (which are needed as “buffer zones” to prevent water quality degradation over the short and long-term of conservation areas, streams, bald cypress sloughs, bottomland hardwood forested wetlands, bottomland flatwood forests, and riparian woodlands) the Sierra Club found Eastern Hophornbeam, Red Bay, Cherry Laurel, Farkleberry, American Beautyberry, Yaupon Holly, and Post Oak. 

It is a concern that the Corps has not verified the Interim Hydrogeomorphic assessment and Level 1 Stream assessment.  This is particularly important since a major river, the West Fork of the San Jacinto River and part of Lake Houston, will be impacted by these developments.  The public should be provided this information so that it can review and comment on its adequacy.  The Corps should either deny the permit application or return it to the applicant until the mitigation plan is prepared and made available for the public to review and comment.  At the very least, the wetlands mitigation for such a proposal should be 10:1 which would mean an over 400 hundred acre permittee responsible wetlands mitigation project or credits from one or more wetland mitigation banks.

There is a total of 73 wetlands on site; 5 lakes/ponds (waterbodies and waters of the U.S.), and 35 stream segments.  Of these wetlands, there are 41 palustrine emergent wetlands (PEM); 29 palustrine forested wetlands (PFO); and 3 palustrine scrub-shrub wetlands (PSS).  This proposal will result in the degradation, partial destruction, or complete destruction of 7 stream segments whose total length is 771 linear feet and fill volume is 285 cubic yards.

Of the 41 PEM that exist on the site, 23 (56.10%) will be totally destroyed and 5 (12.20%) will be partially destroyed; of the 29 PFO that exist on the site, 8 (27.59%) will be totally destroyed and 12 (41.38%) will be partially destroyed; and of the 3 PSS that exist on the site, 2 (66.67%) will be totally destroyed.  The number of wetlands that will be totally destroyed on the site is 33 (45.21% of all wetlands – all PEM + PFO + PSS) and the number of wetlands that will be partially destroyed on the site is 17 (23.29% of all wetlands – all PEM + PFO + PSS).  The wetland flood detention and clean water filtration capacity of the site will be severely damaged by the proposal because 68.50% of all wetlands on the site will either be totally or partially destroyed.

When looked at from an acreage perspective, of the 87.177 total acres of wetlands on the site (Wetland Impact Table), 42.349 acres (48.58%) of all wetland acres on the site will be destroyed.  

The fact that the applicant is unwilling to abide by an “existing 17.59-acre conservation easement” for another Corps permit means that the applicant cannot be trusted to ensure that any promised future mitigation for this proposal will be protected in perpetuity.  The Sierra Club requests that the Corps deny this permit based upon the existence of this conservation easement in perpetuity and or require that the applicant protect the 17.59 acres and conservation easement from any impacts due to the proposed developments.  This includes forgoing any commercial and residential development within or next to this conservation easement so that it is protected in perpetuity (a buffer is needed to protect the conservation easement).  The applicant apparently has not placed an adequate number of acres into the conservation easement (12.19 acres of wetlands and 8.99 acres of upland buffer, or 21.18 acres) because the conservation easement is 3.59 acres short of what was required for the previous permit on the site.

This proposal violates Section 404(b)(1) Guidelines, which are mandatory for the Corps to follow as part of the implementation strategy that the Clean Water Act requires.  Section 404(b)(1) Guidelines require that non-water dependent actions (hotels, access roads, condominiums, residential areas or districts, commercial areas or districts, and resorts) must not be permitted to destroy wetlands which are “special aquatic sites”.

However, that is exactly what this proposal does since it would put all of these uses in jurisdictional palustrine forested wetlands (riparian woodlands and bottomland hardwood wetland forests), palustrine emergent wetlands, and palustrine scrub-shrub wetlands. Practicable alternatives exist including no development in most wetlands which would mean a smaller and less destructive proposal.

This practicable alternative is “available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.”  As required by the Section 404(b)(1) Guidelines, “If it is otherwise a practicable alternative an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered”.

There is no documentation in the permit application public notice that shows that the permittee has conducted a study to determine if other sites exist which could be used. As the Corps knows the presumption is that these practicable alternative sites exist in the Section 404(b)(1) Guidelines “unless clearly demonstrated otherwise”.  No such demonstration is evident in the information the Corps sent out with the public notice.  The public must have this information, so it can review, comment.

Point #5

Page 4, Notes, Public Notice,the Corps states that project information has not been verified.  The Sierra Club is concerned about Corps policy that allows the release of public notices with information furnished by the applicant that has not been verified. This puts the public in an untenable situation of not knowing if the information it reviews is valid, complete, and accurate.

The Sierra Club strongly believes that verified project information should be part of all public notices.  Without verified public information the public does not know whether the information that it relies upon to make public comments is accurate and true.  The Corps should change its policy and verify applicant information.  After all, if the Corps, the regulatory agency that issues the permit, does not verify applicant information, then who will?  The public must have this information so that it can review, comment on, and understand all the potential environmental impacts of the proposal.

Point #6

Page 4, Notes, Public Notice,the Sierra Club disagrees with the Corps that an environmental impact statement (EIS) is not needed for this permit application.  The Corps should require a study about the impacts this development will have, direct and indirect (secondary), and provide this information to the public for review and comment as required by the National Environmental Policy Act (NEPA).

An EIS is required due to the permanent, loss of a large acreage of wetlands, the presence of special aquatic sites, possible aquatic resources of national importance (ARNI) that will be destroyed or degraded by the proposal, the construction of the proposal in the 100-year floodplain, and because the proposal enables or induces additional residential and commercial development directly and indirectly in the floodplain which puts people in “harm’s way”.

Some of the ways that this proposal puts people in harm’s way include the expansion of Woodland Hills will destroy existing entranceways to Barrington Kingwood Subdivision at Cotswald Blvd. and Deer Cove Trail Subdivision; destroy an existing sidewalk that goes from the FFA facility in Deer Ridge Park north on Woodland Hills Road; destroy part of River Grove Park and potentially Deer Ridge Park; destroy forests and wetlands on Hamblen Road; connect Hamblen Road to Woodland Hills Road in an area that flooded during Hurricane Harvey; increased traffic and speed of traffic will affect residents, students, and park users and could result in more injuries, deaths, damage to property, and roadkill.  

Point #7

Page 5, National Register of Historic Places, Public Notice,the Corps should give a summary of what the “Intensive Archaeological Survey of the Kingwood Marina Residential District Project, Harris County, Texas”, dated March 2017 and “Intensive Archaeological Survey of the Proposed Kingwood Marina, Harris County, Texas” dated May 2016, found so the public knows about and can review and comment on the summary.

Point #8

Page 5, Threatened and Endangered Species, Public Notice,the Corps should require threatened and endangered species surveys for listed species. The results of these surveys should be reported to the public which should be given the opportunity to review and comment on the results.

Page 3, Current Site Conditions, Public Notice,it is of great concern that the applicant admits there are bald eagles in the project area, but “no nests were found.”  It is not only nests that are a concern for bald eagles.  The habitat of wintering and nesting bald eagles is also of concern.  It is also a concern that disturbance will occur due to these developments in potential bald eagle habitat and may keep bald eagles from nesting in the project area or on the project site.  There must be an adequate bald eagle survey, analysis, and plan conducted and prepared and is available to the public for review and comment.

Point #9

 Page 4, Public Interest Review Factors,the Public Notice is inadequate as the basis for determining the environmental impacts of this proposal and the effect that it will have on the public interest review factors in 33 CFR 320-332, regulatory programs of the Corps, and other pertinent laws, regulations, and executive orders.

Some of the public interest review factors that must be considered and are relevant are conservation, economics, aesthetics, air quality, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, and the needs and general welfare of the people.

The public interest factors analysis is very important and is separate and larger than simply reviewing the proposed dredge/fill impacts and proposed mitigation.  The Corps should prepare its analysis of public interest factors carefully when reviewing this proposal and then provide it for public review and comment.

Point #10

 Page 6, Public Hearing, Public Notice, the Sierra Club requests a public hearing about this permit application and proposal.  The Corps should contact all surrounding businesses, residential areas (like Trailwood Village Subdivision, Kingwood Lakes Village Subdivision, Clubs of Kingwood, Barrington Subdivision, and Kingwood Lakes South Community Association), churches (like Kingwood United Methodist Church), schools, parks (like Deer Ridge Park, River Grove Park, Boy Scout Reserve), and other entities that may be affected by the proposal, up or downstream, so that the local public can find out about, understand, and attend this public hearing and provide public comments.

Conclusion

Due to the concerns raised in this comment letter the Sierra Club requests that the Corps deny this permit application.  The Sierra Club appreciates this opportunity to provide public comment on this proposed permit application.  Thank you.

Sincerely,
Brandt Mannchen
Chair, Forestry Subcommittee
Houston Regional Group of the Sierra Club
(Be sure to include your contact info;
I have omitted it here to protect privacy.)