2021 Report Card on Texas Flood-Issue Legislation To Date

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With the Texas legislature days away from adjournment, it’s time to see how flood-related legislation fared. Out of the 20 bills listed below, one has a chance of turning into law.

Still Has a Chance

HB 531 – Floodplain Disclosure

This bill by Armando Walle of Houston relates to floodplain disclosure for leased dwellings. It has passed both the House and Senate and is awaiting the Governor’s signature. Several pieces of similar legislation did not fare as well. See below.

Better Luck Next Session!

HB 2525 – Lake Houston Dredging District

Dan Huberty’s proposed legislation to establish a Lake Houston Dredging and Maintenance District passed the house. But the it’s sitting in the Local Government Committee in the senate chaired by Senator Paul Bettencourt. So is the identical companion bill filed by Senator Brandon Creighton SB 1982. It’s been sitting in the same committee since April 8. Someone doesn’t want this to see the light of day. A group called WaterUsersCoalition.org is desperately trying to kill both bills with misinformation. The web site characterizes the bill as one that only benefits Kingwood and Atascocita drainage. It would have certainly done that, but it would also have helped maintain and restore the capacity of Lake Houston. The website also says it would be funded by taxes which the bill(s) explicitly prohibit. And implies that increasing lake capacity would somehow hamper the conversion from groundwater to surface water.

HB 4478 – Sand Mine Reclamation

Another bill by Huberty was referred to the House Natural Resources committee on 3/29. Nothing has happened to it since. The bill would have required two things: reclamation of sand mines at the end of mining and a performance bond to ensure they met certain criteria, such as the removal of all equipment. Died in committee.

Abandoned dredge at abandoned Texas Concrete Sand and Gravel mine in Plum Grove. The TCEQ has deemed this mine reclaimed; it’s now off their radar.
HB 767 – Sand Mining Best Practices

Yet another piece of legislation by Huberty – would have established best management practices for sand mines. The House Environmental Regulation Committee left the bill pending in committee, just as they did in the 2019 legislative session. TACA wins again. We’ll have to live with worst practices for at least another two years.

HB 4341 – Sand Mine Regulatory Responsibility

This bill By Kyle Beiderman of Fredericksburg – was sent to the House Environmental Regulation Committee on 3/29. They didn’t even hold a hearing on it. The bill would have transferred responsibility for regulating sand mines from the TCEQ to the Railroad Commission of Texas.

HB 2422 – Sand Mine Locations

A piece of proposed legislation by Erin Zwiener of Kyle, Tx. would have allowed County Commissioners (in counties with populations greater than 500,000) to prohibit sand mining or the expansion of sand mines when they are too close to homes, hospitals, churches and certain other facilities. The Environmental Regulation Committee has bottled that bill up since 3/16. TACA wins again.

HB 1912 – Sand Mine Nuisances

Proposed legislation by Terry Wilson of Georgetown would have stiffened regulations relating to nuisances associated with aggregate production operations such as blasting, noise, air quality and more. The Environmental Regulation Committee has left it pending since 4/19. TACA wins again.

HB 3116 – SJRA Board Appointments

Will Metcalf of Conroe introduced two bills to change the composition of the San Jacinto River Authority Board. This one, the first, would have reduced the number of directors on the SJRA board from 7 to 6 and changed the way they are appointed. The change would have guaranteed a majority of directors from Montgomery County. The House referred the bill to its Natural Resources Committee on 3/19. Nothing has happened to it since then.

HB 4575 – SJRA Board Elections

The second Metcalf bill would have made the SJRA board elected, rather than appointed by the government. But there was a hitch. It would have denied representation to downstream residents. Hasn’t gone anywhere since April 8.

SB 314 – Disclosure of Flood Zones for Leased Property

This piece of legislation by Joan Huffman of Houston got referred to the Business and Commerce committee on 3/9. Nothing has happened since. The bill would have mandated disclosure of flood risk for leased property in a flood zone. A similar bill passed in the last session for property for sale. However, the Committee has taken no action on the leasing bill since 3/9.

HB 1059 – Disclosure of Flood Zones on Vacant Land for Sale

Another flood plain disclosure bill by Phil Stephenson of Rosenberg would have required sellers of vacant lots smaller than 15 acres to disclose whether any portion of the lot was in a flood plain. The bill would also have let buyers recover damages if the property flooded within five years and the seller failed to disclose the flood plain. This bill made it out of the Business and Industry Committee. However, the Calendar Committee never brought it up for a vote on the House floor since 4/15. It’s companion bill in the Senate – SB 461 by Kolkhorst – also stalled.

HB 1956 – Climate Change Planning

Michelle Beckley of Carrollton introduced legislation that would have required certain state agencies to consider the impact of climate changes in their strategic plans. It got referred to the State Affairs Committee on 3/15. Ba Dump. Same for similar bills like HB 1949, SB306, HB 2017, HB 3246, and HB4178.

HB 655 – Feasibility Study for Statewide Disaster Alert System

This bill Richard Raymond of Laredo called for studying the feasibility, efficiency and benefits of setting up a statewide disaster alert system. It went to the Homeland Security and Public Safety Committee on 3/1. No action since.

SB 859 – Continuation of Electronic Meetings after COVID for Regional Flood Planning Groups

A common-sense bill by Charles Perry of Lubbock would have let Regional Flood Planning Groups continue to hold meetings via telephone conference call and videoconference after emergency COVID restrictions expire. The rationale: these groups are staffed by volunteers, many of whom have to drive across several counties to get to meetings. That can take all day in West Texas. It was voted out of the Senate Business and Commerce Committee before it ran out of gas. A companion bill, HB 2103, passed the House, but also stalled in the Senate.

Seems like a lot of good ideas were left on the table.

Posted by Bob Rehak on 5/24/2021 based on research by John Barr

1364 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.

Environmental Regulation Committee Taking Public Comments on Three APO Bills

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The Environmental Regulation Committee of the Texas House of Representatives will hear public testimony on three bills concerning sand mines/aggregate production operations on Monday, April 19, 2021. You don’t need to go all the way to Austin to testify. You can leave your comments on the Committee’s website. Just remember, there’s a 5000 character limit. See more about the bills below.

HB 767: Best Practices for Sand Mines

HB767 by Dan Huberty would require the TCEQ to establish best practices for sand mines and publish them on its website. Right now, Texas is one of the few states that doesn’t have a codified set of best practices. Granted, though, some are embodied in the terms of permits and federal laws. But the public never sees these. And many best practices common in other states are notably absent in Texas. For instance, there are no setbacks specified for sand mines from rivers in Texas. Companies can mine right up to the edge of rivers…in the floodway. Then when floods happen, dikes collapse and sediment gets washed downstream.

The Bayou Land Conservancy submitted this letter in support of HB 767. Two key points:

  • Best management practices (BMPs) would provide guidance for the industry and expectations for the community about how these facilities will be managed and the legacy they will leave.
  • BMPs would aid stakeholders in identifying which companies are interested in working with and protecting nearby communities.

HB 767 is scheduled for public hearings in Environmental Regulation on 4/19/2021. To learn more about the bill, click here. To support the bill, go to this web page and leave your comments. It’s quick and easy.

HB 291: Reclamation Plans and Performance Bonds for Sand Mines

HB 291 by Representatives Murr and Wilson calls for sand mines to file a reclamation plan before they get a permit to start mining, estimate the cost of the reclamation, and post a performance bond in that amount. Every time the mine expands, the owners would have to update the plan. The purpose of this bill is to ensure that miners simply don’t walk away from mines after the last ounce of profit is milked from them. That’s what many do now. The East and West Forks of the San Jacinto are littered with abandoned mines and rusting equipment. This bill also specifies the types of things that would have to go into the reclamation plan. It is scheduled for a hearing in the Environmental Regulation committee on 4/19/2021. To learn more about the bill, click here.
To support the bill, go to this web page and leave your comments.

HB 1912: Limiting Sand Mine Pollution

HB 1912 by Wilson would limit air-, light-, noise-, and water pollution; and soil erosion. It also sets limits, mandates monitoring equipment, and requires financial assurance for handling violations. Aggregate production operations throughout the state have had these problems. To learn more about the bill, click here. To support the bill, go to this web page and leave your comments.

Video Broadcast of Meeting

A live video broadcast of this hearing will be available here: https://house.texas.gov/video-audio/. The meeting starts at 2 p.m. or after adjournment of the House for the day.

Texas residents who wish to electronically submit comments related to this and other bills without testifying in person can do so until the hearing is adjourned by visiting: https://comments.house.texas.gov/home?c=c260.

One Sneaky, Bad Bill to Fight

Representative Harris of Hillsboro, TX has introduced HB 2144. Keep this on your radar. It takes away a private citizen’s right to sue for nuisance. For instance, if a sand mine were spewing silicon dust on your property, polluting your water, or flooding your home, you would have to convince the state to sue them. Good luck with that.

“Only the state or a political subdivision of this state may bring a public nuisance action…”

HB2144

This bill has already passed out of committee. So the only way to fight it now is with amendments or on the house floor when it comes up for a vote. I suggest you contact your representatives and try to get them to fight this bill. To learn more about the bill, click here. It does not have a companion bill in the senate but, if approved in the House, would go there for consideration.

Today, nuisance is the most frequently pled theory of liability under common law tort for environmental litigation. Under public nuisance, a plaintiff, either a government entity or a private individual, may bring suit if there are damages, interference, or inconvenience to the health or safety of the public at large. 

HB 2144 would restrict public nuisance law only to cases where a person causes an unlawful condition, namely “an ongoing circumstance or effect … that is expressly prohibited by the laws of [Texas].” Further, the bill specifically provides that persons or entities engaged in “lawful manufacturing, distributing, selling, advertising, or promoting a lawful product” cannot be a public nuisance.  This ignores the fact that people and property can be seriously harmed even though no statute or regulation is violated – that’s one of the reasons we have common law causes like nuisance to begin with!  HB 2144 would remove the ability for the government or individuals to stop such harms from occurring or to seek redress.

Posted by Bob Rehak on 4/15/2021

1326 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.

How to Support House Bill 2525 and Additional Dredging for Lake Houston Area

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State Representative Dan Huberty has introduced House Bill 2525. It would create a Lake Houston Dredging and Maintenance District within Harris County. That would include the headwaters of the lake on the East and West Forks of the San Jacinto. The District would have the power to remove sediment and debris on an ongoing basis in perpetuity.

Rogers Gully Mouth Bar
Rogers Gully Mouth Bar. Many ditches and streams around the lake are blocked like this one.

The District would NOT have the power to levy taxes or condemn land, but it COULD enter into interlocal agreements with political subdivisions and corporate entities to help cover expenses and repayment of bonds. The Mayor of Houston and the Harris County Judge would appoint a board to govern the District.

House Bill 2525 would take effect immediately if receives a two-thirds vote of both houses. Otherwise, it would take effect on September 1, 2021 if signed into law by the governor.

Brandon Creighton has filed an identical companion bill in the Senate, SB 1892. Neither bill has passed through committees yet.

Public Hearing Scheduled for Tomorrow Morning

The House Natural Resources Committee will hold public hearings on HB 2525 Tuesday morning, 4/13/2021. You can support the bill three ways at this point:

  • Testify in person
  • Testify via Zoom.
  • Submit a public comment via the House website.

For in-person witness registration, see: https://mytxlegis.capitol.texas.gov/HWRSPublic/About.aspx. Instructions related to public access to the meeting location, and health and safety protocols for attending this meeting are available at: https://house.texas.gov/committees/public-access-house-committee-meetings/

A live video broadcast of this hearing will be available at: https://house.texas.gov/video-audio/

Texas residents who wish to electronically submit comments related to agenda items on this notice without testifying in person can do so until the hearing is adjourned. See: https://comments.house.texas.gov/home?c=c390

Huberty’s office is not sure what order the committee will call the bills up. But the hearing will begin at 8 AM. https://capitol.texas.gov/tlodocs/87R/schedules/html/C3902021041308001.htm

The House convenes at 10 AM and the committee will reconvene upon adjournment. “If we do not get to the bill in those first two hours,” said Casey Christman, Huberty’s assistant, “it may be last afternoon before it gets heard. It could end up being a very lengthy day.”

Key Points to Make

All things considered, I chose to register my support via the house website. It could not have been easier and only took a couple minutes. The site is extremely well organized. The key points I made included:

  • Maintenance on the lake has been deferred for decades.
  • The removal of accumulated sediment will reduce flooding and increase lake capacity.
  • This will support the economic vitality of the region.
Even though most of the above-water portion of the West Fork Mouth Bar have been removed by now, this chart of depth soundings shows that an underwater plateau still exists that can force flood waters up and out of the channel.

Please support House Bill 2525. To learn more about sediment and debris buildups around the lake, see these posts:

Posted by Bob Rehak on 3/12/2021

1322 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.

New Legislation that Could Affect Lake Houston Area Flood Control

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New legislation has been introduced in the 87th Texas Legislature that could affect the future of Lake Houston Area flood control. Here is a list that shows the current status of key bills. It includes a high-level summary, plus links to the text of the bills, and their authors. If you wish to testify on a bill, contact the author or the committee hearing it. Below is a brief summary of the most important (in my opinion) bills.

HB 2525: Perpetual Dredging for Lake Houston Area

Dan Huberty’s bill would create a dredging and maintenance district for the Lake Houston Area. It would dredge perpetually to reduce flood risk and help maintain the capacity of Lake Houston. The Natural Resources Committee will hold a public hearing on 4/13/2021.

HB 4478: Sand Mine Reclamation

Dan Huberty’s bill requires restoration plans for sand mining operations in the San Jacinto watershed. It lays out the requirements for such plans and also requires filing a performance bond to cover the cost of reclamation when mining is complete. If the mine abandons the property without restoring it, the bond would be enough to cover the cost of the work. It’s currently in the Natural Resources Committee. A hearing has not yet been scheduled.

HB 767: Best Practices for Sand Mines

HB 767, another Huberty bill, would require the Texas Commission on Environmental Quality to develop and publish best management practices for sand mining consistent with all applicable environmental laws and regulations. The bill has been referred to Environmental Regulation, but a hearing is not yet scheduled.

HB 4341: Transfer of Regulatory Responsibility for Sand Mines

Kyle Biedermann introduced a bill to transfer regulatory responsibility for sand mines from the TCEQ to the Railroad Commission of Texas. The Environmental Affairs Committee has not yet scheduled a hearing.

HB 2422: Regulation of Sand Mine Locations

HB 2422 by Erin Zwiener would allow county commissioners with populations greater than 500,000 to regulate the location of sand mines in certain circumstances based on proximity to residences, schools, places of worship, hospitals, and land platted for residential development.

HB 1912: Air and Water Quality Permit Requirements for Concrete Plants

Terry Wilson’s HB 1912 would raise the bar for Concrete Plants attempting to get air and water quality permits. It would require them to establish monitoring equipment. It would also affect blasting, lighting, noise generation from trucks, and restoration among other things. It’s in Environmental Regulations, but no hearing has yet been scheduled.

HB 3116: Nominations for SJRA Board

Will Metcalf’s HB 3116 would allow Montgomery County commissioners to nominate board members for the SJRA which the Governor could then accept or reject. It also sets the term for directors at 6 years and changes the number of board members from 7 to 6, contrary to the state constitution. It’s in the Natural Resources committee but has not yet been scheduled for a hearing.

CSHB 4575: Election of SJRA Board

Another Metcalf bill, HB 4575 would allo election of SJRA officers. Sounds democratic, until you realize that only those within the District would vote and Harris County is defined elsewhere as outside the district. We have all seen, as with the Lone Star Groundwater Conservation District, how private entities can easily take over a board in low interest, low turnout elections and then act in a way contrary to public interest (as in voting to virtually double groundwater pumping and ignore subsidence).

CSHB 3801: Handling of Unreasonable Desired Future Conditions for Groundwater

CSHB 3801 is a committee substitute bill. It defines how the Texas Water Development Board must handle petitions protesting “unreasonable” desired future conditions (DFCs) in groundwater management plans. The language in this bill is opaque. Even the analysis is.

SB 314: Notification of Flood History to Renters

SB 314 by Joan Huffman mandates that people renting properties would receive the same notification as people buying properties. The bill affects properties in the floodway, 100-year floodplain, 500-year floodplain, and any property that has flooded within the previous 5 years. If the tenant is not given proper notice, tenant may recover damages, one month’s rent, and attorney fees. Referred to Business & Commerce committee but no hearings set yet.

HB 531: Disclosure of Flood History and Floodplain Status to Renters

HB 531 by Armando Walle is similar to SB 314, but has already passed the House. It does not include the 500-year floodplain, but does include flooding from streets and ditches. This is the bill to watch. It has considerable traction and six co-authors.

HB 1059: Disclosure of Floodplain Status for Properties under 15 Acres

HB 1059 by Phil Stephenson requires sellers to disclose whether any part of a property smaller than 15-acres is in a flood plain. Bill was reported favorably as substituted but substitute has not yet been posted. SB 461 by Lois Kolkhorst is an identical companion bill in the senate.

HB 1949: Requires State Agencies to Reflect Climate Changes in Strategic Plans

Jasmine Crockett’s HB1949 would require certain state agencies such as TCEQ and TWDB to reflect weather and climate changes in their strategic plans. SB306 is the companion bill in the Senate. The State Affairs committee has not yet set a date for public hearings. Other representatives filed similar or identical bills, too: Michelle Beckley (HB 1956), Eckhardt (SB 306), Thierry (HB 2017), Reynolds (HB 3246), and Fierro (HB 4178).

HB 1681: Prohibiting Construction of Assisted Living Facilities in a 500-year Floodplain

Sam Harless’ HB 1681 prohibits construction of assisted living facilities in a 500-year floodplain. Human Services will hear public testimony on 4/13.

SB 865: Study of Statewide Disaster Alert System

Brandon Creighton’s SB 865 calls for a study on the efficacy of existing mass notification deployments by local governmental entities throughout this state and the feasibility of establishing a statewide disaster alert system. It would also study how to overcome barriers such as power outages in disasters. The Business and Commerce committee approved it unanimously, but the Senate has not yet voted on the bill. HB 655 is the companion bill.

SB 859: Continuing Virtual Meetings for Water Planning Groups

SB 859 by Charles Perry would allow Regional Flood Planning Groups to continue the practice of holding meetings virtually after the Covid crisis passes. The Businesss and Commerce committee approved it unanimously and it is headed for a vote on the uncontested calendar. Volunteers staff regional flood planning groups and the regions can span several counties. This places an undue travel burden on volunteers who already have a heavy workload. HB 2103 is a companion bill.

Posted by Bob Rehak on 4/11/2021

1321 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.

Proposed New Law Mandates Flooding Disclosure to Renters

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HB531 passed the Texas House of Representatives today. 119 voted Yea, 27 Nay and 2 voted present. Before it can become law, it still needs to pass the Senate and then the Governor must sign it.

Background and Purpose

Some feel that renters in areas susceptible to flooding may be unaware of that risk. Although state law requires a person selling real property to disclose to prospective homeowners whether the property is located in a floodplain, there is no similar requirement with respect to renters. H.B. 531 seeks to ensure that tenants are equipped with the information necessary to make informed decisions.

It requires a landlord to provide tenant with a written notice indicating whether the landlord is aware that the leased dwelling is located in a 100-year floodplain. It would also require the landlord to disclose whether the dwelling sustained flood damage in the preceding five-year period.

Some companies buy up homes on the cheap after floods and then rent them out to unsuspecting families. In North Kingwood Forest, I interviewed a family last year that fell into that category. The home flooded after May 7th in 2019, was fixed up, and quickly rented. Then the unsuspecting family promptly flooded during Imelda. Only then did the family learn of the properties history.

A first responder during Harvey leased one of these homes next to Woodridge Village in North Kingwood Forest before Imelda. Here’s what the street looked like after Imelda. The cycle continued. HB 531 is designed to help renters in situations like these.

Provisions

H.B. 531 amends the Property Code to require the landlord of a residential dwelling to provide to a tenant a written notice stating whether the landlord is or is not aware that the dwelling is located in a 100-year floodplain. The bill sets out additional language related to informing the tenant of the dwelling’s potential susceptibility to flooding and the advisability of flood insurance.

However, if the landlord of a dwelling in a 100-year floodplain has raised the building above the 100-year floodplain in accordance with federal regulations, the landlord is then not required to disclose that the dwelling is located in the floodplain. The bill requires a landlord who knows that flooding has damaged any portion of a dwelling at least once during the five-year period immediately preceding the effective date of a lease to provide written notice to the tenant.

An amendment to H.B. 531 requires each applicable flood notice to be included in a separate written document given to a tenant before execution of a lease.

Lease Termination Rights

The bill lets a tenant terminate a lease if a landlord violates notice requirements and the tenant suffers a substantial loss or damage to the tenant’s personal property as a result of flooding. The tenant to give a written notice of termination to the landlord not later than the 30th day after the date the loss or damage occurred. The bill makes termination effective when the tenant surrenders possession of the dwelling.

It also requires the landlord, not later than the 30th day after the effective date of the termination, to refund to the tenant all rent or other amounts paid in advance under the lease. HB 531’s provisions do not affect a tenant’s liability for delinquent, unpaid rent or other sums owed to the landlord before the date the tenant terminated the lease.

If approved by the Senate and Governor, the bill would become effective on January 1, 2022.

For the full text of the bill as it currently stands, click here.

Posted by Bob Rehak on 4/2/2021

1312 Days after Hurricane Harvey and 560 since Imelda

Support Creation of Dredging District to Reduce Floods, Improve Lake Capacity

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In the 2021 Legislation session, State Rep. Dan Huberty introduced HB2525, a bill to create a Dredging and Maintenance District for Lake Houston. Senator Brandon Creighton introduced an identical companion bill in the senate, SB1892. It deserves the support of everyone in the Houston region who depends on the lake for water as well as those whose homes and businesses flooded during Harvey.

Why We Need Perpetual Maintenance Dredging

For those who may not remember, during Harvey enough sand and silt came down the San Jacinto West Fork to block the river by 90% according to the US Army Corps of Engineers.

South of the Kingwood Country Club’s Island Course, Hurricane Harvey deposited several feet of sand that reduced the carrying capacity of the West Fork by 90%, according to the Army Corps.

Massive sediment and tree deposits dammed the river at the Union Pacific Railroad Bridge, south of the Kingwood County Club, West Lake Houston Parkway and Kings Point. The blockages contributed to the flooding of 16,000 homes and 3,300 businesses.

Union Pacific Railroad Bridge over West Fork after Harvey had turned into a “beaver dam” because of deadfall washed downstream and caught in the supports.
After Harvey, sand deposits at the West Lake Houston Parkway bridge reached the tree tops.
West Fork Mouth Bar immediately after Harvey virtually blocked the river between Kings Point and Atascocita Point (top right).

Two years later, Tropical Storm Imelda made similar deposits on the East Fork where thousands of additional homes flooded.

Wherever moving bodies of water meet standing bodies, the current decelerates and sediment tends to drop out of suspension. You can see the same phenomenon where smaller streams and channels enter the lake.

Brown & Root Report, 2000
Rogers Gully mouth bar in Atascocita

History of Disputes with FEMA, Corps Over Deferred Maintenance

After Harvey, leaders in the Humble/Kingwood Area fought with the Corps to remove the biggest of the blockages – the West Fork Mouth Bar. The Corps fought back.

The Corps and FEMA believed the massive mouth bar had been growing for years and that it resulted from deferred maintenance.

There was some truth to that. That reach of the West Fork had never been dredged at least in the previous 40 years. The ensuing debate lasted more than a year.

That’s why, shortly after the Corps started its Emergency Dredging program in 2018, it emphasized the need for maintenance dredging to a) avoid such disputes and b) keep problems at a subacute level.

Two Years Later, FEMA/Corps Agreed to Partial Mouth Bar Dredging

Then, in 2019, the City of Houston commissioned Tetra Tech to harvest core samples from the bar. The samples showed that most sand and silt was recently deposited. FEMA later relented and agreed to have the Corps dredge 500,000 cubic yards from a six hundred acre area south of the mouth bar. The Corps finished that dredging in late 2019. The City continued the program with mechanical dredges in January of 2020. They’re still at it. And people are still at risk from the next big flood.

Lake Houston Has Lost 22,000 Acre Feet of Capacity

Meanwhile, Lake Houston, which supplies water to millions of people has been steadily losing capacity. In 2018, the Texas Water Development Board found the lake had lost more than 22,000 acre feet of capacity. The problems are most apparent around the edges of the lake and in its upstream reaches. Both natural streams and man-made channels have become silted in. Mouth bars on both the East and West Forks have reduced the depth of the San Jacinto to approximately 3 feet (from 25 to 30 feet), except where it has already been dredged.

Atascocita resident walking across the river in 2019 without getting his shirt wet.

This cannot continue indefinitely. Nor can we expect the federal government to pay for deferred maintenance in the future; we have been warned. If we expect help again in the future after disasters, we must be able to show what bottom depths were before the storms. And those kinds of surveys are regular parts of maintenance dredging programs.

Safety and Future at Stake

In the three and a half years since Harvey, according to boaters and residents, we have not yet been able to restore the area between Kings Point and Atascocita Point to its pre-storm depth. We haven’t even removed all of the mouth bar.

Three mechanical dredges are still trying to reduce the West Fork Mouth bar more than 15 months after they started. Photo taken 3/19/21.

We need to figure how much sediment comes downriver every year and remove at least that much with a maintenance dredging program to:

  • Stop or reduce the loss of reservoir capacity
  • Reduce the risk of flooding
  • Show good faith to FEMA, eliminate contentious arguments with regular river bottom surveys, and demonstrate how much build-up resulted from a particular disaster.

We also need to be able to quickly accelerate the program after major storms such as Harvey and Imelda.

Dredging needs to be a continuous activity because one major flood can deposit more sediment than humans can remove in years.

How You Can Help

I urge you to support HB2525. Write as many local leaders on the City, County and State levels as possible. Pay particular attention to the House Natural Resources Committee where the bill is pending hearings right now. State Senator Brandon Creighton has filed an identical companion bill, SB1892, which has been referred to the Local Government Committee.

Posted by Bob Rehak on 3/28/2021

1307 Days after Hurricane Harvey

Rep. Metcalf Introduces Bills to Deny Downstream Representation on SJRA Board

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Texas State Representative Will Metcalf from Conroe has introduced two bills in the 87th Legislature that would affect the composition of the San Jacinto River Authority (SJRA) Board. The two bills have major differences. One calls for the election of Board members. In case that fails, the other recommends how the Governor should appoint directors. Both bills, however, introduce an upstream bias in the selection of board members at the expense of downstream residents.

Excluding Harris County Voters

HB4575 would create a Board of seven directors who must be legal voters in the State of Texas. It does not specify who gets to vote in the election. It simply says voters in the District will elect Board members at large. But the boundaries of “the District” are not defined in HB4575. They are, however, defined in Section 5 of the SJRA enabling legislation to EXCLUDE Harris County. So far, no other sponsors have signed onto the bill.

Stacking Deck in Favor of MoCo

HB3116 relates to recommendations for the appointment of SJRA directors. It calls for the Governor to appoint six directors, all of whom must be Texas voters and property owners. Four of the six must reside in Montgomery County, the only county wholly encompassed by the District defined in the SJRA boundaries.

The Commissioners Court of Montgomery County would get to recommend two directors to the governor. Other counties in the watershed could each recommend one. But, again, four – a two-thirds majority – would have to reside in Montgomery County.

The SJRA board currently has seven members, so this bill would reduce that number by one and also increase the possibility of tie votes. That could help stymie approval of policies, such as lowering Lake Conroe seasonally or fighting subsidence. As of this date, no other sponsors have signed onto this bill either. It was referred to the Natural Resources committee yesterday.

Could Impact Lake-Lowering Policy

Metcalf’s filing of these bills comes hot on the heels of a contentious debate last year about seasonal lowering of Lake Conroe to provide a buffer against flooding in downstream communities. The hotly contested issue drew hundreds of Lake Conroe residents to a board meeting that had to be held in the Montgomery County Convention Center to accommodate the crowd. Protestors complained that it would ruin recreation and the tax base of Montgomery County.

In the end, the appointed board voted to continue its lake lowering policy. The policy calls for lowering the lake from 201 feet to 200 during April and May, then again in August. During September, the peak of hurricane season, the SJRA would lower Lake Conroe an additional half foot to 199.5. The City of Houston owns two-thirds of the water in the lake, and all releases come from the City’s share, and only at the City’s request. SJRA staff coordinate with City staff on the details and timing of all releases. And if the level of Lake Conroe has already dropped to the target elevation due to natural evaporation, no additional releases are called for.

The SJRA board first adopted this policy after Governor Gregg Abbott visited the flood-ravaged Lake Houston Area in 2018. That year, he also appointed two downstream residents who flooded during Harvey, Kaaren Cambio and Mark Micheletti, to the SJRA board.

Kingwood Greens Evacuation During Harvey by Jay Muscat
Photo by Jay Muscat of the Kingwood Greens Evacuation during Harvey after the SJRA release from Lake Conroe.

If Metcalf’s bills gain traction, the bills could potentially undermine the lake-lowering policy. The SJRA Board extended it for three years starting last year. That would give the City of Houston time to add more gates to the Lake Houston dam. FEMA gave the City three years to complete the gates when the project clock started ticking on April 8th of last year. The City is still in the preliminary engineering phase of that project, and trying to prove up the benefit/cost ratio for FEMA.

Could Also Impact Groundwater and Subsidence Debates

Metcalf’s bills could also affect the subsidence debate between upstream and downstream interests.

Shortly after the Lone Star Groundwater Conservation District (LSGCD) first elected its board in 2018, the LSGCD board began advocating for higher groundwater pumping. It has also stonewalled any mention of subsidence in the desired future conditions for Montgomery County in Groundwater Management Area 14.

Private groundwater providers, such as Quadvest, heavily backed a slate of candidates for the LSGCD Board in 2018. Their candidates won based on the promise to “restore affordable water,” but residents report that water rates have not gone down.

The SJRA has opposed the unlimited pumping of groundwater. Electing the SJRA board, too, opens it up to the same kind of shadowy influence exerted by Quadvest prior to the 2018 election. If Quadvest is successful again, Quadvest could eliminate its primary opposition on the subsidence issue. The residents of northern Harris and southern Montgomery Counties would then potentially face increased subsidence. And subsidence can damage foundations, walls, ceilings, cabinets, doors, driveways, streets, pipelines, and more.

As the map below shows, subsidence could also tilt Lake Houston toward the Harris/Montgomery County line by two feet relative to the amount of subsidence at the Lake Houston Dam. That could increase flood risk for people living in the upstream reaches of the lake.

Drawing down aquifers in MoCo by 30% (leaving 70%) was supposed to have produced no more than 1 foot of subsidence, but models showed it could produce 3 feet in the Kingwood and Huffman areas of Harris County.
The same amount of pumping produced 3.25 feet of subsidence in southern MoCo.

Neither Elections, Nor Appointments, Should Exclude Affected Residents

I normally don’t oppose elected boards. But I also don’t want to return to the days just before Harvey when the SJRA board represented only upstream interests and downstream areas flooded disastrously.

If the SJRA board is elected, downstream residents in Harris County should be able to vote on the board members. Metcalf’s bills have the appearance of populism, but they strive to stack the deck against downstream residents. Both are wrong.

Everyone who lives and works along the San Jacinto should get to vote on the composition of the SJRA Board if board members will be elected.

Posted by Bob Rehak on 3/20/2021

1299 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.

Eight Bills Introduced in Texas Legislature This Year Affect Sand Mines

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Yesterday was the last day for lawmakers to file bills for the 87th Texas legislative session. Eight bills have been introduced to curb abuses of aggregate production operations, which include sand mines. Five address reclamation of mines in various ways.

Huberty’s HB4478: Reclamation and Performance Bonds

Dan Huberty from the Lake Houston Area introduced HB4478 which addresses abandonment of sand mines. Many miners simply walk away from mines leaving abandoned, rusting equipment in place and dangerous conditions. Huberty’s bill would require mines to file a reclamation plan before they start mining and also post a bond ensuring they actually execute the plan. Currently, mines are required to file a plan, but there is no requirement in Texas to execute it. Miners can simply walk away from mines after they extract the last ounce of sand. That can leave scars on the landscape, degrade water quality, and threaten public safety.

Huberty’s HB767: Best Practices

Huberty also introduced HB767, a bill that would require the Texas Commission on Environmental Quality to establish and publish best management practices for sand mining. However, it does not require sand mines to follow the practices. While that’s disappointing, it could bring heat to operations that don’t follow the guidelines.

Biederman’s HB4341: Changes Responsibility for Oversight

Representative Kyle Biederman from Fredericksburg introduced HB4341, a bill that would transfer regulation of aggregate production operations from the Texas Commission on Environmental Quality (TCEQ) to the Texas Railroad Commission (TRRC). The bill gives the Railroad Commission the right to conduct unannounced inspections to ensure compliance with water and air quality regulations. Biederman’s bill also mandates reclamation of mines, but includes more specifics than Huberty’s. Finally, it provides criminal penalties for people who knowingly and willfully violate conditions of their permits. The big news: transfer of oversight responsibility from the TCEQ to TRRC. If it passes, it will be a resounding vote of “no confidence” in the job that the TCEQ has been doing in regulating sand mines.

Zwiener’s HB2422: Limiting Location of Mines

Representative Erin Zwiener from Kyle introduced HB2422. Her bill applies to counties with a population of 500,000 or more. It would allow county commissioners to prohibit the construction or expansion of an aggregate production operation at a location less than one mile from a residence, school, place of worship, hospital, or land platted for residential development. The bill would also allow commissioners to establish conditions for the construction or expansion of mines elsewhere in the county.

Murr’s HB291: Reclamation and Performance Bonds

Representative Andrew Murr from Kerrville introduced HB291. It also focuses on reclamation of mines. It would require the grading of banks, revegetation, and removal of equipment upon completion of mining. The bill would also require operators to reclaim mines in stages as extraction activities on different parts cease. It would give miners a deadline for reclamation, too: six months. Finally, it would require a performance bond equal to $2,500 for each acre affected by extraction activities. Upon completion of reclamation activities, the TCEQ would release the performance bond. Cities and counties would have the right to waive the reclamation requirement if reclamation conflicts with proposed future uses of the land.

Abandoned dredge left at abandoned Texas Concrete Sand & Gravel Mine in Plum Grove on San Jacinto East Fork. Photographed 3/3/2021

Guillen’s HB1544: APO Taxation

Representative Ryan Guillen from Rio Grande City introduced HB1544. It addresses the tax classification of land used for sand mining. The language is confusing and an analysis of the bill has not yet been submitted. However, it appears to state that sand mine, once it meets requirements for reclamation, may revert to a property tax rate associated with open space, such as agriculture. The bill lays out some unique requirements for reclamation not discussed in the other bills here. While this seems to give sand miners a positive incentive to restore land, I’m not sure how much. In Montgomery County, the tax appraiser routinely grants ag exemptions to land used for sand mining.

Wilson/Schwertner’s HB1912/SB1209: Permit Requirements

HB1912 filed by Representative Terry Wilson of Georgetown establishes additional permit requirements for aggregate production operations. They affect air quality, light pollution, noise, blasting, dust, and other operational issues identified by the House Interim Committee on APOs back in January.

State Senator Charles Schwertner from Bryan introduced SB1209. It is an identical companion bill to HB1912. Companion bills increase the chance of passage by broadening the base of support in both houses.

During the 86th Legislature in 2019, TACA beat back all reasonable attempts to regulate sand mining. Let’s hope for the sake of everyone’s health and property values that this session has more success. I will keep you posted.

Posted by Bob Rehak on 3/13/2021

1292 Days since Hurricane Harvey

House Committee Releases Report on Sand Mining

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A House Interim Committee on Aggregate Production Operations (APOs, which include sand mining) just released a 77-page report focusing on the Hill Country and San Jacinto River Basin. The report validates many of the concerns ReduceFlooding.com has raised about sand mining for years.

One of multiple breaches at the Triple PG mine in Porter left open for months until the Attorney General sued the mine.

Purpose: To Balance Priorities While Addressing Concerns

Texas House Speaker Dennis Bonnen created the committee to help balance public protection, regulation and economic growth. Bonnen tasked the Committee with reviewing complaints about APOs and making recommendations to the 87th Texas Legislature. Issues include:

  1. Nuisance issues relating to noise and light
  2. Transportation safety and road repairs
  3. Air quality
  4. Blasting
  5. Reclamation
  6. Distance from adjoining properties
  7. Disruption of groundwater
  8. Water quality
  9. Sedimentation and flooding
  10. Municipal ordinances.

The report begins with a description of the balancing act regulators face. Sand and gravel used in concrete support economic growth. But they also impact surrounding property values, impact the health of neighbors, and lower quality of life when they cut corners and operate outside of industry best practices to lower production costs.

A number of bills in the last legislative session sought to resolve these conflicts and many, such as “best practices” will be reintroduced during the session which started this month. Pages 7-10 describe the legislation attempted in the last session.

Below, I summarize each issue listed above in order.

Noise Pollution

The main sources of noise from APOs come from the machinery used to move earth, process raw material and move product. Blasting is also a major consideration in the Hill Country.

The U.S. Mining Health and Safety Administration (MSHA) characterizes noise and one of the most pervasive health hazards in mining. Prolonged exposure to hazardous sound levels over a period of years can cause permanent, irreversible damage to hearing. Hearing loss may occur rapidly under prolonged exposure to high sound levels, or gradually when levels are lower and exposures less frequent.

Ways to reduce noise from moving equipment include use of strobes, alarms, camera systems and motion sensors that can trigger backup beepers as needed.

To mitigate noise from processing equipment, the report suggests chute liners and screens made of rubber or urethane to dampen the sound of the rock hitting the sides of the conveyors. Acoustical enclosures such as walls, berms and natural vegetation can also help protect neighbors.

APOs should monitor the noise exposure at their property line, keeping the noise level at their property line below 65 dB if the property line is within 880 yards of a residential area, school, or house of worship, and 70 dB if not.

Report Recommendation

Light Pollution

APOs create light pollution when the dust they generate scatters light and creates haze. Those that operate at night may require light for safety that keeps neighbors up.

APOs should be held to IDA and IES standards for outdoor industrial lighting, and fined when they don’t.

Report Recommendation

These standards provide operator safety yet shield neighbors from the most annoying effects of light pollution.

Transportation

The high volume of heavy trucks used to move product creates traffic safety issues near APOs and damages roads. TxDOT allows APOs to build 90-degree driveways. These are less expensive, but more dangerous than acceleration and deceleration lanes which provide massive safety benefits.

Dust and small rocks coming off of trucks cause windshield damage and obscure vision of nearby drivers. Placement of roadway bumps leading up to acceleration lanes would help shake off the dust and smaller rocks from the trucks before they make their way onto the highway.

Studies have also shown that the level of damage to the integrity of roads by heavy commercial vehicles far outpaces the funding they contribute through gas taxes. Such vehicles pay $.03 per mile, but cost $.26 per mile.

Recommendations:

  • Change TxDOT protocols to allow for an agreed upon change to a driveway should traffic conditions change.
  • Require that new APOs have enough right of way purchased to construct acceleration or decelerations lanes.
  • Commission a study to establish a Pricing Model for Pavement

Air Quality

Suffice it to say that the health risks of breathing APO dust are voluminous.

Short-term exposure can result in coughing, shortness of breath, tightness in the chest and irritation of the eyes.

Long-term exposure can result in reduced lung function, and respiratory diseases such as asthma, chronic obstructive pulmonary disease (COPD), diabetes, emphysema, impairment of brain development, low birth weight, lung cancer, stroke, aggravation of existing lung disease, and death.

OSHA, MSHA and other agencies responsible for worker health continue to reduce allowable exposure levels for labor; these same reduced exposure levels should be applied to the general population as well, says the report.

Testimony from those living near APOs who have been affected by the decline in air quality demonstrates that regular regional air-quality monitoring is insufficient. So, TCEQ does not know what the actual, real-time particulate concentrations are in the air near APOs.

Recommendations:
  • Require APOs to set up onsite monitoring.
  • Commission a study to determine cumulative effects of adjacent mines, each outputting a compliant level.
  • Modify the TCEQ permitting process to include county commissioners, municipal authorities and others.

Blasting

This is a bigger problem in the Hill County than Houston. So I will skip it here.

Reclamation

APO’s can suddenly cease operation for a number of reasons: bankruptcy, depleted assets, decline in demand, etc. While sites can never be returned to their original condition, they CAN be restored for safe, alternative uses.

At a minimum, this means removing hazardous materials and industrial equipment, and sloping walls to avoid leaving dangerous collapses.

Recommendations:
  • Require APO to file a reclamation/restoration plan.
  • Require operators to post a Surety Bond to cover all reclamation costs in the event the operator fails to reclaim disturbed lands.
  • Address all potential future safety and environmental problems (fugitive dust, erosion, etc.) in reclamation plans.

Distance from Adjoining Property

Current regulations depend on the type of facility and the type of equipment in use. This makes regulations complex and difficult to interpret.

Recommendations:
  • Revise permits to define setbacks by the distance from the APO property line rather than the specific piece of equipment.
  • Require a setback of 880 yards for concrete batch plants.
  • Establish setback rules for all APOs that treat platted subdivisions as residential areas.

Groundwater Disruption

The committee found inconsistent groundwater conservation rules around the state. Many counties did not even have Groundwater Conservation Districts, or if they did, they could not assess the cumulative regional impact of APOs on water supply. Historic APO water use data is not readily available to the public.

Recommendations:
  • The Texas Water Development Board should complete an in-depth assessment of APO water use.
  • Study future water supply, especially for the Houston area, where sedimentation threatens Lake Houston.
  • Require APOs to recirculate groundwater to conserve groundwater resources.

Water Quality

The committee found that TCEQ regulations for APOs are less rigorous than for other types of surface mining enforced by the Railroad Commission.

APOs construct ponds based on their preferred ‘best management practice,’ often without rigorous engineering or regulatory inspection. Testimony from neighbors indicated sediment-laden discharge damaged property. TCEQ found that nearly half (42%) of APO enforcement actions (not related to registration) were due to noncompliance with water-quality rules.

Groundwater pollution by APOs is also a legitimate concern.

Recommendations:
  • Require Texas APOs to comply with requirements for Texas coal and uranium mines.
  • Improve rules and regulatory processes to provide a higher level of protection from pollution by APOs.
  • Provide more robust and frequent groundwater inspections.
  • Perform dye-trace studies to determine groundwater flow-paths in areas close to major water wells.

Sedimentation and Flooding

The committee found sand mining along the San Jacinto River to be one of the contributors of excess sedimentation. It also aggravated flooding issues in Montgomery and Harris Counties during and after Hurricane Harvey.

Also, “The result of partitioning large areas of the floodway from rising floodwaters by levees and dikes can result in increased flooding of adjacent areas. Flood-induced breaches in levees can also add to the problems of flooding and sedimentation downstream.”

Unfortunately, breaches and unauthorized discharges are sometimes left unreported and unrepaired unless citizens file reports to the TCEQ. Even when violations have been documented by the TCEQ, fines have been minimal, averaging ~$800/violation from 2013-2017. Worse, the TCEQ inspects mines only once every two years for the first six years, and then once every three years thereafter.

The committee also found that in-river mining has continued along the West Fork of the San Jacinto even though no permits have been granted by TPWD. TPWD enforcement appears to be lax. “Thus, it is likely regulations will have little or no effect on in-river mining.”

Recommendations:

Municipal Ordinances

The report found that municipalities (as opposed to counties) already have the power to require minimum buffers in Public Health and Safety requirements and nuisance abatement ordinances. The committee specifically cited the City of Houston. But much mining remains outside of municipalities. So it recommended granting authority to counties to establish setbacks between incompatible land uses and to regulate water wells to avoid possible groundwater contamination.

Lack of Industry Cooperation

This report began by acknowledging the need for balance. However, it ended by complaining about the lack of industry cooperation.

For instance, TACA claimed that pushing facilities father from where products are needed will “add a tremendous amount of cost.” When the committee tried to investigate such economic claims, TACA refused to document them. The committee then reached out to trade groups in other states to substantiate TACA’s claims. However, all those groups refused to respond or simply ignored the requests.

That led to one final recommendation. Should concerns about the potential economic consequences become substantiated by reputable data, the legislature should institute a “Best Practices Compliance Incentive Program.”

It would require TCEQ to certify that all APOs trying to do business with the state comply with industry best practices.

To read the entire report, click here.

Posted by Bob Rehak on 1/26/2021

1246 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.

Action Alert: Aggregate Production Testimony Needed

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Deadline 5pm today, Friday, 9/25: We need you!

Please sign up to speak at an ONLINE/VIRTUAL town hall meeting about sand mines and/or other aggregate production operations (APOs). The meeting will be Thursday, 10/1 for the House Interim Committee on Aggregate Production Operations. Please send an email to both jeff.frazier_hc@house.texas.gov and jeff.frazier@house.texas.gov stating your name, contact info, and your request to speak at the 10/1 town hall.

Probably not everyone will be called on to speak, but we want the committee to know that this affects vast numbers of people. It’s CRITICAL to communicate how many of us are negatively affected by existing and planned sand mines, quarries, concrete plants, and other APOs.

All of the House Interim Committee members will be present and this will be similar to speaking in front of the committee at the Capitol in Austin–but online.

Speakers will also come from the Hill County where APOs are severely impacting quality of life.

Examples of Problems in Lake Houston Area

Mouth bar on the West Fork San Jacinto that mostly formed during Hurricane Harvey. It backed up water and contributed to flooding thousands of homes and businesses. Much of the sediment came from 20 square miles of sand mines immediately upstream. Cleanup cost to state and federal governments so far: about $150 million.
The day the West Fork (right) ran white after the LMI Mine upstream put 56 million gallons of process wastewater into the drinking water for 2 million people (Source: TCEQ).
Breach at Triple PG mine one White Oak Creek emitted process wastewater into headwaters of Lake Houston, the source of drinking water for 2 million people. Attorney General is suing mine for approximately $1 million.
Concentrated silt after sand is washed. Exposed in floodway of the San Jacinto West Fork.
River mining without a permit at the Spring Wet Sand and Gravel Plant on the west fork.

Speak for Up to 3 Minutes

Be prepared to speak for up to three minutes about how YOU personally have been or will be impacted by quarries, concrete batch plants, or asphalt plants. Pick one or two of these key issues that most affect you personally:

???? Air particulate emissions
???? Water use and availability
???? Water pollution and flooding
???? Rapid development of APOs without adequate regulatory oversight, mine planning, or reclamation
???? Truck traffic
???? Nuisance issues: blasting, noise, odor, light trespass, visible blight
???? Economic impacts, devaluation of property

URGENT: DO TODAY BEFORE 5pm

Just send in an email requesting to speak. You’ll have a week to plan and prep. Thanks for helping protect our families and community!

If possible, it is VERY IMPORTANT to speak at this meeting. However, if you aren’t selected to speak, or you don’t get your request submitted in time, there will be an additional opportunity later this month to submit written testimonial. We’ll send more info on this in the upcoming days and weeks.

SEND EMAIL

Posted by Bob Rehak on 9/25/2020

1123 Days since Hurricane Harvey