Proposed New Law Mandates Flooding Disclosure to Renters

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

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

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

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

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

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

TCEQ Commissioners Vote to Start Rule-Making Process for Sand Mining Best Practices in San Jacinto Watershed

On August 12, Texas Commission on Environmental Quality (TCEQ) Commissioners voted unanimously to initiate a rule-making process that would establish best management practices for commercial sand mining in the San Jacinto River watershed.

Meer feet separate the Hanson Aggregate mine from the San Jacinto West Fork. The integrity of dikes and setbacks from the river have become a major point of contention between the public and miners since Harvey. Photo taken late June.

Joint TACA/Lake Houston Area Request

In June, 2020, both TACA and the Lake Houston Area Grassroots Flood Prevention Initiative presented petitions to have the TCEQ establish best practices. Though the two sides have not agreed on important provisions, such as setbacks from the river and reclamation, the start of the process is a positive step.

Seven Minutes of Deliberation

You can watch the discussion among the commissioners on YouTube. Items 29 and 30 on the agenda (the two petitions) start at approximately 17 minutes into the meeting. Discussion lasts about 7 minutes.

After the commission secretary announced the agenda items, Mr. Josh Leftwich of TACA spoke on behalf of the measure. Mr. Leftwich took over as president and CEO of TACA on June 15, from David Perkins. (Mr. Perkins joined Lehigh Hanson, an aggregate company, as the Vice President of Government Affairs.)

No one for the Lake Houston Area spoke on behalf of the proposal.

Rebecca Vialva, executive director of the TCEQ Water Quality Division explained that both sides of this debate submitted separate but similar petitions in June. They requested the agency to establish a rule making process with stakeholder involvement to ensure adequate environmental protection. Ms. Vialva explained that her Water Quality Division supported that.

Vic McWherter, from the Commission’s Office of Public Interest Counsel, also supported the idea.

No one asked questions.

Rule-Making Process Not Same as Adopting Specific Rules

Before taking a vote, Jon Niermann, Chairman of the Commission, explained that initiating a rule-making process was not the same as adopting specific rules. It does not commit to any specific rules or outcomes. It simply starts a public dialog.

All three commissioners, Jon Niermann, Emily Lindley, and Bobby Janecka, voted to start the process.

Model for Rest of State?

Both Mr. Janecka and Mr. Niermann expressed wishes that Best Management Practices for the San Jacinto Watershed could become a model for the rest of the state.

Lake Houston Leaders Urge Public to Engage

Dave Feille and Bill McCabe, leaders of the Lake Houston Area Grass Roots Flood Prevention Initiative, sent out an email this morning. In it, they called the TCEQ decision “a major step forward.” However, they were quick to add, “Not surprisingly, the Petitions differed in some key areas and these will be addressed and consolidated in the rule-making stage of the process.”

“We would encourage all stakeholders to become involved in the rule-making process by following the progress of our Petition at: https://www.tceq.texas.gov/rules/participate.html,” said Feille and McCabe.

Efforts to establish best practices for sand mining died in committee in the state legislature last year. Let’s hope this has a better outcome.

Posted by Bob Rehak on 8/16/2020

1083 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.

Texas Water Development Board Now Accepting Applications for Flood Infrastructure Fund Projects

On March 16, 2020, the Texas Water Development Board (TWDB) finally started accepting applications for flood infrastructure projects under Senate Bill 7 signed by the Governor on June 13, 2019. We’re now at 941 days since Hurricane Harvey.

What Took So Long

What took so long?

  • Harvey happened shortly after the 2017 legislature concluded.
  • The Governor would immediately release money from the Rainy Day Fund.
  • The next legislature met in January of 2019.
  • It took until the end of May, 2019 for SB7 to work it’s way through the Senate and House.
  • The Governor signed the bill in June.
  • The bill stipulated that the fund had to be approved to voters in November 2019. It was.
  • Then the TWDB had to develop rules for what types of projects would be eligible for assistance, how they would be prioritized, etc.

We Aren’t to Goal Line Yet

What happens next?

  • Cities and counties have until May 14 to submit preliminary, abridged applications.
  • By early Summer 2020, the board will prioritize the abridged applications.
  • They will then invite applicants whose project meet criteria and fit within available funding to submit complete applications.
  • Complete applications will be due by early August 2020, about three years after Harvey.
  • Financial assistance commitments will begin in October 2020.
  • Closings begin later in the fall. Commitments have a six-month expiration period.

Construction of projects can then begin. If they were construction projects. Some grants will cover planning activities such as:

  • Preliminary engineering
  • Project design
  • Feasibility assessments
  • Coordination and development of regional projects
  • Obtaining regulatory approvals
  • Hydraulic and hydrologic studies

Different Types of Projects Eligible

The Flood Infrastructure Fund established by SB7 provides grants and 0% loans totaling $793 million. Eligible projects fall into four categories.

  • Category 1 – Flood Protection Planning for Watersheds
  • Category 2 – Planning, Acquisition, Design, Construction, Rehabilitation.
  • Category 3 – Federal Award Matching Funds
  • Category 4 – Measures Immediately Effective in Protecting Life and Property

Here’s a 36-minute video that explains the incredibly complicated rules for distribution of the funds. Warning: the video is not geared toward the public, but toward City and County employees who will apply for grants. Nevertheless, it’s interesting to see what goes on behind the scenes. Here’s a printed version of the Flood Infrastructure Fund Intended Use Plan that also describes all the rules.

Need to Move Quickly

With construction on many projects taking a year or more, the earliest citizens may see benefits from many of these grants will be 4 years post Harvey.

I understand the need to be cautious when handing out close to a billion dollars. But I also feel the need to act quickly with yet another hurricane season boring down on us. We should not forget that just last September, the fourth wettest storm in US history, Imelda, wiped out large areas between Houston and Beaumont. Sixty-two percent of the homes flooded during Imelda were outside of the 100-year floodplain. So we have lots of room for improvement.

Posted by Bob Rehak on 3/27/2020

941 Days since Hurricane Harvey and 190 since Imelda

Pipeliners Vs. Sandminers: An Update

The expansion of sand mines into easements occupied by pipelines puts both the public and the pipelines at risk – not to mention sand mine employees. In the last week, we have seen two areas where erosion triggered by sand mining undercut and exposed pipelines. Here’s an update on how the industry and regulators have responded.

Pipelines in general are the safest form of transportation known to humankind, even though they often carry highly flammable gases or liquids. However, undercutting and exposing them increases the risk of explosions, leaks and fires. It felt comforting, therefore, to see that the pipelines were aware of the problems and working to address them.

Exposed and Threatened Lines at Triple PG Mine In Porter

After posting the story about the exposed natural gas pipeline at the Triple PG mine, I received three calls from Kinder Morgan managers between 12 and 3 a.m. Saturday morning. I received another at 8 a.m. on Monday morning.

This satellite image shows the relative locations of the gas and HVL pipelines that cross the Triple PG property. It also shows the progression of erosion after Harvey but before Imelda. See post-Imelda erosion below.

Exposed Pipeline Now Replaced by One Buried 75-Feet Deep

Hurricane Harvey first exposed the natural gas pipeline in question shortly after Triple PG started mining right next to it. Water flowed through the mine from Peach and Caney Creeks (top to bottom above) during Harvey. It created severe erosion that left the pipeline hanging in several places. See below.

Exposed by erosion during Harvey and Imelda, this pipeline at the Triple PG sand pit in Porter is now “abandoned.”

After Harvey, the company immediately stopped the flow of gas through that pipeline and spliced in a new 2,000 foot section. It now runs 75-feet beneath Caney Creek and the erosion. Kinder Morgan filled the old section with inert gas and covered it up. However, Tropical Storm Imelda uncovered it again. But the pipe above has technically been abandoned. It no longer poses any danger to the public.

Kinder Morgan has not re-buried the pipeline because the Triple PG owners have not repaired the road to the pipeline.

At this mine, erosion has not yet reached the other five pipelines carrying highly volatile liquids (HVLs). But it is close.

Looking NW shows how close erosion and pits are to both sides of pipeline corridor.
Looking southeast at Triple PG mine and the massive erosion that occurred during Harvey and Imelda. Note pipeline corridor in bottom left.

During Harvey and Imelda, this erosion extended more than 1,700 feet (approximately 1/3rd of a mile) toward the HVL pipelines. The next large storm could take it across the corridor, exposing more pipelines.

Exposed and Undercut Pipelines in Conroe

Farther northwest in Conroe – up this same utility corridor – the HVL pipelines HAVE become exposed through headward erosion.

Mining here has moved toward the utility corridor in the foreground from the San Jacinto West Fork in the background.

Liberty Materials operates this mine. That’s the same company cited by the TCEQ for allegedly discharging 56 million gallons of a milky white substance into the West Fork from another mine last month. The other mine is about a mile south of this one. These are just two of nine facilities that Liberty operates in the area according to the TCEQ.

Looking south across the utility corridor and one half of the mine toward the West Fork. Notice water and sediment trying to drain to the river. See close up below.
Stormwater running across the utility corridor has undercut and exposed five pipelines. This process started in 2014 when the operator mined next to the utility corridor and triggered headward erosion..

Railroad Commission Response

In Texas, the Railroad Commission regulates pipelines. Jennifer Delacruz of the Texas Railroad Commission (TRRC) received several complaints and is aware of this situation. She told Josh Alberson, one of the complainants, that four of the five pipelines are interstate and therefore regulated by the Pipeline and Hazardous Materials Safety Administration. TRRC forwarded the complaints to them.

Wide shot of same area looking south across utility corridor to southern half of mine.

Mustang operates the one intrastate pipeline. According to Alberson, Delacruz had already discussed the situation with Mustang before he and she talked. Delacruz told Alberson that Mustang and the other operators had filed a lawsuit against the mine operator for damages and repairs, but it seemed to be going nowhere. The pipeline told her that it and the other pipeline operators are currently working together to protect the pipelines. They plan to start construction of earthworks or a concrete bridge in January. TRRC intends to closely monitor this going forward.

However, the depth of the pits on either side of the corridor may make bridging the erosion difficult because of soil instability. See below.

Note depth of newly excavated pit on north side of corridor.

As the northern pits get deeper and approach the utility corridor in the middle, the erosion under the pipelines will also get deeper. This seems like a losing battle for the pipelines. And there’s no guarantee that another area won’t wash out.

Industry Response

A pipeline manager at one of the world’s largest oil companies looked at these photos and said, “You could try to limp along with supports and erosion control, but Mother Nature will eventually ruin most anything that can be installed.” He felt that temporarily shutting the lines down and drilling under the mine would be the safest alternative, much like Kinder Morgan did at the Triple PG mine.

Legislative Response

Given the wholesale expansion of sand mining on the West Fork, and the unwillingness of the mines to keep a safe distance from pipeline easements, pipelines need to figure out a new strategy. To date, the state has refused to impose any meaningful setback regulations on sand mining.

TACA, the Texas Aggregate and Concrete Association, killed legislation that might have done that earlier this year. They lobbied heavily against developing best practices for sand mining. The bill died in committee. As a consequence, we now have worst practices.

Posted by Bob Rehak on 12/11/2019 with help from Josh Alberson

834 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.

Governor Signs Flood Mitigation and Sand Mining Legislation. Now, what happens when?

Governor Greg Abbott has signed final versions of Senate Bill (SB) #7, SB 500, House Bill (HB) #907 and HB 1824. So, what will happen when? Let’s look at the implementation of each.

Flood Mitigation: SB 7 Implementation

SB 7 establishes special funds dedicated to flood mitigation. The bill creates dedicated Texas Infrastructure and Texas Infrastructure Resiliency Funds for flood control planning and the funding of flood planning, mitigation, and infrastructure projects.

Money from SB 7 could help fund additional flood gates for the Lake Houston spillway. They could help release water faster before and during floods such as Hurricane Harvey.

Within 90 days, a Texas Infrastructure Resiliency Fund Advisory Committee will submit recommendations to the Texas Water Development Board (TWDB) on rules it should adopt in administering the fund. TWDB has another 90 days to adopt rules governing the fund. After that, on or before the end of this year, the TWDB may begin financing projects in the state flood plan.

The bill itself takes effect immediately because it passed both the House and the Senate by more than a two-thirds majority. The Senate passed it 31-0. The House passed it 143-1 with two present but not voting. However, Article Two of SB 7 – the part dealing with the infrastructure fund – takes effect on January 1 of 2020 ONLY IF VOTERS APPROVE a constitutional amendment in November. If voters do NOT approve the constitutional amendment, Article Two has no effect.

Flood Mitigation Funding: SB 500 Implementation

SB 500 is an all-purpose special appropriations bill. It appropriates money for SB 7 and other Hurricane Harvey relief projects. For instance, it include $30 million to help dredge where the San Jacinto meets Lake Houston. SB 500 passed with greater than two-thirds majorities in both House and Senate. Therefore, it takes effect immediately.

That means $30 million should be available today to help dredge the mouth bar of the west fork.

$30 million can now used to help dredge the mouth bar.

Sand Mining Inspections and Fines: HB 907 Implementation

On its way to becoming law, the Senate strengthened HB 907. In its final form, it increased inspection frequency for all aggregate production operations (APOs) from every three years to every two.

Breach in Triple-P mine in Porter allowed process water to flow directly into Caney Creek, East Fork and Lake Houston, the source of drinking water for millions of people.

HB 907 also allows the TCEQ to conduct unannounced inspections if the TCEQ investigated a complaint about an APO operation in the previous three years.

It sets registration fees for APOs at a level that will allow the TCEQ to establish an active APO registry.

Finally, it increases penalties for failure to register an APO. It set the minimum at $5000 and the maximum at $20,000 per year with the total not to exceed more than $40,000 for any three year period.

This act takes effect on September 1, 2019. It passed in the House by 135-8 with one present and not voting. It passed in the Senate 28-3.

“Sand Trap” Bill: HB 1824 Implementation

Environmental groups and citizens, including me, fought to clarify the open-ended language in HB 1824. It allows the San Jacinto River Authority (SJRA) and Harris County Flood Control District take sand and gravel from the San Jacinto without a permit in order to restore the conveyance of the river. They can also deposit the sand and gravel on private land.

Opponents feared that it would open the door to river mining because the SJRA is essentially an economic development entity that is sensitive developers. The SJRA has also shown no desire in the past to control sand mining along the banks of the river.

When I asked legislators, miners, TACA and the SJRA how it would work, I received four different answers!

Proponents of the bill sold it as “the sand-trap bill.” The idea: to get sand mining operations to dredge the river, allow them to sell the sand, and avoid taxpayer expense. By dredging at certain locations under government supervision, proponents hoped to reduce the amount of sand coming downriver. That sand reduces the conveyance of the river and contributes to flooding.

If the bill actually works that way, great. But there’s nothing in its language that indicates how it will work or whether miners will be supervised. River mining is outlawed in many countries, including most of Europe. It has been linked to the destruction of private property in many of other countries that allow it.

Watch private sand mining activity on the river closely! This bill takes effect in three months, on September 1, 2019.

Posted by Bob Rehak on 6/3/2019

642 Days since Hurricane Harvey

The thoughts in this post represent my opinions on matters of public interest and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP statute of the great State of Texas.