Updates Relating to Proposed Sand Mining and Flood Mitigation Legislation

At the start of this legislative session, I added a new page to this web site called Legislation. Its purpose: to help people track key pieces of proposed legislation affecting the Lake Houston area that have to do with sand mining and flood mitigation.

On it, you can see summaries of issues, links to the actual text of proposed bills, a “status tracker,” and posts that describe bills in more detail. I update these every few days. If you need to check on updates that have not yet been posted, consult Texas Legislature Online. It’s updated nightly during legislative sessions.

Key Bills Affecting Lake Houston Area

HB13 Creates a flood infrastructure fund of $3.26 billion taken from the Economic Stabilization (Rainy Day) fund for flood planning, mitigation, and infrastructure projects. (Comparable to SB7 below but with some differences.)

HB509 Allows Texas Railroad Commission to regulate APOs with TCEQ. Requires: hydrologic impact study, public notice, public hearings, and provides fines up to $10,000 and 1-year in jail for false statements.

HB 907 Doubles the penalties for not registering a sand mining operation. New penalties can range from $10,000 to $20,000 per year with the total not to exceed $50,000.

HB 908 Provides for penalties up to $50,000 for water code violations and every-other-year inspections.

HB 909 Calls for the TCEQ to adopt and publish best management practices for sand mines (aggregate production operations) that comply with applicable environmental laws and regulations.

HB 1674. Extends water quality protections to the West Fork of the San Jacinto currently enjoyed by the John Graves District on the Brazos as part of a pilot program. Attaches penalties for non-compliance with best practices defined under HB909.

SB 7. Creates a dedicated Texas Infrastructure Fund for flood control planning and the funding of flood planning, mitigation, and infrastructure projects.

SB500. An omnibus appropriations bill that includes funding for SB7 and an amendment that would dedicate $30 million for dredging of the West Fork Mouth Bar in Lake Houston.

Status of Each as of 3/26/19

HB13  Filed on March 7, 2019. Referred to Natural Resources on 3/11. Reported favorably by committee. Sent to Calendars Committee on 3/25.

HB509 Filed Dec. 11, 2018, Referred to Energy Resources 2/20/2019.

HB 907 Filed Jan. 17, 2019, Referred to Environmental Regulation 2/25/2019.

HB 908 Filed Jan. 17, 2019, Referred to Environmental Regulation 2/25/2019.

HB 909 Filed Jan. 17, 2019, Referred to Environmental Regulation 2/25/2019.

HB 1671 Filed on March 4, 2019, Referred to Natural Resources 3/4/2019.

SB 7 Filed on March 6, 2019, Referred to Water & Rural Affairs on 3/7, Public testimony 3/11. Senate passed unanimously by voice vote on 3/20. Received by House on 3/21.

SB500 Approved by Senate on 3/13. Engrossed, sent to House, and referred to Appropriations committee on same day. Approved with changes by House Appropriations on 3/19. The Appropriations Committee analysis of CSSB500 says on page 9, “The substitute does not include an appropriation to the comptroller for the Texas infrastructure resiliency fund or certain other provisions relating to that fund.”  A separateHuberty amendment proposed on 3/22 would dedicate $30 million for dredging the West Fork mouth bar in Lake Houston.

Developments to Watch

Nothing has happened yet on any of the sand-mining bills since being sent to committees.

  • HB509 is reportedly dead in the water. That’s a shame. It was the only bill that made hydrologists consider the aggregate impact of all mines in an area when permitting an operation. And that is precisely our issue.
  • HB907, 908, 909 and 1671, according to Dan Huberty’s office, will soon be scheduled for committee hearings. That’s worth a trip or four to Austin!

SB7 created a Texas Infrastructure Resilience Fund (TIRF) which was funded within SB500, an omnibus appropriations bill. But when SB500 got to the House, the Appropriations Committee deleted funding related to the TIRF – at least temporarily, while the House considers its own HB13. HB13 has many of the same objectives as SB7, but it has not yet reached the House floor for a vote.

Braden Kennedy, an assistant of Senator Brandon Creighton who sponsored SB7 had this to say. “It was unfortunate to see the House remove the funding to TIRF. However, Senator Creighton is confident we can find common ground down the road and achieve a Texas-sized appropriation hopefully during conference committee, when members of the Senate and House get together and settle the differences on the bill. Right now, House Bill 13 includes the appropriation itself while in the Senate, the members believe these expenditures should be in the supplemental budget (SB 500). We still think SB 7 has many certain advantages in that it is versatile in use – Harvey recovery dollars, future mitigation project funding, and Army Corps matching funds – and it includes several oversight and transparency safeguards.”

Check back soon and often. This is a $3.2 billion issue!

Posted by Bob Rehak on 3/26/2019

574 Days since Hurricane Harvey

Huberty Proposes Amendment to Appropriations Bill that Would Allocate $30 Million to Dredge Mouth Bar

Senate Bill 500 is an omnibus appropriations bill passed by the Texas Senate on March 13. The bill passed to the House for committee review and consideration the same day. Last Friday, March 22, State Representative Dan Huberty offered an amendment to SB 500. It would allocate $30 million to dredging the mouth bar where the West Fork of the San Jacinto meets Lake Huston.

Text of Huberty Amendment

The text reads:

“Out of the funds appropriated in Subsection (1), $30 million dollars is dedicated to the Texas Water Development Board to provide a grant to Harris County for the purchase and operation of equipment to remove accumulated siltation and sediment deposits located at the confluence of the San Jacinto River and Lake Houston.”

Great News for West Fork Residents

This is great news for Lake Houston and West Fork residents. We faced six floods last year on relatively small rains. The mouth bar and other sediment dams left by Harvey created backwater effects that exaggerated flood heights. The exaggerated response of the river to these modest rains forced the City to prerelease water to avoid flooding.

It’s not clear how much funding the City will get from FEMA, if any, to address the mouth bar. The two sides have been arguing for more than a year about how much of the sediment is due to Harvey. Stephen Costello, the City’s Chief Recovery Officer, told a town hall meeting in Kingwood last week that there was at least 1.5 million cubic yards of sediment that needs to be removed to restore the river’s natural conveyance. Local geologists estimated that at least a third of that was due to Harvey.

Matching Funds for County

Last year, the County Flood Bond approved by voters in August included a $10 million match for dredging of the East Fork, West Fork and Lake Houston. The project description read: “Potential partnership project with the City of Houston, Coastal Water Authority, and the State of Texas to permit, design, and complete dredging of the East Fork, West Fork and Lake Houston area waterways to reduce flooding risks.”

The County expected to provide one-fifth of the total $50 million projected cost.

If the Huberty amendment and the appropriations bill pass, suddenly we have a clear path to funding… regardless of what FEMA does and how long it takes their money to get here.

Includes Purchase of Equipment

The Huberty amendment calls for the purchase and operation of equipment. That means the equipment could be owned and used wherever needed. For about a year, the Army Corps has emphasized the need for maintenance dredging to prevent re-accumulation of massive deposits.

Matching Funds Mean Higher Priority

There’s a lot to like about this simple amendment. Consider this. Many have worried lately about prioritization of flood bond projects, i.e., which would kick off first. Readily available matching funds would give the dredging project a very high priority. That would accelerate execution of the project.

Posted by Bob Rehak on March 25

573 Days after Hurricane Harvey

After Town Hall Meeting, Confusion Still Swirls Around Status of Mouth Bar

To hear the City tell it, we’re days away from agreement to dredge 1.5 million cubic yards of the mouth bar. To hear Congressman Dan Crenshaw tell it, the permit application hasn’t even been filed yet.

So where do things really stand. A reader asked last weekend, whether the Houston Chronicle story about the meeting was accurate.

The Chronicle headline said, “Crenshaw frustrated with delayed application for federal funds to remove notorious Kingwood mouth bar.”

Specifically, the reader asked, “Based on your knowledge, is this factual (City of Houston dragging its feet) or just politicians pointing the finger at each other?”

Before I step into the cross-fire, let me say this. Officials have conducted most meetings on this subject behind closed doors. But I shall attempt to answer the reader’s question based on public statements and documents supplied by Houston City Council member Dave Martin and the Army Corps.

Mouth Bar Chronology

To answer the “Is it foot-dragging or finger-pointing” question, I need to go back to the period after Harvey and put this subject in a historical context. Foot dragging depends on where you want to start the clock ticking. So bear with me.

2017: Post Harvey Discovery and Early Efforts to Raise Awareness

September, 14, 2017 – Two weeks after Harvey, I photographed the mouth bar from a helicopter. In the next few months, I began calling attention to it and other sediment problems every way I could. They included this web site, newspaper articles, and testimony before Texas Senate and House committees. At the House Natural Resources Committee hearing at the GRB, Dave Martin was present.

Mouth Bar of the West Fork of the San Jacinto. Like an iceberg, most of it is below water. To get past this blockage, water must flow uphill more than 30 feet.

Early 2018: Early Efforts to Forge Political Consensus

  • February of 2018 – Houston City Council Member Dave Martin began calling Governor Greg Abbott for help on an almost daily basis.
  • March 6, 2018 – Mayor Sylvester Turner announced at a Kingwood Town Hall meeting that he had on that same day spoken to Governor Greg Abbott about the urgent need to remove sediment from the San Jacinto River.
  • March, 15, 2018 – Governor Abbott visited Kingwood, took an aerial tour of the East and West Forks of the San Jacinto and met with local officials. After the meeting, he announced that, using Hazard Mitigation Funds, he was authorizing the Texas Department of Emergency Management (TDEM) to spend $3 million to jumpstart the engineering and permitting process to determine where dredging should take place on the San Jacinto River.
  • April. 6, 2018 – An Army Corps sonar-equipped boat began surveying a five-mile area between Hwy 69/59 and West Lake Houston Parkway.
  • April 10, 2018 – The Army Corps announced that it had completed the first leg of its survey of West Fork sedimentation.
  • May 9, 2018 – The Corps announced that it had completed the value engineering phase of its Emergency West Fork Dredging Program.
  • May 28, 2018 – DRC (under a contract with the City of Houston) began removing debris from Lake Houston to clear the way for dredging.

Mid-2018: Mouth Bar Excluded from Scope, Scramble to Identify Solutions

Second Half 2018: Effort to Save $18 million

  • July 19, 2018 – Mobilization for the project officially started. About this time, it became clear that mobilization represented 25% of the total cost of the $70,000,000 job, or about $18 million. If the dredging scope could be extended BEFORE the end of “Phase 1,” taxpayers could save the cost of a massive REmobilization for a second, separate project.
  • July 26, 2018 – Members of the Lake Houston Area Flood Prevention initiative meet with County Judge Ed Emmett to discuss priorities for the upcoming flood bond including additional dredging for the mouth bar.
  • July 27, 2018 – Tim Garfield and R.D. Kissling, two retired top geologists for a major oil company publish a paper describing why the mouth bar should be included in the scope of dredging.
  • August 9, 2018 – Houston City Council Member Dave Martin holds a meeting to line up the support of Senators Cruz and Cornyn for extending dredging to the mouth bar.
  • August 21, 2018 – Lake Houston Area Grass Roots Flood Prevention Group meets with Ted Poe to urge extension of dredging.
  • August 25, 2018 – Harris County voters approved a flood bond package that included money to extend dredging.

Late 2018: Countdown Clock Keeps Ticking

Storage Permit Controversy and Delays

Costello’s notes on the December 14th meeting also indicate that he had applied to the Corps for a permit to dispose of the dredged material. “A nationwide permit was submitted and subsequently denied by the USACE. We are meeting with all parties involved to discuss the next course of action required to obtain the necessary permits,” says the letter.

It would be another FOUR months before this meeting happened…by conference call.

A confidential source, who spoke on condition of anonymity, indicates a difference of opinion about the permit application. The source says the permit application, filed sometime in November of 2018, was NOT DENIED and that the Corps simply requested more information.

The City still has NOT supplied the additional information, nor has it reapplied for the permit.

Specifically, the Corps wanted to know how much material would be excavated, where it would be stored on the landowner’s property, whether there were any mitigation requirements, and whether there were alternative disposal sites in case the primary site proved unacceptable for some reason. There was also some confusion over the type of nationwide permit (NWP) requested. According to one source, the permit requested was for drying/dewatering the spoils and then hauling them off-site. However, the landowner wanted to keep the fill and use it to raise the level of his property.

“Tomorrow Afternoon”

On January 14, 2019, Costello told a group of Lake Houston Area leaders that he hoped to be taking core samples “tomorrow afternoon” and have results by the end of January. That did not happen.

It since has become clear that Costello met with TDEM Chief Nim Kidd on February 6th to discuss his data acquisition plan. He summarized it in a memo dated February 8th titled Lake Houston Dredging Analysis Workplan. The plan included three stages:

  1. Using a high frequency “Chirp-type” acoustic sub-bottom profiler data-acquisition tool
  2. Core sampling
  3. Sediment analysis

Note that on five other occasions between mid-January or mid-March, Costello told people that the City would be taking core samples “tomorrow afternoon.” Martin says they finally took the core samples the week before the March 21st town hall meeting.

No explanation was given for these delays. With $18 million dollars in remobilization fees at stake, no one ever even acknowledged the delays.

Core Sample Results

The results that Costello reported at the town hall meeting – $1.5 billion cubic yards – were preliminary estimates. At the meeting, Costello said he expected the final number “tomorrow afternoon” (there’s that phrase again) and that he would send the final report to FEMA no later than Monday, March 25. He vowed to refile an amended permit with the Corps by Friday, March 29. As of 5PM Monday, Costello still has not replied to inquires about whether he transmitted the results to FEMA.

Estimated depth of Harvey Deposits at core sample locations. Shown by Stephen Costello, City of Houston Chief Recovery Officer and Kingwood Town Hall Meeting on 3/21/2019. For a high resolution pdf of this image suitable for printing, click here.

Remember, there are two issues: FEMA controls funding; the Corps controls permitting for the storage.

Note that FEMA wants to limit funding to Harvey-related damage only; but the Corps is looking for a disposal site that could hold far more sediment, i.e., for pre-Harvey material. Other sources (City, County, State) could fund removal of pre-Harvey sediment to restore the full conveyance of the river. Having one site that could handle everything could save considerable permitting work.

Also lost in the Town Hall political pep rally was the fact that the Corps volunteered to prescreen the application to make sure it was complete and that the the city filed the right type of nationwide permit this time.

When the City says “We are moving as fast as humanly possible,” that sounds like a bit of exaggeration. It took the City four months to acquire the core samples needed to determine the Pre-Harvey volume of the mouth bar. Ultimately, they did it in an afternoon when facing the deadline of last week’s town hall meeting.

Next Steps vs. Deadline to Save $18 Million

So will the City be able to save the $18 million. The current dredging program is due to demobilize in a little more than a month, at the end of April. Before then:

  • FEMA must rule on findings of the core sampling before it can fund the mouth bar project (or at least the initial phase of it).
  • Several parties must audit any grant.
  • City must refile the correct type of permit with additional information.
  • Corps must review and comment.
  • Corps must hold a 30-day public comment period by Federal law.
  • Corps must issue final ruling on permit application.

That looks like at least several months worth of work.. So no, it doesn’t look like the City will be able to save taxpayers $18 million unless they can pull off a miracle.

Is the City moving “as fast as humanly possible?” as one city official said at the Town Hall meeting last week.

You be the judge. How long this has taken depends on where you want to start the clock ticking. It’s not as clear as either side would have you believe. Still there are huge gaps in the timetable that need to be explained to the public…especially if we lose $18 million.

Late-Breaking News: Huberty Amendment to CSSB 500 on Mouth Bar

Meanwhile, State Representative Dan Huberty filed this amendment to CSSB 500 on March 22. It would provide $30 million for dredging the mouth bar. (CSSB stands for Committee Substitute Senate Bill. SB 500 is an omnibus spending bill approved by the Senate, now being considered in the Texas House as CSSB 500.) That money, if approved, could go a long way toward dredging the portion of the mouth bar that FEMA doesn’t fund and the rest of the West Fork.

Posted by Bob Rehak on March 25, 2019

573 Days since Hurricane Harvey

Creighton’s SB7 Passed Unanimously by Senate, Bill Goes to House Today

NOTE: This article has been updated to include the paragraph below entitled Floodplain Implementation Account. I also added a mention of a separate appropriations bill, SB500.

One of the most important pieces of legislation in Austin this session is SB7, sponsored by Senator Brandon Creighton. It relates to flood control planning and the funding of flood planning, mitigation, and infrastructure projects.

Light pole near River Bend in North Shore as Harvey receded. Note the “wet marks” several feet up on pole. Photo by Jim Balcom.

Status of SB7

The Texas Senate passed the bill unanimously yesterday. It is now engrossed and in the House. Engrossed means it has been recorded in its final legal form by the chamber in which it was introduced and passed to the opposite chamber.

SB 7 started life as SB 695, but was renumbered when it became one of the Lieutenant Governor’s top picks for the session. The lower number makes it one of the first bills to be considered, thus increasing its chances of passage during this session.

Last week, the Senate heard testimony on the bill. Yesterday, 31 senators voted by voice FOR the bill. None opposed it.

What SB7 Includes

Key provisions of the final version of SB7 include:

  • Creation of a Texas Infrastructure Resiliency Fund outside of the General Revenue Fund. Within the Resiliency Fund, it also creates:
  • A Floodplain Management Account to provide financing for: (A) the collection and analysis of flood-related information; (B) flood planning, protection, mitigation, or adaptation; (C) the provision of flood-related information to the public through educational or outreach programs; or (D) evaluating the response to and mitigation of flood incidents affecting residential property, including multifamily units, located in floodplains.
  • A Floodplain Implementation Account to grant, low-interest, or zero-interest loans. Purposes: (A) to provide matching funds that enable local governments to participate in a federal program for a flood project; (B) to provide loans at or below market interest rates for planning or design costs, permitting costs, or other costs associated with state or federal regulatory activities for flooding; or (C) to provide grants that enable local governments to participate in a federal program for the development of a hazard mitigation plan.
  • A Hurricane Harvey account, also within the resiliency fund to grant low-interest or zero-interest loans to eligible political subdivisions. The loans can be used as a local match to enable political subdivisions to qualify for a federal match. The loans will help local governments seeking federal grants for hazard-mitigation and public-assistance plans or the cost of flood-project planning, design, permitting, etc. associated with state or federal regulatory activities.
  • A Federal Matching Fund Account. The board may use the account only to meet matching requirements for projects funded partially by federal money, including projects funded by the United States Army Corps of Engineers.
  • Rules regarding the distribution of funds, administration, transparency, etc.

What SB7 Does NOT Include

Not in the engrossed version sent to the House: a specific dollar amount to establish the fund. When introduced, SB 695 called for $3 billion to be transferred from the “rainy day” fund to establish the resiliency fund. That’s no longer in the bill.

In its place, the bill now has some vague language that refers to:

  • Money deposited to the credit of the account under Section 251.004, Insurance Code;
  • Money directly appropriated to the board;
  • Money from gifts or grants from the United States government, local or regional governments, private sources, or other sources.

This bill sets up the accounts. A separate bill, SB500 handles the appropriations for the accounts.

How SB7 Will Help Flood Mitigation

Still, if funded, the Texas Infrastructure Resilience Fund, will provide a wonderful vehicle to help jumpstart critical flood mitigation projects. It provides low- or no-cost LOANS, to help local governments get matching funds to:

  • Study flood problems
  • Design solutions
  • Fund construction.

Why SB7 Is Necessary

These loans can be used to help local governments bypass the begging phase of flood mitigation where they look for grants to fund grant writers or study problems. Example: It took almost 18 months after Harvey for Montgomery County, the City of Houston, Harris County and the SJRA to come up with a local match and get FEMA to cover the rest of a $2 million San Jacinto River Basin Study. That study will that take another 18 months to complete.

SB7 could have saved half that time. SB7 deserves the support of all Texans who would like to see flood mitigation efforts accelerated.

To review the status of other legislation affecting the Lake Houston area, check the Legislation page of this website.

Posted by Bob Rehak on March 21, 2019

569 Days since Hurricane Harvey

Senator Creighton Introduces Bill that Could Speed Up Flood Planning, Mitigation

In the wake of Hurricane Harvey, many officials complained bitterly that money from the State’s “rainy day” fund couldn’t be used for flood mitigation projects. Former Harris County Judge Ed Emmett often said, “If Harvey wasn’t a rainy day, I don’t know what is!”

Creighton Introduces Bill That Could Speed Flood Mitigation

Responding to a need that many recognized, in February, Texas State Senator Brandon Creighton introduced SB 695. On March 1, it went to the Senate Water and Rural Affairs Committee. It relates to state policies and programs that affect the funding of flood planning, mitigation, and infrastructure projects.

SB 695 went to the Senate Water and Rural Affairs Committee last Friday.

Creighton’s bill would appropriate $3 billion from the state’s economic stabilization fund to a dedicated flood infrastructure fund. The purpose: to make low- or no-interest loans to cities, counties, and water authorities for:

(1) planning for flood protection;

(2) preparing applications for obtaining regulatory approvals at the local, state, or federal level;

(3) activities associated with administrative or legal proceedings by regulatory agencies; and

(4) preparing engineering plans or specifications to provide structural or nonstructural flood mitigation or drainage.

$3 Billion In Ready Cash Could Streamline Process

The main benefit: the bill provides ready cash in emergencies, such as Harvey, to jumpstart mitigation projects.

Because of the complicated way that grant funding now works, political entities must often apply for grants to raise the money for a local match to then apply for a larger grant. The result: lengthy delays.

Example: it took 18 months to obtain $2 million for a San Jacinto River Basin Study that will take another 12-18 months to execute. By the time people start acting on the findings, it could be another year or two.

Hopefully, Creighton’s SB 695 will reduce the time between problems and solutions so that Texas citizens face less flood risk. Click here, to download and review the full text.

Bill Deserves Bi-Partisan Support

This important bill deserves everyone’s support, Democrats and Republicans alike. It could be one of the most important pieces of legislation taken up this year. My understanding is that former Harris County Judge Emmett, Harris County Flood Control and Houston Stronger all backed the idea.

Posted by Bob Rehak on 3/4/2019

552 Days after Hurricane Harvey

Two Dozen Pieces of Legislation Introduced to Help Prevent Another Disaster like Harvey

While I have primarily focused on legislation around sand mining, legislators in both the Texas House and Senate have filed bills that address other aspects of the Harvey disaster. I have arbitrarily grouped them into several categories below to make this rather lengthy list easier to follow.

The 86th Legislature of the State of Texas is now considering all of the proposed legislation in this post.

Preparedness

Remember how residents received no warning to evacuate before water invaded their homes? Remember how the storm overwhelmed emergency response systems?

  • Rep. Will Metcalf introduced HB26 that would create an alert system. It stipulates that the dam operator must provide: time of release, expected duration of release, expected level of flooding that will result, etc.
  • Rep. Richard Raymond introduced HB34 that would create a statewide disaster alert system under the Texas Division of Emergency Management (which is part of DPS).
  • Rep. Sarah Davis sponsored HB1294 requiring emergency management training for officers and employees of political subdivisions whose responsibilities include emergency preparedness or management.
  • Sen. Boris Miles introduced SB 285. It would require the Governor to issue a proclamation each year before hurricane season. The proclamation would direct state agencies, municipalities and counties to review and update hurricane preparedness plans. It would also require them to conduct community outreach and education activities on hurricane preparedness.
  • Sen. Charles Perry introduced SB396 relating to state and regional flood planning. It would create a state flood planning process administered by the Texas Water Development Board.

Dam Hazards

Concerned about that upstream dam that might flood you?

  • Rep. Gina Hinojosa introduced HB137 that would require the TCEQ to notify communities of significant dam hazards.

Involving Public in Permitting Processes

Concerned about how sand mine and superfund sites get permitted next to your water supply without anyone in your community knowing?

  • Rep. Jessica Farrar introduced HB245. It would require applicants for environmental and water-use permits to post a copy of the applications online.

Flood Insurance Disclosure

Did you think you had flood insurance coverage when you didn’t?

  • Rep. Mary Ann Perez filed HB 283. It would require insurers to disclose on the top page of a commercial or residential policy whether the policy covers loss caused by flooding.

Disclosure of Prior Flooding

Concerned that the people selling you a home might not fully disclose flood risks and the property’s history re: flooding?

  • Senator Joan Huffman introduced SB339. relating to a seller’s disclosure notice for a residential property regarding floodplains, flood pools, or reservoirs. It would require a seller of residential property to disclose existing information about whether the property is within the 100-year floodplain, the 500-year floodplain, the flood pool of a reservoir, or within five miles downstream of a reservoir and the property has flooded in a flood event.

Adequacy of Infrastructure

Concerned about how our infrastructure couldn’t handle Harvey and about how long it is taking to fix those issues?

  • Rep. Dade Phelan introduced HB478 that would help fund flood planning, mitigation and infrastructure projects.
  • Rep. Amando Walle introduced HB801 that would establish a task force to conduct a comprehensive study on flood control infrastructure for Harris County.
  • Sen. Boris Miles introduced a companion bill to HB801. SB 179 requires U of H to provide staff and administrative support for the task force. It also directs Harris County Flood Control to advise the task force.
  • Rep. Dennis Paul introduced HB1010 that would establish regional flood planning that includes a prioritized list of projects necessary to meet the needs of the region for the next 10 years.
  • Rep. Eddie Lucio III introduced HB1059 that requires the TCEQ to appoint a Green Stormwater Infrastructure and Low Impact Report Group. It would report every other year on systems and practices that manage stormwater, and that protect water quality and associated habitat.
  • Sen. Charles Perry sponsored SB397 related to the funding of flood-related projects by the Texas Water Development Board. It also includes flood-related projects administered by the State Soil and Water Conservation Board.
  • Senator Brandon Creighton introduced SB695. It creates a Texas Infrastructure Resiliency Fund administered by TWDB to provide grants, low-interest loans, or zero-interest loans to eligible political subdivisions. for
  • flood projects.
  • Sen. Charles Perry proposed a constitutional amendment providing for the creation of a State Flood Plan Implementation Fund to assist in the financing of certain flood-related projects. It also calls for transferring $1.2 billion from the economic stabilization fund into State Flood Plan Implementation fund on 11/30/19.

Sand Mining

Concerned about whether aggregate production operations (sand mines) will destroy a river near you?

  • Rep. Terry Wilson, introduced HB509. It would allow the Railroad Commission to regulate aggregate production and requires them to consider the cumulative impact of multiple operators in an area.
  • Rep. Dan Huberty filed HB907 that increases penalties for failure to register aggregate production operations.
  • Huberty also introduced HB908. It increases penalties for other violations by aggregate production operations and requires inspections by the TCEQ every two years instead of three.
  • HB909, also by Huberty requires the TCEQ to establish a set of Best Management Practices for aggregate productions operators.
  • Sen. Donna Campbell introduced SB694. It increases the frequency of aggregate production operations by the TCEQ and allow unannounced inspections for APOs that had violations in the preceding two years. It also increases the maximum possible penalty for APO violations to $20,000 per day from $10,000.

Aquifer Storage and Retrieval

Concerned about loss of lake capacity due to sedimentation from flooding? About subsidence? About the long-term availability of ground water?

  • Rep. Lyle Larson introduced HB720. It appropriates water for use in aquifer storage and recovery projects.
  • HB721, also sponsored by Larson, requires the Texas Water Development Board to conduct studies of aquifer storage and recovery, and to prepare and submit reports on the same.

Lake-Houston-Area Interests

Concerned that no dedicated entity is looking out for the interests of Lake Houston Area residents?

  • Rep. Dan Huberty introduced HB911 that creates a Lake Houston Watershed Commission that will be responsible for planning for the area, share information and publish information.

If you are aware of other bills that should be on this list, please contact me. I will update it periodically throughout the legislative session.

You can track the progress of bills through the legislative session by clicking on links to the bills above. You can also track a group of bills by creating a list at My Texas Legislature Online.

Posted by Bob Rehak on 2/16/2019

536 Days since Hurricane Harvey

Huberty Introduces HB1671 To Extend Water-Quality Protections to West Fork

State Representative Dan Huberty introduced House Bill 1671 this week. It amends Section 26.551 of the Water Code to give the West Fork of the San Jacinto protections enjoyed by the John Graves Scenic District on the Brazos as a result of a pilot program started in 2005. The bill covers the portion of the West Fork between Lake Conroe and Lake Houston which has 20 square miles of sand mines.

Visual Inspections Twice a Year

If adopted, it would obligate Texas Parks and Wildlife Department to conduct visual inspections of the West Fork twice a year. The inspections would consist of two parts: flyovers and from the water surface. TPWD would conduct one set of inspections in summer and the other in winter.

Any fines received as a result of these inspections would go into a fund for reclamation and restoration of “beds, bottoms, and banks of water bodies affected but the unlawful discharges.”

Pilot Program Ends in 2025

If approved HB1671 would take effect on September 1, 2019, and run through September 1, 2025. That’s because the original bill was conceived as a pilot program that expires in 2025.

Greater Setbacks, Performance Bonds and Best Practices

The original bill also prohibits the construction or operation of any new quarry, or the expansion of an existing quarry, located within 1,500 feet of a water body located in a water quality protection area. However…

Exceptions may be granted if the quarry can prove that it satisfies performance criteria that address:

  • (A) slope gradients that minimize the potential for erosion, slides, sloughing of quarry walls, overburden piles, and banks into the water body and related water quality considerations;
  • (B) whether operations could result in significant damage to important historic and cultural values and ecological systems;
  • (C) whether operations could affect renewable resource lands, including aquifers and aquifer recharge areas, in which the operations could result in a substantial loss or reduction of long-range productivity of a water supply or of food or fiber products; and
  • (D) whether operations could affect natural hazard land, including areas subject to frequent flooding and areas of unstable geology, in which the operations could substantially endanger life and property.
River is migrating toward pit in background at 12 feet per year. Only 38 feet remain before river breaks through dike. Wider setbacks, like those mandated in HB1671, would reduce this danger and consequent sedimentation.

The other major provisions of the bill make quarry operators:

  • Follow best management practices which, presumably, would be defined under HB909.
  • Post a performance bond that covers site reclamation when they finish mining.

Pros

This bill would be a good first step in protecting the shores of the San Jacinto.

It would requires new operations to move farther back from the river. That should help reduce sedimentation and erosion in the long run. Lake Houston Area flood prevention activists have pushed this idea for more than a year.

HB1671 would also force operators to follow industry best-management practices and to reclaim land when they are done mining.

Cons

Unfortunately, the pilot program only runs for six more years. However, if successful, the legislature could make the program permanent in 2025.

The twice yearly inspections are a disappointment though. The major damage to water quality comes from breached dikes. Operators can patch dikes and plant grass which conceals the evidence of breaches after a few weeks in this climate. Landsat images, such as those in Google Earth, provide a much more effective method of monitoring. The satellite goes over this area every 1.5 hours…16 times a day. Monitoring operations from a computer monitor in near-real time would be much more effective and cheaper. One person could monitor every mine in the state on a daily or weekly basis.

About one month after this West Fork sand mine breach, new grass was already knee high. Inspections need to be made more frequently than once every six months. Satellite photos provide a more timely and cost-effective solution.

However, neither miners, regulators, nor legislators seem eager to take advantage of this technology when I bring the subject up. It makes one wonder why.

Recommendation

All in all, I love what HB1671 is trying to do and support it whole-heartedly. I hope as it makes its way through committee, the amendment can be amended to include more frequent satellite inspections.

Posted by Bob Rehak on February 14, 2019

535 Days since Hurricane Harvey

Sand Miners Plan TACA Days in Austin for February 4th, 5th

Sand miners plan to gather in Austin on February 4th and 5th to meet with legislators for their annual TACA Days. TACA stands for the Texas Aggregate and Concrete Association. It represents sand miners. They hope  to beat back regulation of the industry that could help protect areas like Lake Houston from excessive sedimentation.

They describe the event as a series of meetings with state legislators and their staffs, which will be followed by recognition in both the House and Senate Chambers.

The flood during Hurricane Harvey breached sand mine dikes and roads up and down the West Fork. All of the mines with the exception of one are located inside the floodway – a dangerous business practice that contributes to sedimentation. However, none of the bills introduced in the Texas House so far address this issue.

TACA Plan of Attack

The invitation says that for the meetings, the group will split up into teams. Each team will have a captain who speaks for the group. Captains know the drill from previous attempts to beat back legislation. TACA has spent millions of dollars lobbying the legislature and key state officials. This is part of that effort.

The invitation closes with a plea. “The higher the participation, the greater the impact we will make with our legislators. This legislative session will involve critical issues to our industry and we need your representation.”

Guess they’re expecting a fight. In year’s past, I have been told, they’ve even brought in some of their big equipment to parade up and down streets leading to the Capitol Building.

Sadly, Not Much Legislation to Get Excited About

Four bills have been filed re: sand mining so far.

The most exciting from a Lake Houston Area resident’s perspective is HB509. State Representative Terry Wilson filed it. It:

  • Requires a hydrology assessment of the operation’s impact on surrounding surface and groundwater – including water availability. 
  • Creates criminal penalties for non-compliance.Enables regulators to consider the cumulative impact of multiple APOs in an area when evaluating new applications.
  • Requires the operation to prevent material damage to the hydrologic balance outside the permit area.
  • Requires public notice of permit applications
  • Provides for public comment on permit applications
  • Makes permit approval contingent on past performance
  • Requires permitting agencies to publish the public comments
  • Allows the agencies to deny permits based on public comments
  • Grandfathers operations with existing permits

HB 907 filed by State Representative Dan Huberty doubles the penalties if sand mines don’t register with the TCEQ. However, most of the problems with sand mining have to do with companies that ARE registered. They are mining in the floodway which contributes to sedimentation during floods. So double the penalties on unregistered mines will create only the APPEARANCE of getting tough on mines.

HB 908, also filed by Representative Huberty, increases penalties for other violations, but calls for inspections once every two years. A lot can happen during that time. I suggested using Landsat photos to supplement monitoring of operations. Landsat flies over Montgomery County sixteen times a day and could spot breeches of dikes in near real time. Seems like it would be more effective, more efficient, and cheaper. But no mention of Landsat appears in the bill.

HB 909 calls for the TCEQ to develop and publish a set of best practices for sand mining. However, it attaches no penalties for violation of them.

I’ve talked to representative Huberty about these issues. He believes regulation should happen in small steps. I believe it should happen before the next big storm.

With the exception of HB506, TACA may have won this fight before it started. The sand miners should have a lot to be thankful for tomorrow in Austin.

As always, these are my opinions on matters of public policy. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP statute of the great State of Texas.

Posted by Bob Rehak on 2/3/2019

523 Days since Hurricane Harvey

Three Baby Steps on Sand Mining Legislation

After Harvey, it became clear that the simplest and most effective way to avoid sedimentation due to sand mining, was to prevent any new sand mining in the floodway. State Representative Dan Huberty introduced three new bills to toughen legislation on sand mines yesterday. But these bills never mention words like river, setback, buffer zone, erosion, sediment, or floodway.

What the Bills Do

HB 907 – Doubles the penalties for not registering a sand mining operation. New penalties can range from $10,000 to $20,000 per year with the total not to exceed $50,000.

HB 908 – Provides for penalties up to $50,000 for water code violations by sand miners and every-other-year inspections by the TCEQ.

HB909 – Calls for the TCEQ to adopt and publish best management practices for sand mines (aggregate production operations) that comply with applicable environmental laws and regulations.

Good…As Far as They Go

HB 907

…is actually an amendment to the portion of the water code that HB 571 established in 2011. HB 571 targeted unregistered and, therefore, unregulated sand mining operations. If you search back through historical satellite photos of the West Fork between I-45 and I-69 in Google Earth, you can see several such bandit mining operations. Miners would take a backhoe and a dump truck down to a point bar. Then they would start mining sand right out of the river banks. The scars can still be seen today in many places.

I haven’t seen many instances, though, of these kinds of operations in the satellite images since the passage of HB 571 in 2011. That’s good news. But it makes me wonder whether the emphasis on un-permitted operations is misplaced. Most problems come from permitted mines, not un-permitted. So this makes it appear as though we’re putting teeth into mining regulation without really solving the big problems, such as mining in the floodway, breached dikes that remain open for years, and abandoning mines without any reclamation.

HB 908

…specifies that all mines will be inspected at least once every two years to ensure that they comply with “all applicable environmental laws and regulations.” The problem: nowhere does the law (or the TCEQ) specify what those are. So a canoeist, for instance, who spots something suspicious, like a backhoe intentionally letting sediment-laden water out of a mine, has no way to tell if the activity is legal or illegal.

One can spend days searching the TCEQ website looking for the regulations they are supposed to enforce.

Sand mine dike just five weeks after a breach.

Also, every-other-year inspections give grass 730 days to grow and cover up the evidence of breaches in sand mine dikes.

Imagine telling your kid to clean up his or her room; you’ll be back to inspect it in two years.

HB-909

… is a good first step. It directs the TCEQ to establish a set of best practices for sand mining and to publish them. However, the bill does not stipulate the type of best practices to include. Nor does it stipulate any penalties for non-compliance.

It’s like the State telling Porsche owners that those 20 MPH speed limits in school zones are a “good idea.”

Bill McCabe, a member of the steering committee of the Lake Houston Area Grass Roots Flood Prevention Initiative, had this to say. “If they don’t list the BMP’s in the statute, nor authorize any penalties for violation of these BMP’s, what good does this do us?  The TCEQ will merely adopt something similar to your BMP’s (the ones I proposed last year); TACA will agree; and everyone will go their merry way with no changes in sand-mining operations.  If we later complain, TACA will assert that these are merely suggestions, and not intended to be law. And even if they are law, there are no penalties.

The Appearance of Meaningful

As these bills work their way through committees and the legislative process, residents will have opportunities to testify about their Harvey experiences, provide comments on the bills, and suggest amendments to strengthen them.

But at this point it looks like an uphill struggle. We’ll be lucky to see any truly meaningful legislation in 2019.

TACA Should Be Delighted

TACA, the Texas Aggregate and Concrete Association, will be delighted by these bills. If these become law in their present form, they will create the appearance of protecting people. That could undermine momentum toward regulation that reduces sedimentation.

As always, these are my opinions on matters of public policy protected by the first Amendment of the United States Constitution and the Anti-SLAPP statute of the great state of Texas.

Posted by Bob Rehak on 1/18/2019

508 Days since Hurricane Harvey

First Proposal to Improve Sand-Mine Regulation in House

On December 11, 2018, Texas State Representative Terry Wilson introduced HB509. HB509 is a bill to regulate aggregate production operations (APOs). APOs include sand mines.

HB509 Stipulates Consideration of Hydrologic Impact During Permitting

Currently, sand mines in Texas are permitted and inspected by the Texas Commission on Environmental Quality (TCEQ).

New legislation proposed by Representative Terry Wilson of Marble Falls would require regulators to consider hydrologic impacts of sand mining during the permitting process.

HB509 enables the Texas Railroad Commission to work with the TCEQ; adopt, amend and enforce rules pertaining to aggregate production operations; issue and revoke permits; and inspect APOs without notice. It also:

  • Creates criminal penalties for non-compliance.
  • Requires a hydrology assessment of the operation’s impact on surrounding surface and groundwater – including water availability.
  • Enables regulators to consider the cumulative impact of multiple APOs in an area when evaluating new applications.
  • Requires the operation to prevent material damage to the hydrologic balance outside the permit area.
  • Requires public notice of permit applications
  • Provides for public comment on permit applications
  • Makes permit approval contingent on past performance
  • Requires permitting agencies to publish the public comments
  • Allows the agencies to deny permits based on public comments
  • Grandfathers operations with existing permits

New Fines and Creation of a Criminal Offense

A person commits an offense if the person “knowingly makes a false statement, representation, or certification, or knowingly fails to make a statement, representation, or certification, in an application, record, report, or other document filed or required to be maintained under this chapter or under an order of decision issued by the commission under this chapter.”

Violators may be punished by fines of up to $10,000 and a year in prison.

Positives of HB509 from Residents’ Perspective

While this bill will not immediately and directly address sand-mine issues on the San Jacinto, I think it could eventually help this area. Things residents will like include:

  • Significant penalties for false statements!
  • Having more eyes on the problem; TCEQ complains that it doesn’t have enough staff to enforce regulations.
  • River-impact assessments, especially the idea of looking at the cumulative impact of all providers in the area! Twenty square miles of sand mines between US59 and I-45 on the West Fork have decimated the environment immediately upstream from the drinking water source for 2 million people.
  • Public hearings for permits. Right now, regulators hear one side of the story.
  • Making the permit application approval contingent on past performance. This gives sand miners the ultimate incentive to comply with regulations: “Don’t comply and you’re out of business in this state.”

Shortcomings From Residents’ Perspective

Things residents probably won’t like include:

  • Grandfathering existing operations; the cumulative impact of sand mining is already a huge problem on the San Jacinto. However, I’m not sure a fair alternative exists, short of buyouts.
  • Lack of definitions for what they’re trying to prevent under “hydrologic impact.” That creates flexibility to cover unforeseen consequences, but also leaves a huge “out.” HB571 in the 2011 session, the first bill to regulate sand mining in Texas, also lacked specificity. It said for instance that the mines had to comply with all applicable laws and regulations, but did not specify what they were. It left lots of wiggle room. This could, too.
  • No prescription for minimum setbacks from rivers or prevention of mining in floodways.
  • Use of the words “designed to” in front of hydrological impacts. That creates a big “out.” Anybody who places a bale of hay in drainage ditch on the mine could say he designed the drainage to prevent erosion, However, the real issue is what happens when the river reroutes itself through mines during a flood.

Lack of Specificity Concerning Hydrologic Impact

My biggest concern is the lack of specificity re: adverse hydrologic impacts. No references exist in the bill to:

  • Dangers of river migration
  • River capture of sand pits
  • Draw down of the water table
  • Effects of such drawdowns on surrounding vegetation and farms
  • Repeated breaches of dikes
  • Increases in rates of sedimentation
  • Loss of downstream lake capacity at increasing rate
  • Poor water quality
  • Loss of river conveyance
  • Increases in erosion
  • Escape of chlorides from wash pits during floods
  • Contamination of groundwater and wells by chlorides
  • Pipeline corrosion
  • Loss of riparian vegetation
  • Downstream flooding
  • Eventual need for dredging and other costly remediation.

All in all, though, it’s a good start and can only help curb the excesses of sand mining in the long run.

Read the bill in its entirety. Here is the current text of proposed House Bill  509 for 2019.

About Congressman Terry Wilson

Congressman Wilson represents the area west of Austin. His district includes Burnet, Milam and Williamson Counties and the cities of Round Rock and Marble Falls. His web page in the House of Representatives states that he was born in Odessa, Texas, and that “He is a lifelong conservative Republican, committed husband and father, and a decorated combat veteran. He holds a BS in Business Administration from Texas A&M University and an MS in Strategic Logistics Plans and Management from the Air War University.”

Wilson retired from the Army after serving more than 30 years. Since retiring from the Army, he has leveraged his military experience as an advocate for small businesses.

No Other Bills Filed in House or Senate So Far

Neither Representative Dan Huberty, nor Senator Brandon Creighton, have so far introduced any new legislation affecting sand mining. Wilson’s HB509 appears to be the only bill regulating sand mining filed so far in either the House or Senate as of Christmas Eve, 2018.

As always, these are my opinions on matters of public policy. They are protected by the First Amendment of the United States Constitution and the Anti-SLAPP statute of the Great State of Texas.

Posted by Bob Rehak on 12/24/2018

482 Days after Hurricane Harvey