Expert Witnesses Model Surprising Flood Risks in Sand Mine Lawsuit

The case of Emil C. Shebelbon, II v. Upstream Holdings, LLC ET AL (Montgomery County Cause No. 15-10-10710) provides fascinating new insights into how sand mines can affect flooding. This case is NOT about broken dikes, unauthorized discharges of sediment-laden water, or mines inundated by super-storms such as Hurricane Harvey. It involves the opposite of all those things. Yet it still has implications for state regulations – or lack thereof. Specifically, I’m talking about setbacks of mines from rivers, lack of best management practices, reclamation of mines after the completion of mining and monitoring of floodway development.

All of the mines around Shebelbon’s property (bottom center) lie completely within the West Fork floodway (cross-hatched area). Development in floodways should not impede flow.

Defendants in this case appear to have filled in or walled off more than 200 acres of floodway property north of Shebelbon. That should have raised eyebrows from Washington to Conroe City Hall, but didn’t.

Two sand mines north of Shebelbon occupy more than 200 acres of floodway. The one closest to I-45 has been abandoned without remediation. Mining debris still litters the site. Shebelbon’s property lies immediately to the south, across the river.

Plaintiff’s Property Did Not Fill Floodway

The plaintiff in this case, Emil Shebelbon, purchased approximately 200 acres of land on the southwest corner of the San Jacinto West Fork and I-45 North about 20 years ago. He operates a motorsports facility there with dirt tracks and jumps for cyclists. Most of his land is in the floodway at the original level. He did not bring in fill. However, he did push some dirt into mounds to create the jumps. Very little impervious cover exists. It resembles a park. If you were going to build a business in the floodway, this is one of the few you might consider. It does not obstruct floodwater.

Increase in Flood Frequency, Depth and Erosion

When Shebelbon bought his land, everything north of him was farm, ranch or forest land. Then one mine came in and another. They expanded and started building up their property or walling it off from the floodway with dikes.

Shebelbon soon started to notice an increase in the depth and frequency of floods. He also started to lose land to erosion during statistically small floods.

Allegations in Lawsuit

Shebelbon’s lawsuit alleges that:

  • Mines blocked half of the floodway, forcing their flood water south onto his property, a violation of state law.
  • Cutting the floodway width in half forced floodwaters up to 3-4 feet higher on his property.
  • The increased flow in a smaller area increased the velocity of floodwaters.
  • That increased what hydrologists call “sheer stress,” the force necessary to start erosion.

Modeling showed shear stresses increased upwards of 0.5 pounds per square foot. The hydrologists claim that’s enough to cause substantial land and bank erosion near and within the Shebelbon Property. That, in turn, widened the river, eroding Shebelbon’s property, they say. Shebelbon estimates he lost seven acres due to erosion caused by constriction of the floodway (see photos below).

The mine north of Shebelbon’s property on the San Jacinto West Fork. Shebelbon’s property is out of frame to the right, underneath the nose of the helicopter. To visualize the height of the dikes, compare activity in the red circle with the following photo.
A dredging expert estimates that the height of the berm at this point is 50-60 feet based on the size of the dredge. Note: this photo and the one above were taken on April 21, 2020, more than a year after the hydrologist’s study. Dikes here are likely taller than 2018 LIDAR data in the study indicates.

Federal, state, county, and city regulations all prohibit restricting the conveyance of floodways. So how did this get permitted? That will be the subject of another post.

Court documents show that the mines deny any connection to Shebelbon’s damages. They issued simple, general denials and are fighting Shebelbon tooth and nail.

Surprising Expert Witness Testimony

Shebelbon, however, has produced hundreds of pages of expert witness testimony to support his claims. This 197-page document downloaded from the Montgomery County Clerk’s office contains the testimony of several experts. For this post, I’m focusing on Exhibit E-22: Flood Impacts from Surrounding Activities, prepared by Dr. David T. Williams and Dr. Gerald Blackler. Their testimony and credentials run from pages 19 to 101 of the PDF. (Caution: 19 mb download.)

Surprisingly, experts for the plaintiff found that the problem is most visible in smaller floods, i.e., less than 18-year floods. 100-year floods can overtop dikes and spread out. But smaller floods cannot.

Despite hundreds of posts on the relationship between sand mining and flooding, I have not previously focused on the phenomenon described by these experts. But every flood expert I talk to – at local, county and state levels – says their findings make perfect sense.

Looking west. Compare height of dikes on right with river bank on left by Shebelbon’s property. Photo 11/2/2020. Also note how little flood storage capacity is left in ponds.
This abandoned sand mine virtually blocks TxDoT’s auxiliary bridge on the north side of the river (upper right). TxDoT commonly uses such auxiliary bridges to convey water in floodplains. Photo 11/2/2020.

Public-Policy Concerns Raised by Shebelbon

Shebelbon’s case has not yet gone to trial. But I see similar situations every time I get in a helicopter. Together, they raise some disturbing public-policy issues. For instance:

  • Do we need greater setbacks of mines from rivers? Greater setbacks would allow greater expansion of floodwaters and help protect neighboring properties.
  • Do we need a comprehensive set of best management practices for sand mines that cover reclamation and abandonment? Restoring the natural floodplain instead of leaving an elevated mine next to the freeway might have prevented some of Mr. Shelbelbon’s damages.
  • What happens when local officials turn a blind eye to those apparently violating regulations? Is there a higher authority to enforce compliance – short of expensive lawsuits?

Hopefully, the TCEQ or State Legislature can address these questions. But it won’t happen without public pressure.

I would simply ask.

Why should miners’ property rights outweigh those of a neighboring business or resident?

Food for thought as we approach the upcoming legislative session!

Posted by Bob Rehak on 11/4/2020

1163 Days after Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

Harris County Commissioners Vote to Explore Using Flood-Bond for Maintenance, Possibly Floating Another Bond

At the October 27, 2020 Harris County Commissioners Court meeting, Precinct 2 Commissioner Adrian Garcia introduced a motion from the floor to explore using flood bond funds for maintenance projects. The motion was not on the agenda, nor did he circulate it before the meeting. It caught some commissioners off guard. Minor changes in wording between what the motion said, and how Garcia and Commissioner Rodney Ellis described it, will keep court watchers guessing about their true intent.

Harris County Precinct 2 Commissioner Adrian Garcia

In the end, the motion passed. It didn’t commit commissioners to anything more than conducting a survey and exploring options. However, last Tuesday’s discussion gives voters a peak over the horizon. It reveals what commissioners think and how desperate some are to find new sources of revenue rather than reign in runaway spending.

Garcia Explains Rationale for Motion

View the discussion yourself online. Click on Departments (Part 4 of 5). Start at approximately 4:21 into that segment. Below is a close transcription.

Adrian Garcia: The flood control district has developed the future operations and maintenance needs for the projects that the district will be constructing using the bond program. The overall need for the next 10 years is ninety seven million, with an average annual budget increase need of approximately 10 million per year. Major infrastructure that the control district owned and maintained are detention ponds, earthen channels, concrete channels, and outfall. It’s extremely important that the county funds the proactive maintenance and deferred maintenance for all Harris County owned infrastructure.

I see the spreadsheet that the district has submitted for their 10-year, cost-increase projections for bond projects and growth only as of 10/16 of this year. I am curious as to why some of the heavy equipment, the vehicles, management software implementation, the customer service, the (garbled) software, large repair projects, why these couldn’t be paid out of the bond funding [Emphasis Added, see below] versus using general-fund dollars?

And so I’d like to propose a motion that would touch on the customer-service satisfaction aspect of the flood control district. (Interruption) …

…so the customer-service satisfaction model, the risk-based model and the deferred-maintenance model.

Garcia Proposes Motion

Adrian Garcia:  And so my proposed motions would read that Harris County flood control district should perform a customer satisfaction survey for deferred maintenance and services to develop the maintenance cycle and overall maintenance budget needs.

The flood control district should develop an overall condition assessment for the infrastructure and based on the risk of failure and risk of potential flooding, the flood control district should develop a prioritized criteria and maintenance-needs budget and the Harris county flood control district needs to take a comprehensive look at the condition of all existing infrastructure and identify maintenance needs that have been deferred for years due to budgetary or any other reason. There are many areas where repair work can be significantly large and may also qualify for a capital project. And the Budget Management Department needs to evaluate if we can fund this through a bond program [Emphasis Added, see below].

So that’s the motion I’d like to propose.

Judge, just make sure that we’re not forgetting how to maybe better deal with the O&M (operations and maintenance) side of the Flood Control District’s operations.

Ellis Wants Maintenance Tied to “Equity” Scheme

Rodney Ellis: Second.  It also brings to my mind the question of, “How much of the flood bond money was spent before we adopted the equity guidelines?” 

Harris County Precinct One Commissioner Rodney Ellis

Matt Zeve (Deputy Exec Director, HCFCD): Yes, sir, Commissioner. My staff and I are working on getting those numbers over to you by the end of the week, plus all the other questions that you asked us to dig into. We plan to have that over to you before the end of the week.

Rodney Ellis: And Commissioner (Garcia), I only ask because it relates to the issue. Let’s say if a half a billion, five hundred million was spent before we adopted equity guidelines, I know the city is trying to get us to do some swap. They don’t have equity guidelines as it relates to that … some other project in another county … and I’m going to propose that they give us a recommendation or I’ll come up with one so that we make up a project that will fund it in the absence of equity guidelines, possibly in an equitable way. And money was taken off the top while we were coming up with guidelines, and I want to compensate for that going forward. And that ties in with what you’re doing today.

Hidalgo: So there’s a motion and a second… 

Cagle Objects Because Motion Isn’t in Writing

Cagle: Was it sent around, Judge? (Meaning, “Was the motion circulated so that commissioners could see in writing what they were voting for?”)

Adrian Garcia: It’s coming around now, Commissioner.

Cagle: I’ll hold off until I see it. 

Hidalgo: We can circle back (before taking a vote).

One Hour Later, Motion Passes

Approximately an hour later, at time code 5:23:50, Hidalgo finally circles back to Garcia’s motion.

Commissioner Jack Cagle asks Commissioner Garcia if he discussed his motion with the leaders of the flood control district. Answer: “Some of it.”

Cagle then states, “It’s asking for an assessment. I don’t have an issue with that.”

Commissioner Radack asks whether it could be implemented without coming back to court.

Robert Soard, speaking for the County Attorney’s office, says that any action on the survey would have to come back through Commissioner’s Court for a vote.

Garcia restates the motion, but this time the wording differs slightly: To direct the Harris County Flood Control District to perform a customer satisfaction survey for deferred maintenance and services (i.e. mowing, desilting, etc.) to develop the maintenance cycle and overall maintenance budget needs, to develop an overall condition assessment for the Infrastructure and based on the risk of failure and risk of potential flooding, HCFCD should develop a prioritization criteria and maintenance needs budget and to take a comprehensive look at the condition of all existing infrastructure and identify maintenance need that has been deferred for years due to budgetary or any other reason. There are many areas where repair work can be significantly large that may also qualify for a Capital Project and Budget Management Department need to evaluate if we can fund these through a Bond Program.

Ellis seconds it again. The motion passes.

Text of Flood Bond That Voters Passed

The words “maintenance” and “operations” appear nowhere in the bond language approved by voters.

Under Texas law, bond funds from the 2018 referendum can only be used for purposes approved by the voters.

However, as Commissioner Garcia alludes to in the final sentence of his motion, some maintenance projects are so large that they could legitimately be characterized as capital projects. In fact, the 2018 Flood Bond contained three such projects:

  • F-53 $40 million for “Rehabilitation of Channels Upstream of Addicks Reservoir to Restore Channel Conveyance Capacity”
  • F-52 $20 million for “Rehabilitation of Approximately 20 Miles of Channels Upstream of Barker Reservoir to Restore Channel Conveyance Capacity”
  • CI-012 $60 million for “Major Maintenance of Cypress Creek and Tributaries”

Before the 2018 Bond Election, Harris County Flood Control had only a $120 million budget for maintenance, half of which it spent on capital projects. So you can see that those three maintenance projects would have consumed the entire annual maintenance budget by themselves. Clearly, they fall into a gray area.

The three projects above fall under language in the flood bond that allows “channel improvements.” Also HCFCD publicized them as potential projects before the vote.

Is It Wise to Pay for Maintenance With Bond Money?

Ordinarily, it’s a bad idea to pay for maintenance out of 30-year bond funds.

Mr. Garcia’s introduction of the motion mentioned things not in the motion. For instance:

  • Vehicles
  • Software
  • Customer service

The County should never, in my opinion, pay for those with a 30-year bond. Neither should the bond pay for mowing, which WAS in the motion.

It’s literally like taking out a mortgage to cut your grass. A week later, you’re back where you started and saddled with 30 years of debt.

A New Bond?

Above, I bolded “THE BOND” and “A BOND.” At first, Commissioner Garcia said he wanted to use money from THE BOND (meaning the 2018) bond to pay for some maintenance items. But his actual motion refers to “A BOND.”

That’s certainly a strange way to refer to the historic flood bond passed in 2018. It sounds as though he’s laying the groundwork to float another flood bond.

Rodney Ellis’ rush to second the motion supports the second interpretation. For months, Ellis has consistently carped that there won’t be enough money in the 2018 bond to do all the projects that need doing.

Ellis, Equity Flap and Elm Grove

That’s why Commissioner Ellis redefined “equity” earlier this year. The 2018 Flood Bond specified “equitable distribution of funds.” 88% of people throughout the county voted for that language – thinking they would get their fair share of flood bond money. However, Commissioner Ellis redefined the word to favor the socially vulnerable and penalize others.

Now, Ellis seems to be linking help for Elm Grove to the City of Houston’s adoption of “equity guidelines” comparable to his. He said, “I’m going to propose that they give us a recommendation or I’ll come up with one…” Then he added, “That (meaning equity) ties into what we’re doing here today.” Literally, they are conducting an inventory of maintenance needs and developing a prioritization framework for it.

That framework will no doubt be used to ensure distribution of maintenance dollars according to Mr. Ellis’ definition of equity.

Posted by Bob Rehak on 11/3/2020

1162 Days since Hurricane Harvey

Hurricane Eta Now Predicted to Re-emerge over NW Caribbean

The Monday 10am update from the National Hurricane Center (NHC) on Hurricane Eta now predicts the storm will slam Central America then re-emerge into the Caribbean over the Bay of Honduras in the NW Caribbean.

Beyond 96 hours (Saturday), it’s uncertain what the storm will do.

NHC Predicts Cat 4

Eta has become an impressive November hurricane as it continues to undergo rapid strengthening. Low vertical wind shear and warm sea surface temperatures ahead of Eta are expected to allow for continued rapid strengthening during the next 12 to 24 hours. The updated NHC = forecast now calls for Eta to become a category 4 hurricane before it nears the coast of Nicaragua. After landfall, Eta should quickly weaken while it moves over the mountainous terrain of Central America.

Although Eta’s low-level center may not survive after being inland over Central America for so long, most of the global models depict a cyclone over the northwestern Caribbean Sea later this week and into the weekend which appears to develop from at least a part of Eta’s remnants, and the new NHC track forecast shows the system emerging over the northwest Caribbean Sea after 96 h.

However, the uncertainty in the long-range portion of the forecast remains quite high.

Key Messages

  1. Eta is forecast to strengthen to a major hurricane very soon, and additional strengthening is likely before it reaches the northeastern coast of Nicaragua on Tuesday. Catastrophic wind damage is expected where Etas eyewall moves onshore, and preparations should be rushed to completion within the Hurricane Warning area.
  2. Through Friday evening, heavy rainfall from Eta will likely lead to catastrophic, life-threatening flash flooding and river flooding across portions of Central America, along with landslides in areas of higher terrain. Flash and river flooding is also possible across Jamaica, southeast Mexico, El Salvador, southern Haiti, and the Cayman Islands.
  3. A potentially catastrophic and life-threatening storm surge, along with battering waves, is expected along portions of the northeastern coast of Nicaragua near and to the north of where the center makes landfall. Water levels could reach as high as 12 to 18 feet above normal tide levels in some parts of the hurricane warning area. Preparations to protect life and property should be rushed to completion.

Posted by Bob Rehak on 11/2/2020

1161 Days since Hurricane Harvey

It’s Official; 2020 Ties Record For Most Tropical Events in Recorded History

Tropical storm formed in the central Caribbean Sea late yesterday and tied a record going back 170 years.

28th Storm of Year

Eta became the 28th tropical storm of the 2020 hurricane season and tied 2005 for the most tropical storms in an Atlantic hurricane season since records began in 1851.

Satellite images show the system still lacks any defined inner core.

Tropical Storm Eta formed late yesterday in the central Caribbean.

“Eta is a fairly large system,” says Harris County Meteorologist Jeff Lindner, “and such systems generally take time to consolidate and develop. Eta is moving westward and this motion is expected to continue for the next 72 hours.”

Hurricane Threat to Nicaragua and Honduras Tuesday

On its current track, Eta should slam into Nicaragua and Honduras Tuesday morning. The National Hurricane Center (NHC) predicts Eta will intensify into a hurricane on Monday. NHC also predicts heavy rainfall and flash flooding through Thursday, with landslides in higher elevations.

Fading High-Pressure Ridge Creates High Uncertainty Beyond 72 Hours

Eta is under the influence of a high-pressure ridge that extends from the Atlantic Ocean to near Cuba, which is forcing the system toward the west. After landfall, the system should significantly slow down as the high pressure ridge begins to weaken. “The main question,” says Lindner, “will there be enough of a defined system remaining to get pulled northward over the western Caribbean Sea and potentially the SE Gulf of Mexico. Given the expected land interaction and general slow motion beyond 72 hours, the confidence in the forecast for later this week is lower than average. Adjustments in the track are likely over the next several days.”

Intensity 

“There could be a period of rapid intensification prior to Eta making landfall over central America,” adds Lindner.

The Houston Area has been extremely lucky this year. Only one storm flooded only part of the City. Just to our east, Louisiana endured direct impacts from five storms.

Posted by Bob Rehak on 11/1/2020 based on info from HCFCD and NHC

1160 Days since Hurricane Harvey

Sand Miners Donate 117 Acres of Unspoiled Wetlands Along Spring Creek to Bayou Land Conservancy

Often, I post about sand mines or developments that encroach on floodplains and floodways to the detriment of people downstream. But when I learned of this story, it made me extremely happy. The Bayou Land Conservancy (BLC) announced last week that Joe Swinbank and Don Poarch, partners at Sprint Sand & Clay, have donated 117 acres of unspoiled wetlands to the organization. The land borders Spring Creek in Tomball, north of Lone Star College and Harris County Precinct 4’s Spring Creek Park. It will have a significant impact on conservation, according to the BLC.

Natural wetlands on the tract donated to BLC by Swinbank and Poarch. This and all photos below are courtesy of the Bayou Land Conservancy.

“We are excited to own this ecologically rich nature preserve that will help us connect the community to the benefits of land conservation”, said BLC board chair Lisa Lin. “This donation will benefit the community for many generations, and be an enduring legacy of the incredible generosity of Mr. Swinbank and Mr. Poarch.”

Spring Creek meanders along the property’s southern border.
Ecologically rich wetlands such as these help retain water during floods, reducing the impact on downstream residents.

Land Originally Purchased for Mining

“As the greater Houston area continues to grow at a rapid pace, striking a healthy balance between land preservation and land development has never been more important as we seek to protect the many economic and community benefits we all enjoy,” Swinbank said. “The Bayou Land Conservancy’s extensive network of preserved trails and waterways just minutes from Houston is impressive in its form and function—a model of what can be achieved when community stakeholders work together. We’re proud to partner with the Conservancy to continue these important environmental efforts and extend BLC’s preserved trails and waterways west into the Tomball area.”

Don Poarch echoed his partner’s sentiments in acknowledging the award.  “We’re grateful for the recognition as this year’s Conservation Champions and happy to continue to champion the BLC and its important mission to preserve these lands for natural flood control, cleaner water and wildlife protection,” Poarch said. “On behalf of our entire team at Sprint Sand & Clay, Joe and I hope this land along Spring Creek enhances the community with protected green space while providing beautiful trails and waterways for people to reconnect with nature and each other.”

Family History Led to Donation

Beyond the positive environmental and community impact, the land in Tomball has personal significance to Swinbank and his family. “My wife was raised in the area, and her extended family has deep roots in Tomball and Rosehill going back to the area’s original German settlers,” Swinbank added. “My family and I couldn’t be happier that the Conservancy will ensure this land is preserved and protected for generations to come.”

Location of new preserve

Online Gala to Honor Conservationists Nov. 13

BLC will honor Swinbank and Poarch at its annual Annual Land Lover Gala as Conservation Champions. The Gala will be held virtually this year from 6-7 pm on Friday, November 13th. More information about the event can be found here. Wildlife film maker Ben Masters will be the keynote speaker. Mark your calendar.

No-Cost Gala Great Way to Learn More About BLC

Because of COVID, BLC’s net proceeds will likely be down this year. There’s no cost to attend the virtual event. “We’d just like to encourage people to join us,” said Jill Boullion, Executive Director of the BLC.

On a personal note, I will say this. The Bayou Land Conservancy and its committed staff stand tall among many worthy conservation groups in the Lake Houston Area. Their cooperative strategy is simple.

They put conservation easements on environmentally important land that is bought or donated so that it serves its natural function. They make a huge difference and deserve everyone’s support.

Bayou Land Conservancy protects land along streams for flood control, clean water, and wildlife. BLC is a nationally accredited, community-sponsored land preservation organization working to permanently protect land, with a focus on the streams that feed Lake Houston, an important source of drinking water for millions in the region. More information is available at: www.bayouland.org.

Posted by Bob Rehak on 10/31/2020

1159 Days since Hurricane Harvey

Submitted Your Sand Mine Testimony Yet?

Today, October 30, 5:00 p.m. is the deadline to send testimony to the Texas House of Representatives Interim Committee on Aggregate Production Operations (APOs). The committee is looking into production practices of sand mines and other types of APOs across Texas.

Write About Your Experience

Written comments will be evaluated and considered by the committee when they make their decisions.

If you haven’t yet submitted comments, please take time to put something together—even if it’s just a few paragraphs!

Write about how YOU personally have been or will be impacted by sand mines. Pick one or two of these key issues that will most affect you personally:

???? Air quality
???? Water quality, use and availability
???? Surface and ground water contamination and flooding
???? Rapid development of APOs without adequate regulatory oversight, mine planning, or reclamation
???? Truck traffic
???? Nuisance issues: blasting, noise, odor, visible blight
???? Economic impacts, devaluation of property

How to Submit Comments

When you are ready to submit your testimony, email it to jeff.frazier_hc@house.texas.gov (jeff DOT frazier UNDERSCORE hc) or press the link below. Make sure to include:

  • Your name
  • Address
  • Phone number
  • Testimony in attachment (PDF preferred, Word Document OK, preferably five pages or less)

Deadline is 5:00 p.m., Friday, October 30, 2020.

EMAIL YOUR TESTIMONY

Not Choice Between Growth and Safety

Sand mining is necessary to make concrete and support growth. No one wants to put sand miners out of business. People do, however, have legitimate issues with egregious sand-mining practices.

They want sand produced in a manner that respects public safety, health, homes, and the environment.

Since starting this website I have created more than 200 posts about problems with the way sand mining is actually practiced in the Houston Area, and how dangerous practices contribute to flooding. To learn more, use the search phrase “sand mines” or see the index page. Here are some examples.

Sand mining in floodways on West Fork
Discharging industrial waste water into the public drinking water supply
Another discharge of industrial wastewater into the headwaters of Lake Houston
Failure to stabilize soil or restore land to alternative us after abandonment of mine.
Mining too close to natural gas pipeline and exposing it
Endangering five pipelines carrying highly volatile liquids near the West Fork San Jacinto
West Fork sand dune deposited during Harvey downstream from 20-square miles of mines in floodway. It contributed to the flooding of more than 7,000 structures.
River mining without a permit
Flooding adjacent property with floodwater
Barely plugged breach near LMI mine on West Fork
Pumping wastewater into wetlands

Don’t tolerate sand-mining practices that jeopardize your home, family and community. Write today.

Posted by Bob Rehak on 10/30/2020

1158 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.

Sand Miner Takes Over Troubled Porter Mine While Still Violating TCEQ Regs at Plum Grove Mine

A year after the Texas Commission on Environmental Quality (TCEQ) filed a notice of enforcement against a Plum Grove sand miner named Somaiah Kurre, it appears that Kurre still has not complied with TCEQ regulations to restore his abandoned mine. However, he has found time to take over operations at the troubled Triple PG Sand Mine in Porter. The Texas Attorney General is already suing the Porter mine. This raises two serious public policy issues.

Should miners who leave behind environmental issues at one site be allowed to operate another before fixing problems at the first?

Permits Without Performance

It also calls into question state regulations that allow sand mines to obtain operating permits without forcing them to restore mines to nature or alternative uses when done.

Other states force mines to post performance bonds for reclamation before issuing the initial permit to construct a mine. If they restore the land when done mining, they get their money back. If they don’t, the state can use it to cover the cost of cleanup without forcing taxpayers to foot the bill.

Performance bonds are common in the construction industry.

Texas should adopt a performance-bond policy. This case shows why.

Texas regulations state only that a mine needs a reclamation plan to get a permit. However, there are no regulations stating they must execute the plan.

When unscrupulous operators are done mining a site, there’s no reason for them to invest another penny in it.

Texas needs performance bonds and/or a “toxic legacy” law. Companies that abandon unsafe mines should be forbidden to operate anywhere else in the state. They just can’t be trusted.

Troubled History In Plum Grove

Texas Concrete Sand and Gravel, Inc., one of Mr. Kurre’s 16 companies, has a troubled history at its Plum Grove location. Before October 2019, TCEQ investigated it nine times for 17 alleged violations in four years. Twelve involved unauthorized discharges of industrial waste.

Previous alleged violations included failure to:

  • Prevent unauthorized discharge of industrial waste (7 investigations plus 5 complaints)
  • Renew registration
  • Document steps taken to address benchmark exceedances
  • Comply with record keeping and reporting requirements
  • Maintain compliance with permitted numeric effluent limitations
  • Sample water quality at designated outfalls.

Abandoned Without Compliance After Imelda

During Tropical Storm Imelda in September 2019, the mine’s dikes breached in four places. The mine discharged industrial wastewater and sediment into the San Jacinto East Fork. The East Fork empties into Lake Houston, the source of drinking water for 2 million Houstonians.

The company eventually fixed the breaches, but cancelled its Multisector General Permit (MSGP) and Aggregate Production Operation (APO) registration.

A company spokesperson told TCEQ investigators that the company had ceased all operations at the site.

However, the TCEQ report notes that terms of Texas-Concrete-Sand-and-Gravel’s permit still obligated the company to stabilize soil on the site or return it to an alternative post-mining use. A year later, that still hasn’t happened. Large portions of the site remain barren and disturbed.

No visible attempt has yet been made to stabilize soil, restore the land that needed it, or convert the site to an alternative use. So the company is still violating terms of its permit.

An excavator, dredge, shed, other abandoned equipment, plus bacteria- and scum-laden ponds remain. See photos below.

Photos Taken 10/25/2020

Abandoned stockpile shows signs of recent activity.
After a year with supposedly no activity, you would think some of this water would have clarified. Can you spot the five different colors of water in different ponds?
Dredge has not moved in months.
Working parts of dredge are crusted with rust.
Large part of site not stabilized. Tracks show trucks entering and leaving the mine, taking sand from the mine’s stockpile. But no signs or permits are posted at the site.

Provisions of Regulations and Permit

The requirements of the Texas Multi-Sector General Permit (MSGP) run more than 166 pages. But a TCEQ spokesperson summarized the relevant portions this way.

“The MSGP contains requirements … to terminate permit coverage after mining activity has ceased. The operator must demonstrate they have accomplished the final stabilization requirements: 1) completion of soil disturbing activities, 2) stabilization to minimize soil erosion, 3) ensuring stormwater runoff does not contribute to a violation of water quality standards, and 4) the site has been revegetated or left in the condition consistent with post-mining land use such as a nature park or lakes.”

“When operators have achieved final stabilization, they must submit a Notice of Termination which has been signed and certified by the responsible signatory authority as described in 30 TAC §305.44,” said the spokesperson.

The TCEQ spokesperson also said that Kurre, who fancies himself a startup impresario, is trying to negotiate payment terms for a $19,036 fine that TCEQ levied against him on April 14, 2020.

Encore Performance?

Meanwhile, another of Kurre’s companies, Texas Frac Sand Materials Inc., has taken over operations at the troubled Triple PG Sand Mine in Porter. It appears from a 9/8/2020 TCEQ investigation of that location that Kurre will operate, not own the mine.

The First Amended Petition in the Triple PG lawsuit by the Attorney General shows that Kurre took over operations at the Triple PG mine in April. However, the amended petition did not specify who the new operator was at the time.

The Texas Attorney General is suing the owners of the Triple PG Mine for more than a million dollars, plus up to $25,000 per day for the period that the mine discharged industrial wastewater into the headwaters of Lake Houston. Yep. Does this sound familiar? The Triple PG case (Cause No. D-1-GN-19-007086 in Travis County) has not yet gone to trial.

Ironically some of the alleged violations that the TCEQ charged Mr. Kurre with in Plum Grove are identical to the charges that the Attorney General lodged against the Triple PG mine in Porter.

The Many Faces of Somaiah Kurre

A search for corporate listings associated with Kurre’s name in the Texas Secretary of State database shows that he controls – wholly or partially – 16 businesses.

  1. Manjari Enterprises LLC
  2. Texas Concrete Enterprise, L.L.C.
  3. Asam LLC
  4. Texas Concrete Enterprise – II, LLC
  5. Shree Radha, LLC
  6. Texas Concrete Enterprise – IV, L.L.C.
  7. Texas Concrete Sand and Gravel, Inc.
  8. Plum Grove Material, Inc.
  9. Rohini Enterprises Inc.
  10. JSR Materials, Inc.
  11. Bright Star Stores, Inc.
  12. US Readymix Inc.
  13. US Fracsand, LLC
  14. Rama Krishna 2, LLC
  15. Texas Frac Sand Materials, Inc.
  16. Texas Concrete Sand and Gravel Enterprise, Inc.

Along the East Fork, Kurre owns or operates mines in San Jacinto, Liberty, Montgomery and Harris Counties. That possibly qualifies him as the largest operator on the East Fork.

Toxic Legacy?

Note unusual blue-green color in pond – a likely indicator of potentially dangerous bacteria.

According to the TCEQ, the color of that blue-green pool on the right in the photo above indicates that it is likely filled with cyanobacteria. Cyanobacteria can produce cyanotoxins. And the CDC says that cyanotoxins are “among the most powerful natural poisons known. They can make people, their pets, and other animals sick. Unfortunately, there are no remedies to counteract the effects.”

Pond near entry road.
Not quite a nature park! Texas Concrete’s legacy in Plum Grove. No identifying signs or permits are posted at the entrance to the site, despite the truck traffic.

Sites like this can unnaturally accelerate the buildup of sediment dams in rivers. Not only do they expose sand, they expose it in the floodways of rivers and streams. After Imelda, a huge sand bar set up at the mouth of the San Jacinto East Fork . It contributed to flooding of nearby residents. The public will have to pay to remove it.

East Fork Mouth Bar after Imelda. Before Imelda, this area was 18 feet deep. Boaters say the deepest part of the channel is now three feet.

Posted by Bob Rehak on 10/29/2020

1157 Days after Hurricane Harvey and 405 since Imelda

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

October 2020 Regional Flood Mitigation Update

Flood mitigation is a complex process with hundreds of moving parts, all dependent on each other. When you focus intensely on the pieces, periodically it helps to review how they fit together. Only when you do this can you see progress toward your goals. In that spirit, I created this presentation. It has a Kingwood slant, but really addresses the whole Lake Houston Area. Everything connects.

What Caused Flooding

First, let’s look at what caused the flooding during Harvey and other recent storms…apart from record rainfalls.

The rain fell on a landscape that was ill-prepared the handle it.

Look at flooding like a process engineer. There’s always a bottleneck in the system somewhere between the sky and Galveston Bay. Both local and regional issues contributed to the magnitude of the Harvey and Imelda disasters.

Underestimating Rainfall Meant Underpreparing

When we built communities, such as Kingwood, we underestimated the amount of rainfall we could get. After four so-called 500 year rains in five years, we’re now working with higher rainfall precipitation frequency estimates (called Atlas 14). For this area, the 100-year rain is about 30-40% higher than the previous standard. That means floodplains will soon expand when new flood maps are released. Some people in the 500-year floodplain will find themselves in the 100-year. And people in the 100-year may find themselves in the floodway of rivers and streams. Unless we do something.

Lake Conroe Release Coincided with Downstream Peaks

On top of record rainfalls, during Harvey, the SJRA released water from Lake Conroe at a time that coincided with downstream peaks from other tributaries. The release by itself would have created the ninth largest flood in West Fork history. It comprised about one third of all the water coming down the West Fork.

Population Growth in MoCo

On top of that, Montgomery County has seen tremendous population growth in the last decade. Conroe was the fastest growing city in America in 2017 and is still #6. The county itself is the second fastest growing in the region.

Bad Development Practices

Combine the rapid growth in impervious cover with bad development practices and you are laying the groundwork for disaster. The bad development practices include lack of detention, clearcutting huge areas before detention is installed, and calculating detention for the old rainfall standards knowing that higher standards will soon go into effect.

Out-of-Control Sand Mining

To pave the way for all that development, we’ve seen a huge increase in sand mining upstream in the last 25 years. Before 2011, unregistered, bootleg operators went unregulated. But even those who are registered don’t follow common-sense regulations common in other states, which protect the environment and downstream residents. For instance, they mine so close to the river that dikes frequently fail. As a result, they have contributed to a greater than than natural buildup of sediment in our rivers. After Harvey, the US Army Corps of Engineers found that the West Fork was 90% blocked just downstream from River Grove Park.

But the biggest blockage was where the West Fork meets Lake Houston. There, sediment drops out of suspension as the water slows. The sediment built up for decades, forming a mouth bar that backed water up during Harvey and contributed to the flooding of thousands of homes and businesses.

Flood Gate Disparity

Another factor contributing to flooding: Lake Conroe can release water 15 times faster than Lake Houston. That makes it difficult to lower lake levels in advance of a major storm. Storms have a nasty habit of veering away at the last minute. The small gates on Lake Houston mean you have to start lowering the lake far in advance. That raises the risk of wasting precious water. Larger gates would make managing lake levels easier.

Ditches, Streams Filling In

Finally, sediment built up in more places than the San Jacinto. It has also built up in the ditches and streams that lead to the river. This reduces convenance within neighborhoods. There’s less room to store water in streams, so it backs up into storm sewers and streets, and can eventually flood homes.

Four-Part Solution

Montgomery County has now adopted Atlas-14, the new rainfall standard. And residents are pushing commissioners to close loopholes that let developers get away without building detention. Residents are also working with the TCEQ and TACA to adopt better sand mining practices.

But what can we do to remedy the damage already done? Leaders in the Lake Houston Area identified a four-part strategy and are working with the SJRA, City of Houston, Montgomery County and Harris County Flood Control to implement it. Elements include:

  • Increasing upstream detention to reduce the volume of water coming downstream during floods
  • Dredging the river to remove sediment dams that back water up
  • Increasing the number of gates on the Lake Houston Spillway to release water faster
  • Restoring or expanding ditches to handle more water

Let’s look at each of those in a little more detail.

Upstream Detention

The Humble/Kingwood area sits at the tip of a funnel. 535 square miles in a seven-county region drain into Lake Houston.

The San Jacinto River Basin Master Drainage Study identified 16 potential detention projects to hold water back during major storms. However, they would cost roughly $3 billion to reduce damage by less than $1 billion. So that’s a stretch. FEMA evaluates projects based on their benefit/cost ratio.

The SJRA has already applied for a grant for a detention project on Caney Creek which empties into the east fork. But we also need something that can help offset releases from the Lake Conroe Dam on the West Fork. Next step: figure out the funding piece of the puzzle.

Dredging

We’ve already removed almost three million cubic yards of sediment from the West Fork. The third phase of West Fork dredging should wrap up shortly. But there’s still more work to do.

Luckily:

The slide below shows why we need additional dredging.

An 18-foot high underwater plateau exists between where the Army Corps stopped dredging on the West Fork and the FM1960 Bridge where scouring during Harvey reduced the channel depth.

The chart above shows the deepest part of the channel between those two areas. If left in place, this plateau will force flood water out of banks during floods. It will also trap sediment, negating the value of previous dredging efforts.

More Gates for Lake Houston

FEMA has conditionally approved up to approximately $50 million to increase the outflow capacity of Lake Houston. During Havey, the flow of water over the spillway was estimated at 11-13 feet. That’s reportedly higher than the flow over Niagra Falls.

The FEMA grant initially covers preliminary engineering and environmental surveys. If the benefit/cost ratio is positive, they will release the remainder of the funds for construction.

So far, engineers have identified five possible solutions. Each produces a different flood reduction benefit, but also comes with different costs and environmental issues.

The next step: to analyze the benefit/cost ratio of each and submit the results to FEMA.

We are six months into the first phase, scheduled to take a total of 18 months. Construction, if approved, will take another 18 months.

Ditch Restoration/Expansion

Harris County Flood Control District has studied area ditches for the last year or more. Results of their analyses are now complete.

In Kingwood, they identified nine projects and recommended two for immediate implementation that should improve drainage on a third tributary, Ben’s Branch.

Recommendations include expanding:

  • Kingwood Diversion Ditch to take water out of the Ben’s Branch watershed and also improve drainage from surrounding subdivisions from Woodland Hills down to the West Fork.
  • Taylor Gully – if a deal cannot be reached to purchase Woodridge Village and build a regional detention basin on it.

In addition, Flood Control and the City are looking at minor improvements to other ditches that back water up in places, for instance, at culverts under Kingwood Drive.

Goal: Restore 100-Year Level of Service

Engineers solving all these problems have a goal: to restore your home to what they call a 100-year level of service. That means if your home was built above the 100-year floodplain, it should not flood in a 100-year rain – based on new Atlas 14 standards. In places, sedimentation and upstream development have reduced the level of service to 2 years over time.

We need to restore the capacity of ditches, streams, the river and lake to handle 100-year rains. So we can get water from the sky to the Bay without it going through your living room.

While progress may feel painfully slow, many improvements have already been made.

For instance, in addition to dredging, Flood Control has divided Ben’s Branch up into five projects. Three are already complete:

A fourth project, to restore Ben’s Branch from Kingwood Drive north to Rocky Woods should start soon. And a fifth, to restore conveyance between the YMCA and the River, will follow.

How You Can Help

You can help by remaining engaged. Without public pressure, it’s easy for elected officials to ignore these problems and defer expensive solutions. Keep flood mitigation a high priority. Floods can strike at any time. We had four tropical systems barely miss us this year.

Posted by Bob Rehak on 10/27/2020

1155 Days since Hurricane Harvey and 404 since Imelda

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

Above-Water Portion of Mouth Bar Could Be Gone by Christmas

At the current rate that crews are removing sand from the West Fork San Jacinto Mouth Bar, the remainder of the above-water portion of this once-behemoth sand bar could be gone by Christmas. See the two pictures below. The first taken after Harvey and the second taken today.

These two shots show the West Fork mouth bar two weeks after Harvey and today…more than three years later.

Much Yet to Dredge

Of course, even when the above water portion of the Mouth Bar is removed, that will still leave a huge portion below the surface. However, all progress is welcome.

Like an iceberg, most of a sand bar exists below the waterline. Photo taken 10/26/2020. I can’t say with certainty that this is submerged sand, or water stirred up by dredging. It seems too uniform to be the latter. Compare the picture below looking toward the WLHP bridge from a slightly different position and note how irregular the stirred-up sediment looks. Also note that the picture above was taken upstream from the current dredging.

At the start of October, the above-water (sub-aerial) extent of the mouth bar was down to the width of one excavator. Two excavators are now working toward the middle from each end. See below.

Looking WNW toward the West Lake Houston Parkway Bridge and Kings Harbor. Taken 10/26/2020.
From the wet mark on this excavator’s arm, it looks as though they are excavating up to 10 feet below the waterline. The 10-foot estimate closely agrees with the profile chart below. Taken 10/26/2020.

Like an Iceberg, Most of a Sand Bar Exists Below Water

That’s significant progress given what we started with. But much sand remains below the surface.

Tim Garfield and RD Kissling, two leading geologists now retired from one of the world’s largest oil companies, mapped the depth of the river using sonar and depth poles. They found an underwater plateau exists in this region of the river. See chart below.

The blue line represents the water surface. The gold line indicates the deepest part of the channel as you move downstream from the WLHP bridge to the FM1960 bridge. Numbers on the left scale indicate water depth. Numbers on the bottom scale indicate distance in feet downstream from the WLHP bridge.

Plans for Next Phase Still Not Revealed

FEMA has approved dredging another million cubic yards. And Dan Huberty’s amendment to SB500 in the last legislature dedicated $30 million for dredging the West Fork Mouth Bar. The City is drawing up plans, but they have not been announced yet. The last time I talked to Stephen Costello about this, he said the City was leaning toward dredging a channel somewhere south of the mouth bar. But many details remained to be worked out, such as:

  • Method of dredging (hydraulic vs. mechanical)
  • Exact location
  • Channel width
  • Finding qualified contractors
  • Bidding
  • Determining a suitable placement area, etc.

More news when its available.

Posted by Bob Rehak on 10/26/2020

1154 Days after Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

New Drone Shots Reveal Need for Better Flood Control in Liberty County

Since June, I’ve posted about problems in the Colony Ridge development in Liberty County. Among them: the washout of FM1010 where it crosses over Rocky Branch. Authorities have closed the busy road which provides access to Colony Ridge for three years, forcing tens of thousands of residents to seek alternate access routes, such as FM1485 and FM2090.

However, it’s difficult to see all the damage. So today I took a drone and captured some previously unseen details.

Colony Ridge drainage ditch leading to Rocky Branch contributed to washing out FM1010 at far end of ditch.

Lack of Functional Detention Capacity Likely Contributed to Washout

The damage is likely the result of inadequate, poorly engineered, or poorly maintained detention. Another contributing factor: a steep drop in elevation as water leaves the massive ditch (see above) in Colony Ridge and descends through a wooded area toward FM1010. That drop accelerated more water than should have been traveling down Rocky Branch, an East Fork San Jacinto tributary. As a result, floodwaters swept trees and other debris downstream.

One Thing Leads to Another

The debris:

  • Clogged culverts under the road…
  • Then, when the roadbed became a dam…
  • …Water churned through the roadbed next to the culverts…
  • …And deposited more “beaver dams” downstream…
  • …that, in turn, contributed to the flooding of surrounding homes.

Years of Neglect Still Ignored

Amazingly, no one in Liberty County corrected these problems after Harvey. As a result, many homes flooded again in 2019, during heavy downpours on May 7th and September 19th. The problems still have not been fixed. See the pictures below. I took them this afternoon.

Just yesterday, I had lunch with a couple who were considering moving to Liberty County because they were seeking a quieter lifestyle. I told them about this story. They are reconsidering.

FM1010 Washout at Rocky Branch has not been repaired for more than three years. Note flood debris clogged in culvert. Also note straps around logs!
“Beaver dam” just downstream from culverts is building up and up, contributing to additional flooding.

Not All Business is Good Business

Colony Ridge has grown into the world’s largest trailer park in less than a decade. It brought more than its fair share of problems:

A hard lesson for some people to learn is that not all business is good business. Lax enforcement of regulations allowed Colony Ridge to grow out of control. Now county commissioners have a nightmare on their hands, cannot fix their problems, and cannot enforce their own regulations.

Posted by Bob Rehak on 10/25/2020

1153 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.