Hidalgo, Ellis and Garcia Approve Community Flood Resilience Task Force Even As Supporters Turn Against It

Tuesday, 8/11/2020, Harris County Commissioners Court approved creation of a new Community Flood Resilience Task Force by a 3-2 vote along party lines.

Three Vote FOR Despite Protests from Supporters

Judge Lina Hidalgo, Commissioner Adrian Garcia and Commissioner Rodney Ellis voted FOR the measure despite every speaker complaining about some aspect of it. Even those who had lobbied for a year to create the task force spoke against the final bylaws.

Two Vote AGAINST; Cite Timing, Procedural Issues

Commissioner Radack voted against it, citing a soon-to-be-released Army Corps study that could make the task force obsolete.

Commissioner Cagle also voted against it. He cited some troubling procedural issues having to do with public notice. The motion was placed on an emergency agenda late in the day on Friday – without backup. That meant the public could not see what it was about.

Then the task force bylaws changed several times over the weekend. And even during the meeting. This gave commissioners no time to review the measure they were voting on or to consult affected constituents.  

Ambush Agendas Undermine Transparency

Cagle’s concern highlights a growing trend in Commissioner’s Court these days: ambush agendas.

The emergency agenda is posted late in the day on Friday. This increases the chances that people will miss it and reduces their time to respond or request explanation before the court takes action. Some might say that it’s being used as a tactic to minimize opposition.

Likewise, this administration uses supplemental meetings the same way. Hidalgo called a meeting on August 3rd at 4 pm to consider changing the election process. Without posting any explanation.

Such meetings also catch opponents off-guard. Between special meetings and emergency agendas, the public had only ten days for comment on the task force proposal that will guide $2.5 billion in spending. That is not enough to study an idea, understand it, and mobilize protests (if called for).

During testimony on the measure, it became apparent that those who favored the motion received revised bylaws over the weekend. However, those speaking against did not. 

Such steamroller tactics make a mockery of transparency. Especially when there is no need to rush the measure through after so long.

A New Form of “Co-Government”

During the discussion, Judge Hidalgo’s comments made it clear that she sees the task force as a:

  • New form of “co-government”
  • Tool to oversee and overrule professionals in her own Flood Control District
  • Way to identify “the next big thing” in flood control.
  • Pattern for similar task forces in other departments, such as Transportation and Elections.

Avoiding Geographic Representation When Solving Geographic Problem

I previously posted about this subject more than a year ago. I spoke against the measure based on the fact that it represents only some people, not all. It excludes representatives from each watershed in Harris County, in favor of poor communities and communities of color – regardless of how much floods have damaged other communities.

Also, instead of having flood experts, the task force has equity and resilience experts.

Only three of the 17 people on the task force would have scientific or technical expertise, but they would be overseeing scientists, engineers and technical experts.

Both equity and resilience have been redefined to favor the “socially vulnerable.”

Index to Meeting Video

Video of the meeting shows how this went down. I urge you to look at it instead of simply accepting my summary. However, for easy reference, here is a recap of key thoughts with approximate time codes. 

In the left hand window, click on: on II. Emergency/Supplemental items (Part 3 of 3). Then scroll to 5:16:35 where you should hear Judge Hidalgo announce “Item 8: Task Force Bylaws.”

5:16: 53. Hidalgo summarizes the process, which started a year ago. She mentions other cities with similar task forces, and describes this one as a “best practice.”

15:17:31 Hidalgo describes the function of the group as oversight – to ensure that projects go according to the prioritization schedule approved by the three Democrats.

15:17:40 “Most importantly,” she says, “It will help the county look forward and tell us what the next big thing is going to be.” She claims they had multiple comments from hundreds of people and distilled their input.

County Judge Lina Hidalgo conducting discussion in online meeting.

5:18:07. She tells commissioners they got an edited version of the task force bylaws because she still doesn’t know which department the group will go in.

5:18:28. She says, “But I don’t want to hold this any longer just because we haven’t settled on the place.” (That’s the closest explanation we have as to why this appeared on the emergency agenda.)

5:18:40 Garcia congratulates Hidalgo for “engineering” the proposal.

“Which Version Are We Voting On?”

5:19:43 Cagle interrupts to ensure “we’re voting on the right version.” He complains about getting material over the weekend, which was then revised during the meeting they are now in.

CEER Calls Proposal “A Step Backward”

5:20:30. First speaker, Iris Gonzalez of CEER (Coalition for Environment Equity and Resilience) says the proposal addresses “communities that have been left behind.” But then she says, “We’re really disappointed in the language.”  She also asserts that other groups in her coalition are also disappointed. She concludes by stating the bylaws fail to implement the full intent of the resolution passed a year ago. “This seems like a step backward,” she says.

Katie Prairie Conservancy Voices Multiple Complaints

5:23:18: The President of Katie Prairie Conservancy complains about one issue after another. She wants:

  • “Direct access to commissioners court on a regular basis” 
  • “Supervision of flood management activities.” 
  • “Membership of task force to represent the diverse communities that make up Harris County.”
  • Nature-based solutions for generations to come. 

She says, the task force could be effective, but only if it has authority.

5:26:25 Radack thanks the Conservancy for its work.

5:29. Garcia does, too. 

Residents Against Flooding Says Task Force Needs More Specialists

5:32:30 Cynthia Neely, from Residents Against Flooding, said she got copy of the revised bylaws Sunday afternoon. (Even though people speaking against the proposal, like me, did not). The task force, she says, needs more members of groups like Residents Against Flooding. She also demands specialists representing green infrastructure, natural sciences, soil, wildlife, etc.

Sierra Club Voices “Deep Concerns”

5:56 The Houston Sierra Club said it “…has very deep concerns about the Infrastructure Resilience Team and Task Force.” Specifically, it has no one with a  background in green infrastructure, green space, natural sciences, or wildlife. The speaker proposes amendments to the language.

ReduceFlooding Complaints

5:38:55 Bob Rehak (me) speaks for ReduceFlooding.com. I complain that the task force bylaws:

  • Represent some, but not all people
  • Allow diversions of bond money to non-flood issues
  • Define the words resilience and equity in a self-serving way that’s contrary to common understanding.

I also request that the measure be killed or put on the ballot in to November to give voters a chance to confirm that they agree with the new, unconventional definitions of resilience and equity that skew distribution of flood bond dollars unequally.

Cypress Creek Complains About Representation, Balance

5:42:31 Jim Robertson, Cypress Creek Flood Coalition, wanted representatives for each watershed and better balance between community and technical representation. He also wanted more than ten days of public comment and input.

Radack Complains about Timing

5:45:31. Commissioner Radack expresses concern about what a new Army Corps report coming out soon will say. He worries that it could “devastate” some members of  the task, so he advocated not doing anything at this time.

Historical Discrimination Against Lake Houston Area

5:49:48 Rehak (who was cut off before commissioners could ask questions) comes back to answer one from Cagle. Cagle asks why I felt the Lake Houston area has historically been discriminated against in the allocation of flood dollars.

5:50:15 Rehak replies that in the entire history of the flood control district, the Humble/Kingwood area has never received one federally funded HCFCD project. Also, “The Greater Houston Flood Mitigation Consortium reported that the San Jacinto River Watershed has 3% of the region’s population, historically has received 0% of the region’s flood mitigation funding, and yet sustained 14% of the region’s damages during Harvey. We received 4 to 5 times more damage per person than other parts of Harris County, in large part, because of this historical neglect. That’s why the Humble/Kingwood area voted overwhelmingly for the flood bond when we saw the equity language in it. In fact, we had five of the top eight precincts in the county in terms of turnout. Now we’re being neglected again with these bylaws because of very unusual definitions of equity and resilience that help only a few, not everybody.”

Hidalgo Wants Model for “Co-Governing”

5:51:45 Hidalgo thanks everyone and says, “We’re trying to create a model for co-governing which everyone can see is like being passed around like a hot potato a little bit. I don’t want to keep holding this up.”

5:52:24 Hidalgo runs through comments received during the process because there “are so many different perspectives.” 

“We wanted this to be a community task force.” But then, “We decided against including someone from each of the 22 watersheds because it would have become too large.” 

“We have this huge charge to reimagine our flood future.” 

“We need to move away from piecemeal approaches and be able to answer the question “What is success?” (Editorial Comment: To me, success is NOT flooding.) 

Hidalgo Planning for Next Bond Election, Transforming Government

“We need people to help us PLAN for the NEXT bond election and the next big thing, she says.

“We could keep debating this forever, so I propose we vote on this today. It’s impossible to make everybody happy.” 

“We also need to create community groups like this for Elections and Transportation.”  

“This is the best shot we’ve got,” she says.

5:58:23. Ellis asks which department will house the task force?

5:58:30 Hidalgo talks about the options, but concludes it “doesn’t need to be decided today.”

Ellis Takes Credit for Equity Bias

6:00:16 Ellis says he favors the proposal. He claims he put the equity language on the bond ballet because of FEMA’s cost/benefit language. It supposedly favors rich neighborhoods (though statistics don’t back that up). “We know which neighborhoods have been neglected historically,” he says. Meaning HIS.

Precinct One Commissioner Rodney Ellis taking credit for redefining equity.

6:01 Ellis says, “There are some who would advocate just dividing 2.5 billion equally among the four precincts. Well, that’s not equity.”

“So I was glad to put that language on the ballot.”

“This was a worst/first strategy. I’m proud to implement it.”

6:02 Ellis seconds Garcia’s motion to adopt the Task Force Bylaws.

Final Wrangling

6:02:15 Hidalgo restates the motion on the agenda.

6:03:20 Hidalgo calls for a vote.

Garcia, Hidalgo and Ellis vote YES.

Cagle and Radack vote NO.

Cagle again complains about not getting enough notice.

Hidalgo says “We sent an email Sunday with the backup. So it’s just not accurate to say it was a surprise.”

6:04: Motion to create task force is approved.

Re-Purposing Government On the Fly

If you care to watch the entire meeting you will witness county government being re-purposed before your eyes. And it’s a real eye opener.

Remember this when they try to push the tax increase through. It will come up again in September. Will it be on an emergency agenda over the weekend with little public notice and no backup? Will we have more non-elected representatives determining how public funds are spent?

Forget Shakespeare. THIS is high drama.

For a complete copy of the final task force bylaws, click here.

Posted by Bob Rehak on 8/13/2020

1080 Days after Hurricane Harvey

Long-Term Lake Houston Dredging Plan in Development; West Fork Mouth-Bar 60 Percent Completed

In January, the City hired DRC Emergency Services, LLC (DRC) to begin mechanical dredging of the San Jacinto West Fork Mouth Bar. I’ve provided periodic updates on that. According to Houston Mayor Pro Tem Dave Martin, DRC has now officially completed 60% of that project.

In the meantime, other related dredging projects, including East Fork dredging and long-term Lake Houston maintenance dredging are reportedly taking shape. Here’s how pieces of the puzzle fit together. But one piece is still missing – long-term funding to pay for the maintenance dredging.

Two-Phase Program

DRC’s scope of work has two distinct phases:

  1. Phase One will remove accumulated materials near and at the mouth bar on the West Fork of the San Jacinto River.
  2. Phase Two will remove accumulated materials in the East Fork of the San Jacinto River AND other locations in Lake Houston.
West Fork Mouth Bar as of late June 2020.

During Phase One, 400,000 cubic yards of material will be removed over twelve months. To date, DRC has removed approximately 240,080 cubic yards of material. (See photo above.) That’s 60% in approximately 60% of the allotted time, so that part of the project is on schedule.

East Fork Mouth Bar as of May 2020. This areas went from 18 to 3 feet deep during Imelda, according to boater Josh Alberson. The above-water portion of this sand bar has grown three quarters of a mile since Harvey.

Phase Two of the project will consist of:

  • Hydrographic surveys of the West Fork of the San Jacinto River, the East Fork of the San Jacinto River, and Lake Houston to determine dredge material volumes
  • City of Houston advertising and awarding a dredging contract to the lowest responsive bidder

Phase Two will run simultaneously with Phase One to expedite dredging. 

Dave Martin, Houston Mayor Pro Tem

Mayor Pro Tem Martin did not provide an update on where Phase Two currently stands. But residents have reported seeing survey boats on Lake Houston, and the East and West Forks of the San Jacinto.

Mouth bar forming at Rogers Gully on Lake Houston. Example of kind of projects being considered for Phase 2. Photo late June, 2020.

Long-Term Dredging Plan in Development

Additionally, during Phase Two, City of Houston and its partners will develop a long-term dredging plan for Lake Houston. City of Houston or the Coastal Water Authority will execute the plan.

The intention: to fund dredging operations in perpetuity.

This phased approach will obligate the full grant funding before the 87th legislative session in 2021. This grant funding was made possible thanks to State Representative Dan Huberty (District 127) through the passage of Senate Bill 500.

Mayor Pro Tem Martin credits Huberty for his dedication to the long-term maintenance dredging activities on Lake Houston. “Representative Huberty has been a champion for his residents and a great ally in seeing these additional dredging efforts come to fruition,” said Martin.

$40 Million Project

The total project is valued at $40 million (except for the perpetuity part). Funding for the immediate dredging projects comes through a combination of:

  • City of Houston Harvey Disaster dollars provided by Governor Greg Abbott
  • Grant dollars from the Texas Water Development Board (TWDB)
  • Harris County Flood Control District (HCFCD) Bond Program.

Harris County Engineer, John Blount submitted the grant application for this project to the TWDB. But the City of Houston became a “subrecipient” and is now managing the project.

Long Term Funding – Still A Missing Piece of Puzzle

Lake Houston, a City of Houston asset, is losing capacity. Everyone has recognized that fact for decades. But as silt filled the rivers, inlets and lake, maintenance was deferred, reportedly for budgetary reasons. In 2017, during Harvey, the problem became so big that no one could ignore it anymore. Flooding was the immediate problem. But loss of water capacity is an even bigger, longer-term problem.

It’s one thing to have a long-term maintenance dredging plan and another to put it into action. But where will the money come from?

A tax on sand mines? Won’t work. Most aren’t in the City. Or even in Harris County.

Some have suggested creating a taxing district for lakefront homeowners. That won’t work either. Not enough of them. And it would create a stampede for the Oklahoma border. Moreover, it hardly seems fair; the lake is part of a City system that provides water to two million people and generates revenue.

The logical solution seems to be increasing the cost of water. Adding just a fraction of a penny per 1000 gallons should do it. Dredging isn’t just about reducing flooding. Or preserving views for lakefront homeowners. It helps preserve the lake’s capacity. And that benefits everyone.

As we develop a long-term dredging plan for the lake, we also need to consider a sustainable source of financing.

Posted by Bob Rehak on 8/12/2020 based, in part, on a release by Houston Mayor Pro Tem Dave Martin

1079 Days after Hurricane Harvey

San Jacinto River Watershed Master Drainage Plan Meeting Thursday at 6:30 p.m.

Harris County Flood Control District, Montgomery County, City of Houston, and San Jacinto River Authority (SJRA) will host a virtual public meeting on August 13, 2020. Purpose: to provide information about work to date in the San Jacinto Regional Watershed Master Drainage Plan (SJMDP) and give you a chance to provide input.  

Light pole near River Bend in North Shore as Harvey receded. Note the "wet marks" several feet up on pole. Photo by Jim Balcom.
Light pole near River Bend in North Shore as Harvey receded. Note the “wet marks” several feet up on pole. Photo by Jim Balcom. Water was so high that rescue boats had to dodge electrical wires.

About the Study and Its Goals

The study began in April 2019. Its goal: to reduce flood risks to people and property throughout the San Jacinto River regional watershed by identifying future flood mitigation projects for the near- and long-term. The SJMDP study area covers nearly 3,000 square miles in seven different counties and includes approximately 535 miles of stream.

The SJMDP team has updated and integrated hydraulic and hydrologic models for all the major streams in the watershed. This provides the technical basis for identifying vulnerabilities. It also allows the team to estimate impacts to existing infrastructure from future growth.

Meeting Details

Community engagement is an important component of the Bond Program. Feedback from residents helps “ground truth” models, assumptions and plans. So please attend the virtual meeting, ask questions, and volunteer feedback.

Thursday, August 13, 2020

6:30 p.m. to 7:30 p.m. 

Join online at PublicInput.com/SanJacMasterPlan

Or by phone at 855-925-2801 with Meeting Code: 9742 

You can register now, download a reminder for your calendar, submit questions, and sign up for future updates on this important study.

The meeting will begin with a brief presentation to share project updates, followed by a moderated Q&A session with Flood Control District team members. Residents will be able to submit questions and comments throughout the presentation. Any comments not addressed during the Q&A session will receive a response after the event. 

A recorded version of the meeting will be available on the Flood Control District’s website and YouTube channel after the event.

Funding for Study

A Federal Emergency Management Agency (FEMA) Hazard Mitigation Planning Program funds 75% of the study. The four local partners contribute equally to the rest.

For More Information

For questions, please contact the Flood Control District at 346-286-4152, or complete the online comment form. Comments may also be mailed to the Harris County Flood Control District, 9900 Northwest Freeway, Houston, Texas 77092, Attn: San Jacinto Regional Watershed Master Drainage Plan. For more information about the San Jacinto Regional Watershed Master Drainage Plan, visit www.sanjacstudy.org.

Posted by Bob Rehak on 8/12/2020

1079 Days since Hurricane Harvey

Lake Conroe Lowered to Target Level for August; LCA May Be Gearing Up For Another Fight

Since August 1, the level of Lake Conroe has hovered around 200 feet. As of this writing, it stands at 199.95 feet, virtually at the target level of the seasonal lowering for the month. That’s three hundredths of a foot above its seasonal average for the last 46 years and five hundredths of a foot below the target level. Yet the Lake Conroe Association appears to be gearing up for another fight to end the program.

Lake Conroe level as of 8/10/20 at 4:30 pm. Source: SJRA.net.

Seasonal Averages

Lake Conroe seasonal levels by month. Source: SJRA

History of Strategy

The SJRA started seasonally lowering the level of Lake Conroe in 2018 after Governor Abbott directed the SJRA to develop strategies to help protect downstream communities from flooding. Due to a slight drought in late 2019, the lake level did not recover quickly. The Lake Conroe Association (LCA) then organized protests as the SJRA reconsidered the strategy for this year.

Seasonal Release from Lake Conroe, 529 cfs from one tainter gate open six inches.
SJRA Seasonal Release on 4/15/2020. One tainter gate open six inches releases a slow, steady stream of 529 cfs. No one flooded downstream last Spring during the release.

Ultimately, the strategy adopted by the SJRA represented a compromise. During September/October, the lake will remain a half foot higher than in previous years (200 vs 199.5).

Here’s how the current and previous targets compare to what Mother Nature provides through rainfall and evaporation.

In August, little manual lowering should be needed. In September and October, much less lowering will be needed compared to the previous plan adopted in 2018.

SJRA’s Plan for Fall Lowering

SJRA’s current official policy reads as follows.

“Beginning August 1, release only an amount of water from Lake Conroe to create a one foot capacity to catch rainfall and storm runoff (from 201’ msl to 200’ msl). After September 1, increase capacity an additional six inches (from 200’ msl to 199.5’ msl). If a named storm is predicted to impact our region, the COH may initiate an additional release of six inches (to 199’ msl) by notifying SJRA in writing of their call for release. Recapture beginning October 1.”

Compared to the seasonal average, the plan really only amounts to lowering the lake 2 to 3 inches in September and October.

Lake Conroe Association Gearing Up for Another Fight?

Regardless, the Lake Conroe Association (LCA) is reportedly gearing up for another fight.

Community Impact newspaper reported in its August 2020 issue that LCA filed a complaint with the TCEQ on June 30 to end the seasonal lowering of Lake Conroe.

On August 7, they sent an email out to requesting Lake Conroe residents to donate money to the Lake Conroe Association so that it could “replenish the reserve funds spent to oppose the San Jacinto River Authority (SJRA) lake lowering program.”

In the next paragraph, they ask Lake Conroe residents to provide comments to the Sunset Commission reviewing the SJRA.

Screen Capture of LCA Communication on 9/7/2020. Links not active.

Neither of those two actions is a threat. But juxtaposing them like that is certainly walking up to the firing line … with the chamber loaded.

There sure is a lot of energy expended over two or three inches of water.

Lake Conroe people claimed last winter, when the SJRA was reconsidering the policy, that the lowering would not help Lake Houston Area residents. Lake Houston Area residents, still feeling the pain of Harvey, want all the help they can get.

Enough said.

Posted by Bob Rehak on 8/10/2020

1077 Days after Hurricane Harvey

More Delays, Denials, and Victim-Blaming in Elm Grove Lawsuit

Defendants in the Elm Grove flood lawsuit have filed more than 20 new documents with the Harris County District Clerk since mid-July. The big news: The addition of Concourse Development, LLC to the lawsuit has pushed back the trial date from March to September next year. It has also triggered more victim-blaming plus claims and cross-claims among the defendants.

Background

In 2019, runoff from 268 clear-cut acres under development by Perry Homes contributed to flooding in Elm Grove, not once, but twice. Victims sued two subsidiaries of Perry Homes who were developing the property. They also sued several contractors, and LJA, the engineering company.

Screen capture from video taken by Cogdill family during May 7th flood of 2019 shows water streaming out of Woodridge Village into Elm Grove.

In June 2020, lawyers for plaintiffs added Perry Homes and Concourse Development to the lawsuit.

Perry promptly responded, blaming the victims for their own damages.

Perry Homes is the parent company of subsidiaries PSWA and Figure Four Partners, who were originally sued.

Many Elm Grove Families had to be rescued.

Concourse Development bought the property now known as Woodridge Village on 1/12/2018 and sold it to Perry Homes six days later.

Five developers owned the Woodridge Property before Figure Four Partners, LTD, a Perry Homes subsidiary. Concourse owned it for six days before flipping it to Figure Four. Source: Montgomery County Appraisal District.

Concourse is also the developer of Woodridge Forest, immediately west of Woodridge Village. Approximately one year before the purchase and quick sale, Concourse reportedly told Woodridge Forest residents at a community meeting that the Woodridge Village property would never be developed because it was “just too wet.” USGS classified large parts of the area as wetlands and multiple streams converged there.

Where Case Stands Now

The addition of Concourse to the lawsuit prompted multiple requests by Concourse and other defendants to delay the trial again – until September 20, 2021. Concourse said it didn’t have enough time for discovery and preparation. Given that the case was already almost a year old, Concourse claimed it had a lot of catching up to do. In their response to the plaintiffs’ sixth amended petition, Concourse also pointed some fingers at other defendants. One then filed a cross-claim against Concourse (see below).

Concourse Blames Victims and Almost Everyone in Sight

Defendant Concourse Development LLC denied each and every claim in Plaintiff’s latest petition. This is called a General Denial.

Concourse then lists eight pages of defenses. They repeat the phrase “Pleading further, and in the alternative, if such be necessary and subject to the foregoing pleas and without waiving same…” a grand total of twenty times. That means, “If the general denial doesn’t work, we reserve the right to claim X. And if X doesn’t work, we reserve the right to claim Y. Etc.”

More Than 20 Defenses Asserted

With that as a preface, Concourse also pleaded that:

  1. Concourse was not the immediate or sole cause of the flooding and damages.
  2. “Acts, omissions, fault, negligence and other conduct of the Plaintiffs” were the immediate and sole cause, in whole or in part, of the flooding and their damages. (They do not explain why they believe that, though.) Said another way, the victims caused their own damages.
  3. Other defendants caused the damages.
  4. New and independent third parties caused the damages.
  5. Other people caused the damages.
  6. Concourse had no obligation to the victims.
  7. Concourse’s conduct was reasonably prudent.
  8. The flooding was an unavoidable accident.
  9. Plaintiffs failed to mitigate their damages.
  10. Their contract (presumably with Perry) gives them indemnity.
  11. Any payments made by other parties (not a part of the litigation) to Defendants should offset any liability Concourse may have. (Presumably, they’re talking about insurance companies.)
  12. Any award against Concourse must be reduced by the percentage of fault attributable to others, including the Plaintiffs themselves, and third parties.
  13. Flooding was caused by an intervening, but unspecified cause.
  14. Plaintiffs’ claims fail to state a claim upon which relief can be granted.
  15. To the extent that Plaintiffs allege lost wages or loss of earning capacity, recovery should be limited to post-tax earnings or net earnings.
  16. Plaintiffs’ damages resulted from prior or pre-existing conditions over which Concourse had no control and did not cause.
  17. God caused the damages.
  18. Any punitive damages awarded in the case should be reduced in proportion to Plaintiffs’ own negligence.
  19. Plaintiffs’ claims should be barred because Concourse acted with due care and complied with all laws and regulations.
  20. Plaintiffs’ assumed the risk that resulted in their “alleged” damages.
  21. Punitive damages violate the Due Process and Equal Protection provisions of the Fourteenth Amendment of the US. Constitution and the Double Jeopardy Clause of the Fifth Amendment.
  22. Punitive damages violate Chapter 41 of the Texas Civil Practice and Remedies Code, the Texas Constitution, and the United States Constitution.
  23. Prejudgment interest should be limited under Texas Law.
  24. Plaintiffs have not fulfilled all the conditions necessary to maintain the lawsuit.
  25. The One Satisfaction Rule should govern any awards.

The last point means that a plaintiff should only recover once for a particular injury. It applies when several defendants commit the same act or when multiple defendants commit different acts that result in one injury.

Defendants Now Fighting Among Themselves

If many of those points sound contradictory, they are. But Concourse has covered all its bases.

In #3 above, Concourse pointed the finger of blame at other defendants in the case. Evidently, Double Oak Construction, Inc., one of the other defendants didn’t like that. So…

On 8/6/2020, Double Oak filed a cross-claim against Concourse. Double Oak alleges that Concourse should be held directly liable to plaintiffs for any and ALL damages they suffered. Double Oak also wants a jury to decide Concourse’s percentage of liability.

Why is that? Double Oak alleges that “…the Developer Defendants hired Concourse on May 8, 2019, the day after the extreme weather event on May 7, 2019, to inspect the Development and that Concourse did not advise the Developer Defendants to make any changes to the detention.” Nor, they claim, did Concourse advise Double Oak or the other Contractor Defendants to make any changes to their work after the inspection.

Therefore, Double Oak further alleges, Concourse is liable to Plaintiffs for damages and any award levied against Double Oak.

Double Oak Objects to Concourse Production of Documents

In its response to the Plaintiffs, Concourse also gave “notice to all parties that any and all documents produced during discovery may be used against such parties at any pre-trial proceeding and/or trial … without the necessity of authenticating the document.”

Double Oak objected to this. Double Oak claims it doesn’t know what specific documents Concourse intends to use, therefore Double Oak is handicapped in its defense.

Trying to anticipate every single document produced by any party would cause an undue hardship, claims Double Oak. Double Oak reserved its right to authenticate any and all documents that Concourse produces as part of discovery.

Woodridge MUD Fights Subpoena for Documents

In other news on the case, the Woodridge Municipal Utility District (MUD) is fighting production of documents that have been subpoenaed.

The Woodridge MUD claims that the Plaintiffs’ subpeona is “overly broad and seeks to inquire into matters subject to the attorney-client privilege.” They also claim that some of the requested documents involve matters discussed during executive sessions of the Woodridge MUD board.

The MUD also refuses to produce documents anywhere other than at the offices of its counsel.

Posted by Bob Rehak on 8/10/2020

1077 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 Could Shift Billions of Flood-Bond Dollars Tuesday without Public Vote

Tuesday, Harris County Commissioners Court could vote on a proposal to create a Community Flood Resilience Task Force (CFRTF). The Task Force has the potential to shift billions of flood-bond dollars from Republican-controlled Precincts 3 and 4 to Democratic-controlled Precincts 1 and 2. It should be noted that resilience appears nowhere in the flood bond language that voters approved, so this may not even be legal.

County Judge Lina Hidalgo, Commissioner Rodney Ellis and Commissioner Adrian Garcia are using the committee and unusual definitions of “equity,” “equitably,” and “resilience” to justify the shift. Their efforts could kill much-needed flood-mitigation projects in areas such as Elm Grove and the wider Lake Houston Area. Mr. Ellis especially has been openly hostile toward helping Elm Grove.

Secrecy Surrounds Creation of Task Force

The CFRTF proposal has been placed on the Emergency/Supplemental portion of the agenda with no public explanation of what commissioners would actually vote on. See Item #8. It reads only: “Request by the County Judge for discussion and possible action on reconstituting the Harris County Flood Control Task Force as the Harris County Community Flood Resilience Task Force and amending the bylaws accordingly.”

The current version of the Task Force by-laws is not posted online, but I have obtained a copy via a FOIA request. The wording of the bylaws has changed from the version posted on July 24. A distinctive bias runs through the wording that’s contrary to the wording approved by Harris County voters in 2018.

2018 Flood-Bond Election Called for Equity

Because not one joint USACE/HCFCD project had ever been conducted in the area, Lake Houston Area leaders actually argued to include this language in the flood bond. It is now being turned against the area.

Harris County voters approved the flood bond in 2018 with the understanding that flood-bond dollars would be distributed “equitably.” The approved language specifically required that. Since then, however, Commissioner Rodney Ellis has led a concerted effort to redefine the word equitably so that flood-bond dollars can be shifted disproportionately to low-income “communities of color.”

Recognized Definitions of Equitable and Equitably

Most people likely define equitably as fairly or impartially.

  • Webster’s Third International Dictionary defines it as equality – “without prejudice or favoritism.”
  • The Oxford English Dictionary defines it as “unbiased, impartial.”
  • Roget’s Thesaurus lists two pages of synonyms, most centered around the idea of “a level playing field.”
  • Black’s Law Dictionary has pages of definitions, most centered around the idea of “fairness.”

Ellis’ Definition of Equity

Mr. Ellis defines equity as righting the wrongs of the past, especially in regard to racial injustice. His definition relates to fairness only if you define equity, not in terms of the present, but of the past. He talks a lot about reparations for slavery. However, he ignores:

I doubt this is what voters had in mind two years ago when 88% voted for the flood bond.

They more likely felt they would see their fair share of flood-bond projects going to their neighborhoods, not making up for social injustices.

Making up for for social injustices is NOT how the bond was sold. HCFCD identified projects in every watershed based on 22 community input meetings.

Task Force To Ensure “Equitable Resilience”

Judge Hidalgo, Commissioner Ellis and Commissioner Garcia intend to use this supposedly impartial task force to advise them on flood-control decisions. However, the flood-control experts and engineers don’t get to vote. They will only advise 17 political appointees. The appointees must have, according to the proposed bylaws, “a demonstrated knowledge of or interest in equitable approaches to flood resilience and the socioeconomic, demographic, and environmental factors that affect the relative resilience of communities in response to flooding.”

Of the 17 members:

  • At least two must represent low-income communities.
  • At least two must represent communities of color.
  • At least three must have expertise in flood resilience.
  • At least one will be a City of Houston representative with responsibilities related to resilience.

The task force will also include at least one person from each of eight competency areas, six of which are based on the idea of equity (See appendix A, page 12):

  1. Housing equity
  2. Health equity
  3. Equitable infrastructure
  4. Equitable urban planning and transportation
  5. Environmental equity
  6. Equity and social justice

The other two competencies are:

  1. Flood risk mitigation
  2. Authentic connections to local communities with “lived experience” (whatever that means).

A minimum 14 out of the 17 positions on the task force will ensure Hidalgo’s, Garcia’s and Ellis’ definitions of equity and resilience based on “social justice” are implemented.

Note that resilience, like equity, has become political code for programs that benefit primarily the socially vulnerable. (See the resilience study produced by the City of Houston.)

Double-Speak Definitions Enshrined in Bylaws

Article II (Definitions) Paragraph 3 even spells out what’s meant by the term “equitable resilience.” It “takes into account issues of social vulnerability,” say the bylaws.

The bylaws then go on to say equitable resilience “…starts from people’s own perception of their position within their human-environmental system and accounts for their realities and their need for a change of circumstance to avoid imbalances of power into the future.”

Talk about political double speak! What does that even mean?

I think they’re saying that decisions will be made on subjective, not objective, criteria.

Also note Definition #6 – Flood Resilience Projects. The word mitigation (as in flood mitigation) appears nowhere in the definition.

In fact, the phrase “flood mitigation” appears nowhere in the entire 12-page document. Neither does the word “equal.” However, resilience appears 63 times. But “resilience” never appears once in the bond language that voters approved.

Resilience, like equity, does not apply to the entire county. Most people probably see resilience as a positive word that helps everyone. It doesn’t. The Ellis/Hidalgo/Garcia definition helps only a subset of people.

More Double Speak

A footnote on page 3 says “It is not within the scope of the CFRTF to alter or re-prioritize 2018 flood bond projects, except that the CFRTF should evaluate and provide feedback on whether those projects are being implemented in accordance with the [Harris County Commissioners] court-approved equitable prioritization framework and schedule.”

In other words, the task force can only make sure the equity priorities that Ellis, Hidalgo and Garcia approved are being implemented. These aren’t advisors; they’re enforcers.

Troubling Questions

  • Why are technical experts on flood mitigation being replaced by “equity” experts?
  • Why is the judgment of experts on flood mitigation being replaced by political appointees who don’t represent the spectrum of views in Harris County?
  • Why are changes that could fundamentally alter the nature of government and the allocation of tax dollars being considered on an “emergency” agenda?
  • Why has the voter-approved definition of “equitable” been replaced by one that’s inequitable?
  • Why are hundreds of millions of tax dollars moving to Precincts One and Two, denying other precincts their fair share?
  • If the Community Flood Resilience Task Force is so important, why is it not being put on the ballot for November?

Of all these questions, perhaps the last is the most critical. Voters deserve a say in how their $2.5 billion is spent. Not just a subset of voters. All voters.

Please email the county judge (CRTF@cjo.hctx.net) before Tuesday’s meeting and demand that creation of the resilience task force be put on the ballot for November. We need to clear up any confusion about what we approved in the flood-bond referendum of 2018 and how voters want bond dollars allocated.

Posted by Bob Rehak on 8/9/2020

1076 Days after Hurricane Harvey

The Long, Hard Road from Vietnam to Elm Grove for John Hulon

This is the story of a Vietnam veteran and former police officer who has lived in Elm Grove for more than 25 years. John Hulon’s troubles started when he was laid off from his job after brain surgery. Then he had a stroke. Followed by a heart attack. After being forced into retirement, he discontinued his flood insurance to save money. Then he flooded. Twice. John spent his life savings to restore his home and replace two vehicles. Now, a planned mitigation project that could protect his home from future flooding has become a political football. Regardless, he focuses fondly on his neighbors and the 12 volunteers from Second Baptist Church who helped him in his darkest hours. 

Interview with John Hulon

Rehak: How badly did the 2019 floods affect you?

Hulon: We lost everything.

Gutting the Hulon Residence after May Flood

Rehak: Why did you buy your house in this neighborhood?

Hulon: We always wanted to buy a house. So, we started looking around. A real-estate lady, who was an ex-Marine, took good care of us and showed us some homes.

You can tell immediately as you walk in a house if you like it. My wife fell in love with this one instantly. And then the real estate agent opened the curtains and we saw the home had a swimming pool. That was the icing on the cake. So, we bought it. And we’re still in love with it.

No Flood Insurance

Rehak: Did you pay off the mortgage before it flooded? 

Hulon: Yes. 

Rehak: Is that why you didn’t have flood insurance? 

Hulon: Flood insurance was a condition of the mortgage. But after paying the mortgage off, I dropped the insurance because, in the history of Elm Grove, it had never flooded here. And at that point, all we had was Social Security and military retirement. I couldn’t afford the insurance anymore.

Swollen doors and waterlogged studs.

High School Graduation Trip…to Vietnam

Rehak: What branch of the military were you in? 

Hulon: Air Force. In security.

Rehak: Was that back during Vietnam?

Hulon: Yeah, for my high school graduation trip, I went to Vietnam. 

You could say I grew up over there. I went when I was eighteen. In 1967.

Rehak: How long were you in the Air Force?

Hulon: Twenty years. I retired in 1987.  

Preserving the Uniform. The Army uniform belonged to Hulon’s father. He died of Agent Orange after serving in WWII, Korea and VietNam where he was also wounded.

Rehak: Were you in combat?

Hulon: Minor. Mostly I guarded airplanes. 

Switch to Law Enforcement

Rehak: What did you do when you came back?

Hulon: I was stationed at March Air Force Base in Riverside, California. And then I got out of the Air Force for a while after initially serving four years and went back to Louisiana, where my parents lived. I got a job as a city policeman in Leesville, Louisiana. And while there, I met an Air Force recruiter. He persuaded me to rejoin the Air Force. I told him I’d rejoin if he could get me changed from security to law enforcement, which he did. Then after I got out of the Air Force the second time, I started working in retail as a loss prevention manager. And later in IT.

Loss Prevention Manager Who Lost Everything

Rehak: Loss prevention! That makes a good transition to Elm Grove. You lived there for decades. Did you flood in May or just in September of 2019?

Hulon: I flooded in both. In the first flood, we only had to tear out half the walls. But we also had to buy all new furniture, new beds, new everything. We’d just finished that when it flooded again in September.

Rehak: How much of the house did you have restored before it flooded again?

Heirlooms lost to sediment-laden floodwater

Hulon: Walls and floors. We were in the process of repairing the cabinets. We had brand new cabinets before the first flood and they’re still here. They were still usable after the first flood. But after the second flood, they wouldn’t close. They still need to be redone, but we haven’t redone them yet.

Rehak: Will you tell me a little bit about your medical history. 

“I Died in the Back of That Ambulance”

Hulon: I was sitting at my desk working and I started feeling really funny and I knew something was wrong. My co-workers wanted to call an ambulance. But instead I drove my truck home. My wife and daughter were going to take me to the hospital. But we only got to the end of the street before they had to turn around. They called 911. By the time the ambulance came, I was pretty much out of it. They put me on the stretcher. 

In my mind, I died in the back of that ambulance.

John Hulon

Rehak: Why do you say that?

Hulon: I had an out-of-body experience. I was actually looking down at myself from above somewhere while they worked on me. When I got to the hospital, they did a brain scan and thought I had cancer. Turned out it was an abscess. The surgeon told me, “I just barely touched it and it popped.” So, I’m very lucky. They did the surgery and I stayed in the hospital for about two months.

Stroke and Heart Attack

Rehak: And then?

Hulon: Then I had a stroke.

Rehak: When did you have your heart attack, John?

Hulon: About two years ago. After Harvey.

Rehak: What triggered that? 

Hulon: I don’t really know. I was just sitting watching TV when I started feeling funny and had a lot of pain in my back. It wasn’t normal. I was injured pretty bad in Vietnam. So, I’m used to back pain, but not like this. I laid down on the couch and I knew something was wrong. I called 911. They came and said I was having a heart attack.

Rehak: Did you need a bypass or a stent?

Hulon: No, they just put me on a blood thinner and some blood pressure medication. 

Floods Used up Entire Life Savings

Rehak: Rebuilding your house twice must have cut into your life savings. 

Hulon: Used up every penny of it. Everything had to be redone. Everything. In the first flood, they only had to go up about four feet on the sheetrock. But in the second flood, they had to replace everything up to the ceiling, all rooms. 

Rehak: How far are you from the Perry site?

Hulon: About three blocks.

Rehak: Did the water come from that direction?

Hulon: Yes, through yards and down the street.

Rehak: Was it clear or a muddy?

Hulon: Very muddy. 

Dog encounters glove

Rehak: Was there a current going down the street?

Hulon: The water was flowing like a river.

“This is What I Could Do in My Life”

Rehak: What went through your mind as the water came up?

Hulon: I said to myself, “Look at everything we’ve built 40 years of marriage on!” Believe it or not, I was very calm at the time. I just said, “This is what I could do in my life.” 

Paid Contractor Up Front for Work Not Completed

Rehak: Were you able to find a good contractor?

Hulon: We found one that wanted $5000 upfront. They did 90 percent of the work and never showed up again.

Rehak: So sad.

Thinks About Volunteers from Second Baptist All the Time

Hulon: Yeah, but, you know, before that, volunteers from the Second Baptist Church came over. They’re great people there. They sent 12 people to our house when my daughter called. They stripped the walls for us. Wow. They were in and out in like a couple of hours, men and women. And I was so impressed.

Rehak: Incredible.

Hulon: And they kept coming back for a month after that. Every day. They brought us hot meals!

Rehak: That’s amazing.

I think about their kindness all of the time. 

John Hulon

Rehak: This was such a beautiful neighborhood before it flooded.

“These Were All Nice Houses Out Here”

Hulon: It still is, considering all the devastation. People on the internet talk about how this area is so poorly maintained. That’s a bunch of crap. These were all nice houses out here.

“We lost everything.”

Rehak: What do you hope will happen at this point?

Hulon: I hope we can recover some of our life savings and complete the work that we still need to do. I’m not getting any younger. We just need a little cash. I don’t want to leave my wife with nothing. 

“It Would Probably Kill Me”

Rehak: How do you feel about having invested your life savings in restoring a house that may flood again?

Hulon: (Choking up) I don’t know. If we flood again, I’ll probably move to Louisiana and live with my sister. Jesus, I can’t live through that again, I’ve got flood insurance now, but I don’t, I don’t, I don’t know. I’ll probably move to Louisiana. I don’t want to. But I don’t think I could take another flood. I mean, it would probably kill me.

Everybody Helping Everybody

Rehak: Is there anything else you want to tell me, John?

Hulon: How our little neighborhood came together. I mean, it was just amazing. Everybody on the street was just like family. Everybody was helping everybody. But of course, all of Kingwood is that way. That’s what makes this such a great community.

Posted by Bob Rehak on August 07, 2020

1074 Days since Hurricane Harvey and 323 Since Imelda

National Hurricane Center Increases Prediction for 2020

After predicting that the 2020 hurricane season would be slightly above average earlier in the year, the National Hurricane Center (NHC) now predicts the season will be extremely active. An NHC outlook released Thursday indicates this season could almost double the average.

NHC predicts 19 to 25 named storms, though they do not predict how many will make landfall. Of those, NHC also predicts 7 to 11 will become hurricanes and 3 to 6 will become major hurricanes.

Historically, only two named storms form on average by early August, and the ninth named storm typically does not form until October 4. An average season produces 12 named storms, including six hurricanes of which three become major hurricanes (Category 3, 4, or 5).

Factors Behind Change

Current oceanic and atmospheric conditions that make an “extremely active” hurricane season possible are:

  • Warmer-than-average sea surface temperatures in the tropical Atlantic Ocean and Caribbean Sea
  • Reduced vertical wind shear
  • Weaker tropical Atlantic trade winds
  • An enhanced west African monsoon
  • Ongoing warm phase of the Atlantic Multi-Decadal Oscillation, which reappeared in 1995 and has been favoring more active hurricane seasons since that time. 

Another contributing climate factor this year is the possibility of La Nina developing in the months ahead. Indicative of cooler-than-average sea surface temperatures in the equatorial regions of the eastern Pacific Ocean, La Nina can further weaken the wind shear over the Atlantic Basin, allowing storms to develop and intensify. 

Underscores Need for Preparedness

Said Neil Jacobs, Ph.D., acting NOAA administrator. “It is now more important than ever to stay informed with our forecasts, have a preparedness plan, and heed guidance from local emergency management officials.”

“This is one of the most active seasonal forecasts that NOAA has produced in its 22-year history of hurricane outlooks,” said U.S. Secretary of Commerce Wilbur Ross. “We encourage all Americans to do their part by getting prepared, remaining vigilant, and being ready to take action when necessary.” 

Stay tuned to the National Hurricane Center for the latest about tropical storm and hurricane activity in the Atlantic.

Posted by Bob Rehak on 8/7/2020 based on predictions by the NHC

1074 Days since Hurricane Harvey

Harris County Commissioners Vote to Take No Action on Raising Taxes at This Time

This morning in a special meeting, Harris County Commissioners debated whether to raise taxes BEFORE they had a certified appraisal from the Harris County Appraisal District.

They chose to take no action for the time being.

Request by Budget Director

The first agenda item said, “Request by Budget Management for discussion and determination if the Court would like (1) to proceed with initial consideration of proposed property tax rates based on the July 24th Harris County Appraisal District (HCAD) estimate or (2) to take no action and wait to propose rates based on the Certified Appraisal Roll expected from HCAD in late August.

Commissioners Chose Option 2

The commissioners chose option 2, i.e., to take no action. Much of the debate had to do with accuracy. The budget director outlined several different scenarios that called for different levels of tax increases. One even was based on holding the tax rate constant.

But at least one scenario called for a tax increase that would have required voter approval in November. Getting the increase on the ballot, however, would have required making a decision before August 18 and the completion of the certified appraisal.

The agenda item refers to “late August” for the completion of the certified appraisal. Those concerned about a potential tax increase should watch the calendar for the Harris County Commissioners Court.

Commissioners have scheduled two more meetings for August on the 11th and 25th.

Debate Focused on Economic Hardship

A portion of the debate and one call-in comment focused on the economic hardships that people are laboring under right now. The owner of a Chinese restaurant downtown said that her business was only 30% of the normal level. She and her family have been in business for more than 50 years. She said that they might not even be able to make their current tax payments and also said that she could not handle an increase.

This argument set the tone for the discussion. Several commissioners frequently eat at the restaurant.

At the end of the day, the commissioners voted not to take any action until they knew exactly what the tax base was. They feared raising the taxes too much or too little.

The County has not yet published the different budget scenarios considered in the meeting.

County Will Fight to Include Non-Citizens in Population Counts

The second agenda item stated: “Request by the County Attorney for authorization to file on behalf of the County friend of the court briefs and join in existing/future litigation that challenges federal efforts to exclude non-citizens in population counts when legislative boundaries are redrawn and to further authorize the County Attorney to engage Special Counsel at no cost to the County.”

A majority of the Court voted to approve this. It means the county will fight to include non-citizens in official census counts. That means, when legislative districts are redrawn (which they are after every census), Texas could wind up with more representatives in Congress rather than less. It also means that the composition of the congressional delegation could shift.

Uncertainty Surrounds Estimates of Non-Citizens

No one knows with certainty at this instant how many non-citizens live in Harris County.

The US Census Bureau estimates that 26.1% of the population is foreign born, but makes no estimate of how many foreign-born residents have attained citizenship.

A group called the Migration Policy Institute estimates that 412,000 people in Harris County are unauthorized.

Congressional Districts currently average approximately 711,000 people.

So if the Migration Policy Institute estimate is correct, AND if Harris County is successful, the inclusion of non-citizens won’t be enough to create a new district. However, it will shift some boundaries.

The Texas Secretary of State estimates that as many as 100,000 residents statewide many not have attained citizenship. However, officials are skeptical of the estimates. They are based on the number of people who did not have citizenship when they applied for drivers’ licenses. Many may have attained citizenship after applying for the licenses.

So no one really knows at this point how the inclusion of non-citizens could affect congressional boundaries.

Posted by Bob Rehak on 8/6/2020

1073 Days after Hurricane Harvey

Harris County Commissioners to Consider Tax Increase at Special Meeting Today

Under the cover of COVID, Harris County Commissioners will consider a tax increase at a special meeting today.

Harris County Judge Lina Hidalgo conducting Monday’s special meeting.

Tax Increase: #1 on Agenda

Item #1 on the agenda says: Request by Budget Management for discussion and determination if the Court would like (1) to proceed with initial consideration of proposed property tax rates based on the July 24th Harris County Appraisal District (HCAD) estimate or (2) to take no action and wait to propose rates based on the Certified Appraisal Roll expected from HCAD in late August.”

If you got a small black and white post card in the mail last week from HarrisPropertyTaxes.org, this is what it was about.

Reapportionment: #2 on Agenda

Item #2 on the agenda also promises to be a lively discussion: Request by the County Attorney for authorization to file on behalf of the County friend of the court briefs and join in existing/future litigation that challenges federal efforts to exclude non-citizens in population counts when legislative boundaries are redrawn and to further authorize the County Attorney to engage Special Counsel at no cost to the County.”

Monday Special Meeting Considered Changing Election Process

This follows on the heels of another special meeting on Monday. That meeting discussed changing the election process to bring it under the influence of politically appointed, not elected officials.

All these changes follow several decisions to replace high-level county employees with considerable experience. One for instance, was in finance.

Major changes are afoot in Harris County. And none of the mainstream media seem to have the bandwidth to cover the story.

So keep your head up.

How to View

To view archived videos of commissioners’ meetings, click here.

To view archived agendas of commissioners’ meetings, click here.

To view meetings live and in progress, click here.

Posted by Bob Rehak on 8/6/2020

1073 Days since Hurricane Harvey