Possible Penalties for Wetlands Violations

The Army Corps of Engineers has acknowledged that neither Perry Homes, its subsidiaries nor its contractors sought a “jurisdictional determination” before filling the wetlands at the Woodridge Village construction site. Further, the Corps is now investigating whether those wetlands do fall within its jurisdiction and would have required a permit to fill.

We are a long way from determining whether there was any wrongdoing in that case and I am not alleging any.

But, in general, what could possible penalties be in wetlands cases and how are they determined? Several documents found on the EPA website give insight into how they think and assess penalties. Below is a summary plus links to the documents and several additional useful pages on the EPA enforcement website.

Corps and EPA Share Responsibility for Enforcement

The Corps of Engineers and EPA share responsibility for enforcing Section 404 of the Clean Water Act, which covers wetlands. Both civil and criminal penalties can apply to wetlands violations depending on circumstances. This page on the EPA’s site explains the shared authority.

Goals of Enforcement Program

EPA’s Section 404 enforcement program has three goals:

  • Protect the environment and human health and safety
  • Deter violations
  • Treat the regulated community fairly and equitably. 

Factors Considered in Initiating an Enforcement Action

A wide variety of factors determine whether EPA initiates an enforcement action. They include:

  • Amount of fill
  • Acres of wetlands filled
  • Environmental significance
  • Discharger’s compliance history

Largest Criminal Action in EPA History

At one end of the spectrum, you have criminal cases. Since enactment of the Clean Water Act, EPA and the Corps have used their criminal enforcement authorities sparingly, only for the most flagrant and egregious Section 404 violations. The most significant case ever:

  • On February 25, 2005 in the Southern District of Mississippi, a jury convicted Robert J. Lucas, Jr., his daughter, Robbie Lucas Wrigley, and his engineer, M.E. Thompson, Jr., on all 41 counts of an indictment which charged violations of Sections 402 and 404 of the Clean Water Act, mail fraud and conspiracy.
  • Lucas developed and sold hundreds of lots in the Big Hill Acres subdivision that impacted approximately 260 acres of wetlands without Corps of Engineers’ permits.
  • In developing the lots, Lucas filled wetlands for the construction of driveways and septic systems. The construction persisted after Lucas was ordered to desist by EPA and other agencies.
  • Wrigley sold lots and otherwise participated in the conspiracy knowing that the lots were saturated and could not support septic systems. 
  • M.E. Thompson, a professional engineer, wrongfully certified that the lots were suitable for septic systems, even after being told by the local health department to the contrary. 
  • In December 2005, the District Court sentenced Lucas to 108 months in prison and Wrigley and M.E. Thompson, Jr. to 87 months apiece.  The court fined each of the Defendants $15,000, assessed restitution of $1,407,400 for each Defendant and fined Lucas’s two companies Big Hill Acres, Inc., $4,800,000 and Consolidated Investments, Inc., $500,000.
  • The case represents the most significant criminal wetlands case in the history of the Clean Water Act.
  • The Decision was affirmed on appeal and the Supreme Court refused to consider it.

Factors Considered in Assessing Fines

At the other end of the spectrum, you have civil penalties with fines that can range from slaps-on-the-wrist to substantial.

This document explains how the agencies determine penalties. They use multiple factors, each with weighting, that are fed into a formula. EPA designed the formula to:

  • Require violators to promptly correct violations
  • Remedy harm caused by violations
  • Recover any economic benefit that accrued to violators, thereby assuring a level playing field for those who obey the law
  • Deter future violations
  • Promote fair and equitable treatment nationwide
  • Promote expeditious resolution (fast settlement)

Section 309 (d) of the CWA sets penalty factors for judges to use when determining the appropriateness of civil penalties.

  • Seriousness of violations
  • Economic benefit resulting from violations
  • History of violations
  • Good faith efforts to comply
  • Economic impact on violators
  • Other matters as justice may require

They refer cases to the Department of Justice when court ordered injunctive relief is necessary to remedy a violation, or when the violator has failed to comply with an administrative compliance order or consent order.

Formula Used in Assessing Fines

When calculating minimum settlement penalties, they use the following formula.

Penalty = Economic Benefit + (Preliminary Gravity Amount +/- Gravity Adjustment Factors) – Litigation Considerations – Ability to Pay – Mitigation Credit for Supplemental Environmental Projects

This determines the minimum penalty amount that the government will accept in the settlement of a case, in other words, “the bottom-line penalty” amount.

Economic Benefit Component Explained

Persons who violate the CWA by discharging dredged and/or fill material without Section 404 permit authorization or in violation of a permit may have obtained an economic benefit by obtaining an illegal competitive advantage (“ICA”), or as the result of delayed or avoided costs, or by a combination of these or other factors.

The objective of calculating and recovering economic benefit is to place violators in no better financial position than they would have been had they complied with the law.

Gravity Component Explained

The “gravity” component of the calculation considers whether the discharge endangers the health and welfare of persons. The greater the threat, the higher the weight. If the discharge has resulted in an imminent and substantial endangerment, they will apply the highest value for this factor.

Other Considerations

Secondary or Off-Site Impacts such as the extent to which discharges caused erosion and downstream sedimentation problems are considered.

Judges also consider the duration of violation. That’s the length of time that fill material has remained in place. Generally, the longer the duration, the higher the weight assigned to this factor.

Judges can also apply a Recalcitrance Adjustment Factor. The “recalcitrance” factor may be used to increase the penalty based on a violator’s bad faith, or unjustified delay in preventing, mitigating, or remedying the violation in question.

As distinguished from culpability, recalcitrance relates to the violator’s delay or refusal to comply with the law, to cease violating, to correct violations, or to otherwise cooperate with regulators.

Classes of Penalties

Section 309(g) of the Clean Water Act establishes two classes of administrative penalties. They differ with respect to maximum assessment for violations.

A Class I penalty may not exceed $11,000 per violation, or a maximum amount of $27,500.

A Class II penalty may not exceed $11,000 per day for each day during which the violation continues, or a maximum amount of $137,500.

EPA may also seek:

  • Injunctive relief
  • Criminal penalties (fines and/or imprisonment),
  • Civil penalties through judicial action.

Criminal Vs. Civil

When the Agency refers cases to the Department of Justice (DOJ) for civil and/or criminal enforcement under Section 309(d), EPA may seek civil penalties of up to $27,500 per day for CWA violations including the unauthorized discharge of fill.

Criminal prosecution in wetlands cases usually involves someone who knowingly or negligently discharges fill, makes false or misleading statements on permit applications, or endangers other people.

For More Information and Exact Text

The discussion above summarizes 32-pages of technical/legal EPA and Army Corps documents. I urge you to consult the sources directly for their exact wording.

Other useful links, for those seeking even more information, include:

Posted by Bob Rehak on 11/18/2019

811 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.

Text of Ben’s Branch Agreement Between Bear Branch Trail Association, Friendswood and HCFCD

Rumors of a Ben’s Branch agreement between Bear Branch Trail Association, Friendswood and Harris County Flood Control District have circulated for weeks. On Wednesday, November 13, 2019, the deal became official when Diane Trautman, the Harris County Clerk, recorded the easement. Here is exactly what the easement does and doesn’t allow the various parties to do along Ben’s Branch.

Ben’s Branch below St. Martha’s Catholic School is characterized by hairpin turns and trees growing right down to and into the stream.

49-Page Ben’s Branch Easement Finally Signed

The easement is like a contract that spells out the rights, obligations and limitations of each party.

Here is the complete text of the 49-page document. Below is a summary.

Bear Branch Trail Association Rights and Obligations

This is an agreement between three parties that modifies the original deed of gift between Friendswood and the Bear Branch Trail Association (BBTA).

BBTA:

  • Gives Harris County Flood Control the right to operate in an area 100 feet wide, 50 feet on either side of the creek’s centerline.
  • Retains the right to maintain and operate existing trails, bridges, low water crossings.
  • May construct, install, maintain and operate new trails in the easement area as long as they don’t obstruct water flow, cause erosion or hinder HCFCD’s “de-snagging” efforts. De-snagging is the removal of trees that have fallen or are falling into the creek.
  • Must share plans for new trails, bridges, etc. with HCFCD and HCFCD must approve them before any construction begins.
  • Acknowledges that HCFCD equipment may damage trails and agrees not to hold HCFCD liable for repairs.
  • Remains solely responsible for the safe condition and maintenance within the easement area and for repairs to any damage.
This low water crossing north of Bear Branch Elementary may not be removed according to the terms of the easement. Some observers have noted trees “spearing” into the narrow culverts and backing water up. But HCFCD cuts trees into small enough sections to let them pass through such openings.

Harris County Flood Control Rights and Obligations

HCFCD may:

  • Perform de-snagging operations related to flood control and drainage.
  • Clear, cut, drop, stack and stockpile trees, shrubs, vines, and vegetation for the sole purpose of flood control.
  • Grade and stabilize banks to protect against erosion and maintain drainage.
  • Plant grass, or use rip rap or man-made materials to reduce bank erosion.
Trees constantly fall into Ben’s Branch because of bank erosion. When floating trees catch on other trees or roots during floods in the narrow channel, they can form “beaver dams” that back water up into adjoining streets, homes and businesses.

HCFCD can/will NOT:

  • Widen, deepen, enlarge, straighten or smooth the channel in such a way as to increase channel capacity.
  • Maintain or repair trails or bridges, but may repair erosion that threatens them.

HCFCD has no responsibility to repair or replace storm sewer outfalls or to repair erosion around them.

Friendswood Agrees to All of Above Plus…

Friendswood agrees to all of the above. Friendswood also agrees that the terms of the easement will not trigger the automatic reversion of ownership from BBTA to Friendswood that the original deed of gift specified.

Signatories

John Hammond of Friendswood signed the easement on Monday, November 11, 2019.

Kathryn Palmer, president of BBTA signed it on Tuesday, November 12, 2019.

Diane Trautman, the Harris County Clerk signed and recorded it on November 13, 2019.

Roadblocks to Flood Control Maintenance Now Removed

This means that Flood Control can now begin de-snagging and other maintenance activities within 50 feet of either side of Ben’s Branch. The area affected lies between Woodland Hills Drive and Kingwood Drive.

Geographic Limitations

North Park, Woodland Hills, Kingwood Drive and West Lake Houston Parkway define the boundaries of BBTA.

Other community and commercial associations control the creek outside of those boundaries. But those areas are already channelized and maintained by HCFCD for the most part.

Note: Those who don’t live within these boundaries may be confused by the names. Ben’s Branch is the name of the creek that runs through Bear Branch Village, Kings Forest and Hunters Ridge. The Bear Branch Trail Association overlaps all three of the community associations, but technically has nothing to do with them. BBTA is solely responsible for the greenbelts and greenbelt trails. It has nothing to do with swimming pools or deed restrictions. This can differ in other parts of Kingwood.

Compromise Between Natural Aesthetics and Flood-Risk Reduction

Everyone should realize that this easement represents a compromise. Any loss of natural aesthetics is the price of reducing flood risk to their neighbors. The three parties worked on this for more than a year.

Parts of the greenbelt will be thinned out, but you shouldn’t see wholesale widening of the creek into a massive channel. As a consequence, people who live along the creek should realize that this doesn’t offer the highest degree of flood protection. But it does help protect both greenbelts and property owners much more than before.

St. Martha Catholic School, Kids In Action, and homes on either side of the creek that flooded should be optimistic about this agreement.

The densely forested nature of the preserve along each side of the creek will look less dense. However…

The Ben’s Branch greenbelt is a minimum of 300 feet wide. In most places, it’s 400-600 feet wide. And in some places, it measures as much as 800 feet wide. This agreement affects only 100-feet.

Thus, two-thirds to seven-eighths of the natural area will remain the way it looks now. That sounds like a reasonable price to pay for helping to protect neighbors and property values in the entire neighborhood.

Posted by Bob Rehak on 11/17/2019

810 Days since Hurricane Harvey and 59 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.

HCFCD Demolishes More Townhomes in Forest Cove

Harris County Flood Control District (HCFCD) has demolished more bought-out townhome complexes in Forest Cove in the last few weeks. Contractors leveled the areas circled in white below and carried away the debris.

HCFCD has already demolished the complexes circled in white. Part of the complex on Timberline burned during the week of July 4th earlier this year.

That means HCFCD has removed approximately 40% of the total units already.

According to Flood Control, buyouts in a situation like Forest Cove are complex. They can take longer than normal because HCFCD must close on EACH unit in a complex before they can demolish ANY.

Going, Going, Gone

Architects designed the lower floors of these units to flood. But during Harvey, water reached well into the second floors.

Residents once labored over homes now reduced to rubble.
They could soon make way for a linear park, being proposed by the City of Houston Parks Board.

Future Plans for Area

When HCFCD completes the buyouts and demolition process for each complex, the area will revert to some kind of green space. It could return to nature or it could turn into a park. The Houston Parks Board has made several presentations to KSA and the Forest Cove Property Owners Association about building a linear park. The park would connect the Kingwood Trail Network to the Spring Creek Greenway via the Bevil Jarrell Memorial pedestrian bridge over the San Jacinto River.

From Buyouts to Beautiful

If the Parks Board, City and Harris County can pull this off, it would turn a negative into a positive. I don’t mean to disrespect the memories of the proud people who once carved out beautiful lifestyles near the river. But since Harvey, the flood-ravaged townhomes became a haven for looters, squatters, graffiti artists and illegal dumpers. It’s best to let go of the memories and move on at this point. HCFCD has a process for turning areas like this into recreational amenities.

Posted by Bob Rehak on 11/16/2016

809 Days since Hurricane Harvey

Army Corps to Investigate Potential Wetland Violations on Perry Homes’ Woodridge Village Site

The Army Corps of Engineers is investigating whether Perry Homes, its subsidiaries and contractors violated Section 404 of the federal Clean Water Act. The Corps has regulatory authority for any fill material dumped into waters of the U.S. Those include perennial tributaries and adjacent wetlands.

No Record of Request for Jurisdictional Determination

When developers encounter wetlands, normally they seek a jurisdictional determination from the Corps. They want to ensure they are not violating the Clean Water Act. However, neither Perry Homes nor their subsidiaries (PSWA and Figure Four Partners) apparently sought such a determination. Neither did LJA Engineering, according to Corps records.

In June, a FOIA (Freedom of Information Act) request filed with the Corps of Engineers turned up NO RECORDS of any such request for the Woodridge property. See below.

Army Corps response to June 5, 2019, request for records pertaining to a request for jurisdictional determination on Woodridge Village Wetlands.

The LJA Engineering Drainage Analysis never even mentions wetlands. Wetlands are highly protected because of their ability to filter and retain floodwater, among other things. This multipage article by the USGS describes all the functions of wetlands and legislation affecting them.

Elm Grove Director Requests Investigation

In October, 2019, Beth Guide, a director of the Elm Grove Homeowners Association, went a step further than my FOIA request. She asked the Corps to investigate the legality of the loss of Woodridge Village wetlands. On November 13, 2019, US Congressman Dan Crenshaw received a letter from the Corps stating that the Corps was, in fact, investigating Ms. Guide’s request.

Corps Seeking Access to Property

The Corps is currently contacting Perry Homes (or subsidiary, Figure Four Partners) for access to the site. The Corps characterized the investigation as “an open purported unauthorized activity investigation.”

Colonel Timothy R. Vail, the Corps’ District Commander said, “…we continue to gather all the facts to determine if there is a violation of any of our statutes and if so, determine what might be the appropriate resolution.”

Presence and Importance of Wetlands

Numerous residents near the property noted the wetlands in question. The wetlands also appear in the USGS National Wetlands Inventory.

From the USGS National Wetlands Inventory

For the full text of the letter from the Corps to Congressman Crenshaw, click here.

Ms. Guide believes loss of these wetlands played a role in three floods which struck Elm Grove on May 3, May 7 and September 19 of this year. Before the loss of the wetlands, none of the surrounding neighborhoods ever flooded, according to nearby neighbors. Some of them lived in their homes for more than 30 years.

Typically, wetland vegetation slows down runoff. On the other hand, clearcutting/filling wetlands accelerates runoff. This simple science experiment shows how.

Accelerating runoff reduces the time of accumulation for floodwaters. That means more water reaches ditches faster and at the same time; none is retained upstream. That, in turn, makes floods peak higher.

Posted by Bob Rehak on 11/16/2019

809 Days since Hurricane Harvey and 58 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.

Perry Homes’ Woodridge Village Investment Could Be Costliest Ever

Usually when you make an investment, the worst thing that could happen is that you lose all your principle. But Perry Homes could loose a hundred times more than they paid for Woodridge Village land. That takes special talent.

Out-of-Pocket Costs

The land that Woodridge Village sits on didn’t cost much; much of it was wetlands and many streams converged there. Regardless, a Perry Homes subsidiary, Figure Four Partners, bought the land. Montgomery County Appraisal District values the two main parcels at less than a million dollars. Together they comprise more than 80% of the 268-acre project. (See screen captures below from Montgomery County Appraisal District website.)

Real Costs Could Be 100X Greater

Now let’s look at the real costs to Perry. Just to screw up the land, they paid for:

  • An engineering study that underestimated drainage needs by at least 40%
  • Clearcutting and grading 268 acres
  • Filling in natural drainage
  • Excavating two detention ponds (out of five they promised)
  • Soil tests and a geotechnical report
  • A mile of pavement to the middle of nowhere
  • Two large box culverts
  • Storm drains

Let’s say that cost another five million.

But all of that contributed to the flooding of approximately 200 homes in May and 350 in September. Let’s assume the damage to each home totaled $100,000. That comes to about $55,000,000.

Furniture, appliances, rugs, window coverings and other contents? Let’s assume an average of $40,000. That would total another $22,000,000.

Let’s also assume that 300 cars flooded. Average cost – $30,000. Bingo. $9 million.

Now let’s estimate the reduced marketability of homes that flooded. To do this, let’s assume an average price of $200,000 per home and a 20% reduction. That would cost homeowners $40,000 each in the market value of their homes. That’s another $22,000,000.

And we haven’t even factored in the legal fees of J. Carey Gray, counselor extraordinaire.

If juries rule in favor of the flood victims, that million dollar investment could add up to more than $100 million in potential liabilities…before any penalties for negligence and/or gross negligence kick in.

Corps Now Investigating Wetland Violations

Perry Homes bought wetlands and must have thought that no one would notice when they filled them in. They didn’t even bother to request a jurisdictional determination from the Corps for the wetlands. That reduced costs even more. It’s a proven formula in business; minimize costs to maximize profits.

But perhaps Perry Homes went too far. People did notice. The wetlands that they conveniently ignored fall under the jurisdiction of the Army Corps. And the Corps is now investigating potential violations of Section 404 of the Clean Water Act. That could get expensive all by itself.

Like Building Homes at the End of a Gunnery Range

It just keeps getting worse for Perry. This was kind of like buying land to build homes at the end of a gunnery range. A little risky.

But it’s too late to rethink that decision. No one will ever want to buy a home on this site. It’s less marketable than swampland near Chernobyl.

There’s another rule of thumb in business. When you find yourself in a hole, stop digging. And that’s exactly what Perry has done. They have stopped work on the site for months. Work on detention ponds that would help protect people downstream from future flooding is going undone.

That means the numbers above could balloon with the next big rain. Or a negligence ruling by a jury. Yep, we’re in double Jeopardy now.

Career-Limiting Moves

Whoever made the decision to develop Woodridge Village definitely made a CLM (career-limiting move). At this point, even Perry Homes employees not associated with the decision must worry about their Christmas turkeys. Few careers or companies survive blunders that become case studies for how not to do something.

Eroding Profit Margins

Because of faulty assumptions and corner cutting, Perry Homes put itself between a rock and a hard place. They’ve managed to turn a million dollar investment into a potential $100 million liability. They can’t develop this property profitably now. And they can’t sell it. Who would want to buy this land and inherit the liability every time a storm cloud floats by?

To protect downstream homes from flooding, they would have to expand the detention ponds by at least 40%. And that would eliminate so many homesites that costs could exceed income. I say “at least” because the issue is not just Atlas-14 compliance. While digging the S2 detention pond, contractors hit water that’s not going away.

The S2 Detention Pond has lost about 20-30% of its capacity. The bottom 3-5 feet have been filled with ground water since contractors started digging to the target depth.

That means they can’t achieve their detention goals by going deeper; they’ll have to go wider. And that will cut into marketable land even more.

Toxic for Perry Homes

Let’s face it. When Perry Homes bought this property, Kathy Perry Britton swallowed a poison pill. Woodridge Village now has a toxic reputation that will infect the rest of Perry Homes. No one will ever be able to trust anything Perry Homes says again.

Just imagine how bad this could get for Perry Homes if Montgomery County and the City of Houston really started scrutinizing their permit applications in the future.

But what to do with this land? If you’re Kathy Perry Britton trying to spit shine the legacy of dear old dad, you can’t keep it. And you can’t sell it. You can’t even give it away. No land conservancy organization would take it until the damage done to wetlands and streams was remediated. That could take decades.

The Real Value of Wetlands

However, there are two pieces of good news in this mess.

  • If Perry Homes implodes, it won’t take a lot of investors with it; the company is private.
  • Perry Homes may serve as a lesson to other developers and teach them that the real value of wetlands is their downstream legal costs.

Time To Be Decisive

Just remember, Ms. Britton. Historically, 85% of Houston floods are non-tropical. So if you think you have eight more months to figure this out, think again.

Posted by Bob Rehak on 11/15/2019

808 Days after Hurricane Harvey and 57 after 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.

Last Phase-1 Dredge Gone; Phase 2 Will Be Announced Next Week

The last dredge from the Army Corps’ Emergency West Fork Emergency Dredging Program has left the river. State Representative Dan Huberty says plans for Phase 2 of dredging will be announced next week.

Great Lakes Dismantles Dredge

The last remaining dredge, operated by Great Lakes Dredge and Dock, finished dredging a 500,000 cubic yard contract extension in the area of the West Fork mouth bar around Labor Day. That brought the total amount of sand and sediment removed from the West Fork to about 2.3 million cubic yards.

The Great Lakes Dredge waited near the mouth bar for six more weeks, as the owners hoped for yet another contract extension that didn’t come. Finally, in mid-October, Great Lakes started removing its dredge, booster pumps, pipe and other support equipment. That was about the time the City applied for another FEMA grant to help with more dredging.

Now You See It

On November 4th, the dock at the Army Corps Command Post opposite Forest Cove was bustling with activity, as workers dismantled the Great Lakes Dredge. Note all the pipe in the background. Each 40 food section weighs 4,000 pounds.

Now You Don’t

Photo taken on Tuesday, 11/12/19. Dredge is gone.

With Great Lakes and Callan Marine gone, any additional dredging efforts will start from scratch. And we need a Phase 2.

Millions of cubic yards remain in the West Fork Mouth Bar alone. And Imelda deposited immense of amounts of sediment in a growing East Fork Mouth Bar. And let’s not forget upstream dredging near US59 and the County’s planned Edgewater Park, which will have a public boat launch.

Phase 2 Options Moving Forward

Long-Shot Option: On October 15 or thereabouts, City of Houston Flood Czar Stephen Costello submitted another grant request to FEMA for additional money to dredge the mouth bar. That request is still pending. But it isn’t our only hope.

Sure-Thing Option: Luckily, thanks to State Representative Dan Huberty’s Amendment to SB-500, earlier this year, the State Legislature earmarked $30 million for dredging Lake Houston. Let’s call that Phase 2.

The crucial text of the Huberty Amendment reads, “… $30 million is dedicated to the Texas Water Development Board to provide a grant to Harris County for the purchase and operation of equipment to remove accumulated siltation and sediment deposits located at the confluence of the San Jacinto River and Lake Houston.”

According to Huberty, the County, City and State have been examining alternative plans and evaluating their cost-effectiveness. Huberty expects to hold a press conference next week to announce next steps. Stay tuned.

Please note that the two options are not mutually exclusive. The FEMA Grant could still come though and be used to extend Phase 2 dredging.

Posted by Bob Rehak on 11/15/2019

808 Days after Hurricane Harvey

Triple PG Sand Mine Denies Attorney General Claims

Surprise. Surprise. The Triple PG Sand Mine has denied all of the claims by the Texas Attorney General in the state’s lawsuit. The attorney general alleged that breaches in the mine’s dikes allowed wastewater to escape into tributaries of Lake Houston, the source of drinking water for two million people.

One Sentence Denial

When I first read the denial, its brevity shocked me – one sentence. It basically says to the attorney general “prove your case.”

I quote: “…Triple PG generally denies each and every allegation contained in Plaintiff’s Original Petition, and all amendments and supplements thereto, and demands strict proof thereof by a preponderance of the evidence.”

I called a lawyer to ask whether such brief denials were common. The answer: yes. My next question: Why?

Why the Brief Denial?

Basically, had the defendant made no reply to the claims within 20 days, it could have had a default judgement entered against it. So this blocks a default judgment. This also stops the clock, forces the Attorney General to reveal more of its case, and gives the defendant more time to develop an affirmative defense … if it has one. Triple PG can always amend its reply later.

AG Already Laid Out Evidence

The TCEQ has performed onsite inspections and overflights. The TCEQ report was made public with the AG filing. But the TCEQ isn’t the only entity investigating. So by delaying a settlement, the mine could be opening itself to additional fines. And the discovery of additional evidence.

The Mine Safety and Health Administration is also investigating the mine thanks to complaints from dozens of residents around the mine.

The AG could also amend its suit if new evidence becomes available.

In addition, numerous residents, including Tony Buzbee, candidate for the Mayor of Houston, have photographed the breaches in this mine’s dikes.

The longer they wait to settle this case, the higher per-day fines could go.

Hearing Delayed Again

The hearing scheduled for November 12 on a permanent injunction against the mine has now been rescheduled for November 25th.

Deny This

When I flew over the mine on November 4, 46 days after Imelda, Triple PG was only starting to fix the second of eight breaches. The TCEQ did not even find all of those breaches because many roads within the mine had washed out when they paid their surprise visit. So delays could add to Triple PG’s woes as they also run up legal fees.

Here’s what breach #2 looked like on 11/4/2019.

Breach between Triple PG sand mine pit (upper left) and White Oak Creek lower right, photographed on 11/4/2019.
Same breach photographed from reverse angle over pit. Note the white scum floating out of the mine.
Third angle shows more scum and trees blown inward toward the mine during the breach.

The Defendant’s response also included a one sentence prayer. They prayed that all charges would be dismissed and that they would be entitled to further relief, which they did not specify. The only other thing the AG sought was a permanent injunction barring the mine from discharging wastewater. But they might seek to recover court costs if found no guilty.

Posted by Bob Rehak on 11/14/2019

807 Days after Hurricane Harvey and 56 after Imelda

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

Aerial Photos of Lake Houston Dam Dramatize Need for More Gates

Before Harvey hit, we knew tremendous rains were coming. But we could do little to prepare Lake Houston for the onslaught. The small gates you see in the photo below release a combined 10,000 cubic feet per second (CFS). That’s nothing compared to the 150,000 from the gates at the Lake Conroe Dam.

Lake Houston’s gates release a maximum of 10,000 CFS.
The gates at Lake Conroe can release water at up too 150,000 CFS...15X faster.

We Were Sunk

When Lake Conroe had to open its gates during Harvey, we were sunk. Literally. Had we had bigger, more modern gates on Lake Houston, we might have been able to lower the lake fast enough to avoid flooding thousands of homes.

11-Foot High Wall of Water Cascaded Over Spillway

Of course, Lake Houston also has a spillway. In fact, the spillway represents the primary way to shed water from the lake. The top of that spillway is at 42.38 feet.

The primary overflow mechanism on the Lake Houston Dam: a 3,160-foot long spillway.

But Harris County Flood Control District’s (HCFCD) final report on Hurricane Harvey stated that a record pool elevation of 53.1 ft was recorded at the Lake Houston Spillway.

Thus, at the peak of Harvey, a wall of water 11 feet high was flowing over that spillway.

HCFCD estimated that’s 5 times the average flow of Niagara Falls and that the flow rate would fill NRG Stadium in 3.5 minutes.

Ten More Gates Could Have Lowered Harvey Flood by 1.9 Feet

HCFCD commissioned a study by Frees & Nichols about what effect additional gates would have in the event of another Harvey. The study found that ten more gates could have lowered the level of the flood by up to 1.9 feet (about 23 inches). That would have saved thousands of homes from flooding in the Lake Houston Area.

Interestingly, the WAY more gates would prevent flooding was not through pre-release; Harvey would have refilled the lake in a matter of hours and the storm lasted days. Rather, additional gates would have widened the spillway area so more water could move over the dam every second. Think of it in these terms: twice the width, half the height. (That’s an over-simplified example of how the principle works; ten more gates would not actually double the width.)

Is Pre-Release Practical?

The Frees & Nichols study only considered one case – Harvey. For lesser floods, the gates could help make pre-release a viable strategy for the Lake Houston Area. At least in my opinion.

Here’s how.

  • More gate capacity could help offset the volume of water released from Lake Conroe, to reduce the risk of Conroe flooding Houston again.
  • More gate capacity could release more water in less time, thus reducing uncertainty when pre-releasing before a storm. That would allow officials to delay releasing water until they were sure they needed to. And that could save precious water in the event that a storm veers off in another direction at the last minute. We may know that a storm will cross the area. But it’s much harder to tell where the heaviest rainfall will occur. For instance, during Imelda, parts of the East Fork received more than 20 inches of rain while Lake Conroe received only two.

In the last year, the City prevented homes from flooding several times by pre-lowering the lake. But the small gate capacity meant that we had to start releasing water DAYS beforehand to make an appreciable difference in the lake level. That has to be nerve wracking for Public Works.

Where the Gate Project Stands

Earlier this year, the City of Houston secured a FEMA grant to design and construct more gates for the Lake Houston Dam. The two-phase grant covers design and construction. Each phase must be completed within 18 months, though extensions are possible. Currently, we are four months into the 18-month design phase. That means we should see more gates by mid-2022.

In the meantime, the photos below give you a feeling for the immensity of the project.

The height of the trees on the San Jacinto River below the dam gives you a feeling for the height of the dam.
Looking SE. Repairs are underway to the structures below the Lake Houston dam. Note the trees caught on top of it.
Looking west over the Lake Houston Dam which dates back to 1953.

Posted by Bob Rehak on 11/14/2019

807 Days since Hurricane Harvey

Provisions for Off-Site Overland Sheet Flow in Montgomery County Drainage Criteria Manual Warned Perry Homes of Dangers to Elm Grove

Section 5.3.5 of the Montgomery County Drainage Criteria Manual (Pages 83-84) specifically address flooding of established subdivisions by land under development. For example when Elm Grove was flooded from clearcut land in Woodridge Village. Had Perry Homes, its subsidiaries and contractors followed the requirements in the Manual, Elm Grove might not have flooded.

Provisions Adequate for Ultimate Development Can Be Severely Deficient for Intermediate Stages

The section on Offsite Overland Flow starts out by saying, “Sheet flow from undeveloped areas into an existing or a proposed subdivision can create a localized flood hazard by overloading street inlets and/or flooding individual lots.” This is exactly what happened to Elm Grove Village and North Kingwood Forest in May and September of this year. City of Houston storm drains already taxed to the max became overloaded when water broke out of Woodridge Village and started flowing down the streets of Elm Grove and North Kingwood Forest.

Streets of Elm Grove during May 7th Flood show danger of not planning for runoff during intermediate stages of development.

The text in the Drainage Manual then continues. “Any drainage plan for a proposed subdlvision submitted for review and approval by the Montgomery County Drainage Administrator must address the drainage of all adjacent lands. Both under undeveloped and fully developed conditions. A plan which may be adequate under conditions of ultimate development can be severely deficient during intermediate conditions of development due to sheet flow from adjacent undeveloped land. Provisions must be made to divert 100-year sheet flows to a channel system or to the secondary street and storm sewer system.” [Emphasis added.]

The LJA Drainage Analysis claimed Woodridge would create “No adverse impacts to neighboring developments or Taylor Gully.” However, the LJA analysis did not:

  • Discuss the drainage of adjacent lands, such as Elm Grove.
  • Discuss intermediate conditions of development; they focus only on fully developed Phase 1 and Phase 2 Conditions.
  • Mention the phrase “sheet flow” once.
  • Make provisions to divert 100-year sheet flows.

No Swales to Redirect Sheet Flow

The next paragraph of the Montgomery County Drainage Criteria Manual starts, “Redirection of the sheet flow can usually be achieved through the use of drainage swales located in temporary drainage easements along the periphery of the subdivision.” Perry Homes built no such swales … at least not adequate ones.

No Berms to Block Sheet Flow

Later in that same paragraph, the Manual talks about building berms between the swales and adjoining neighborhoods to prevent the flow from overrunning the swale. Unfortunately, on May 7th, no such berms existed. They did for Imelda, but they proved inadequate to divert the sheet flow and they had gaps in them.

No Additional Storm Sewer Capacity

The next paragraph talks about building “additional inlet and storm sewer capacity … to prevent prolonged street ponding in the (neighboring) subdivision resulting from flow from the undeveloped area.” That didn’t happen either.

No Planning for Rain Before Detention Ponds Fully Built

Perry Homes took none of these precautions. LJA never planned for them (as far as I can see from publicly available documents). Reading LJA’s drainage analysis, one gets the impression that no one ever even conceived of rainfall before they could build all the detention ponds for Woodridge Village. That turned out to be yet another fatal assumption. Despite all the warnings and mitigation advice in Montgomery County’s Drainage Criteria Manual.

Add this to a long and growing list of other things they ignored, underestimated, or mischaracterized.

Stay Tuned for More

The list goes on and on. I have barely started. This series could last for weeks. The MoCo Drainage Manual goes on for almost 200 pages. And Woodridge Village is far from the only Perry Homes Development.

Perhaps the biggest question in all of this is for the Montgomery County Judge and Commissioners. How do plans like this get approved?

Posted by Bob Rehak on 11/12/2019 with thanks to Jeff Miller

806 Days since Hurricane Harvey and 55 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.

For those who are interested, I have reprinted verbatim the full text of Section 5.3.5 from the Montgomery County Drainage Criteria Manual below.

Section 5.3.5 Off-Site Overland Flow from the Montgomery County Drainage Criteria Manual (See Pages 83 and 84)

Sheet flow from undeveloped areas into an existing or a proposed subdivision can create a locallzed flood hazard by overloading street inlets and/or flooding individual lots. Any drainage plan for a proposed subdlviston submitted for review and approval by the Montgomery County Drainage Administrator must address the drainage of all adjacent lands. Both under undeveloped and fully developed conditions. A plan which may be adequate under conditions of ultimate development can be severely deficient during intermediate conditions of development due to sheet flow from adjacent undeveloped land. Provisions must be made to divert 100-year sheet flows to a channel system or to the secondary street and storm sewer system.

Redirection of the sheet flow can usually be achieved through the use of drainage swales located in temporary drainage easements along the periphery of the subdivision. As the adjacent area develops to the point at which the street system can effectlvely handle the sheet flow condition, the temporary drainage swales and easements may be abandoned.. The drainage swales should be relatively shallow, with the excavation spoiled continuously along the subdivision side of the swale to prevent flow from overrunnmg the swale. The swale should have sufficient grade to avoid standing water, but not enough to create erosion problems. Generally, a minimum. grade of 0.1% should be maintained with the maximum grade strongly dependent on local soil conditions.

Such temporary drainage swales may be directed to inlets in the storm sewer system or, preferably, to the appropriate primary outfall channel. lf an undeveloped area is to be drained to a storm sewer, additional inlet and storm sewer capacity must be provided to prevent prolonged street ponding In the subdivision resulting from flow from the undeveloped area. Provisions for this flow must also be included in the design of the street drainage overflow system. The design of temporary drainage swales directed to Montgomery County drainage channels must include adequate pro­visions to drop the flow into the channel through an approved structure in order to avoid excessive erosion of the channel banks.

Outfalling the temporary swale into the backslope drainage system for the channel is unacceptable because the backslope drainage interceptor structures are not adequate to convey flow from an off-site swale. A typical approved structure is shown in Figure 6.3, With the exception of the pipe dimension. The pipe must be sized to handle the 100-year flow from the off-site area.

Perry Homes Apparently Violating Montgomery County Development Regulations, Too

On September 26th, the City of Houston fired off a Cease-and-Desist Letter to Perry Homes regarding its Woodridge Village development just north of Elm Grove. The letter warned Perry and its subsidiaries to stop sending sediment into Houston storm drains. Now it appears the Perry gang is violating Montgomery County regulations, too. Let me call your attention to page 28 of the Montgomery County Subdivision Rules and Regulations. The sediment section reads (and I quote verbatim):

“IV. SEDIMENT CONTROL AND SEDIMENTATION PONDS. The subdivider shall provide effective sediment control measures in the planning and construction of subdivisions. Practical combinations of the following technical principles should be applied: 

  1. No more than ten acres of land in road right-of-way shall be exposed at any one time during development, without prior approval of the County Engineer. 
  2. When land is exposed during development, the exposure shall be kept to the shortest practical period of time. 
  3. Temporary vegetation and/or mulching shall be used to protect critical area exposed during development. 
  4. Sediment basins and traps shall be installed and maintained in properly designated places to remove sediment from runoff waters on land undergoing development. 
  5. Provisions shall be made to accommodate the increased runoff caused by changed soil and surface conditions during and after development. 
  6. The permanent final vegetation and structures shall be installed as soon as practical in the development. 
  7. The development plat shall be fitted to the topography and soils so as to create the least erosion potential.”

Let’s compare these principles with Perry’s practices.

Strike One

Shall provide effective sediment control measures in construction?

Photo taken shortly after May 7th flood on southern section of Woodridge Village.

Strike Two

No more than 10 acres of land shall be exposed at any one time?

How about 268 acres?

Strike Three

Land exposed for shortest practical period of time?

Drone footage of Woodridge Village southern section from May 9.
Shot of same area (from different angle) six months later.

Strike Four

Temporary vegetation?

Photo taken 11/4/2019, months after land was clearcut AND after two major floods.

Strike Five

Provisions to accommodate increased runoff?

Block after block of Elm Grove residents dragged their lives to the curb after being inundated by increased runoff from May 7th and Imelda.

Strike 6

Final structures installed as soon as practical? Let’s look at detention ponds…that aren’t there…despite months of ideal construction weather.

The N1 Detention pond should have been installed in the foreground months ago.
The N2 Detention Area (green triangle excavated by MoCo in 2006) was supposed to be expanded, but was not.
The N3 detention pond was to stretch from Taylor Gully in the bottom of the frame, almost to the tree line at the top. But nothing has been done.

Strike 7

Plat fitted to soils to create the least erosion possible?

Wetlands abounded on this property.
But Perry contractors filled in natural wetlands and streams.

Seven Strikes and You’re Out?

Not if you’re Perry Homes. Because when I first complained to the TCEQ about sediment flowing from the site in May, the TCEQ referred the investigation to Montgomery County. Then Montgomery County referred it to LJA Engineering. Perry Homes, of course, hired LJA to do the engineering on this site. So LJA was investigating itself and its client. Surprise, surprise, everyone called the problem fixed after installing some silt fencing in May. But it wasn’t fixed. Five months later, even more people flooded during Imelda than on May 7.

With the exception of some work on detention pond S2 last summer, Perry has not bothered to:

  • Expand detention capacity
  • Plant vegetation
  • Install sediment basins
  • Reduce runoff
  • Compensate for the wetlands and streams they filled in

Perry has done nothing in SEVEN months that reduced flood risk to Elm Grove. The work they did last summer didn’t prevent flooding in September. And they haven’t done anything since.

Yet Kathy Perry Britton, Perry Homes CEO, talks about the value of character, integrity and decisive action. The value of practicing good corporate responsibility. And Perry Homes’ commitment to excellence and distinguished reputation.

News flash, Ms. Britton. Going 0-7 doesn’t show a commitment to excellence. And suing flood victims certainly won’t establish a distinguished reputation. Although it may put you in the Hall of Shame with Montgomery County Commissioners who refuse to enforce their own regulations.

Posted by Bob Rehak on 11/12/2019, with thanks to Jeff Miller

805 Days since Hurricane Harvey and 54 since Imelda

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