2019 Legislative Scorecard: Flood Mitigation a Win, Sand Mining a Loss

Looking back at the 2019 Texas Legislature, we have cause for both celebration and soul searching. The good news: A multi-billion-dollar flood-mitigation bill that will do a lot of good for a lot of people. The bad news: death in various committees of any serious legislation to reign in the out-of-control abuses of sand miners. They openly flaunt environmental laws and resist every attempt at reasonable regulation while pretending to be the good guys who fuel growth.

TACA even managed to kill a bill that would have defined best practices for sand mining (HB 909), without even creating any penalties for violation. You can read the entire rundown on the Legislation page of this site. Below is a brief summary of the bills I followed closely.

Flood Mitigation Scorecard

HB 13 would have created a flood infrastructure fund of $3.26 billion taken from the Economic Stabilization (Rainy Day) fund for flood planning, mitigation, and infrastructure projects. This bill had many of the same objectives as SB 7, but also contained some differences. SB 7 survived. HB13 didn’t.

SB7 could help pay for additional flood gates on Lake Houston and speed up the process of designing, permitting, and constructing them.

SB 7 created a dedicated Texas Infrastructure Fund for flood control planning and the funding of flood planning, mitigation, and infrastructure projects. It Passed both houses and is on the Governor’s desk, awaiting his signature. You can read more detail about SB7 and how it will enable and accelerate flood mitigation in this post.

SB500 is an omnibus appropriations bill that includes funding for SB7. It also dedicates $30 million for dredging of the West Fork Mouth Bar in Lake Houston. It passed both Houses and is also on the Governor’s desk, awaiting his signature.

HB 911 would have created a Lake Houston Watershed Commission. Its purpose: to provide the public with streamlined communication and cooperation in flood control planning. It passed the House, but died in the Senate Water and Rural Affairs committee.

Sand Mining Scorecard

People all over the state rose up against the aggregate industry during this legislature, but legislation the industry opposed made it out of committee. Suddenly, TACA’s reason for making large donations to every committee chair in both the House and Senate became clear. There was one small win.

A Small Win

HB 907 Doubled the penalties for not registering a sand mining operation. New penalties can range from $10,000 to $20,000 per year with the total not to exceed $50,000. It passed both Houses and went to the Governor on 5/29. TACA backed this bill because the openly illegal sand mining is bad for their business. It creates low-priced competition.

Bigger Losses

Below is a short list of other sand-mining bills I followed:

HB509 would have allowed the Texas Railroad Commission to regulate APOs with TCEQ. It would have required a hydrologic impact study especially for large clusters of mines in a small area. It also would have required public notice, public hearings, and provided fines up to $10,000 and 1-year in jail for false statements made on permits. It died in committee.

HB 908 would have provided penalties up to $50,000 for water code violations and every-other-year inspections. Died in Committee. No testimony even heard.

HB 909 would have directed the TCEQ to adopt and publish best management practices for sand mines (aggregate production operations).  Testimony was taken on 5/1, but no further action was taken. The bill died in committee.

HB 1671 would have extended water quality protections to the West Fork of the San Jacinto currently enjoyed by the John Graves District on the Brazos as part of a pilot program. It would have attached penalties for non-compliance with best practices defined under HB909. It died in the House Natural Resources Committee.

HB 2871 would required sand mines and other aggregate production operations to acquire a reclamation permit and to file a performance bond ensuring reclamation. Significantly, they would have had to do both of these things before they could have acquired a production permit. It also attached civil and criminal penalties for non-compliance. This bill died in the Energy Resources committee.

SB2123. Companion bill identical to HB907. Died in committee.

SB2124. Companion bill, identical to HB909. Died in committee.

SB2125. Companion bill, identical to HB908. Died in committee.

Sand Mine leaking silt into the West Fork on 2/23/19. Note the difference in color in the river water above the leak and also in Spring Creek, which joins the West Fork from the west (left) near US69. Ten other sand mines on the San Jacinto had breaches the day this satellite photo was taken. A canoeist spotted three breaches in this same mine in one week in December.

Wolf in Sheep’s Clothing?

The most potentially dangerous bill of 2019 was CSSB2126. It was pitched under the guise of creating sand traps in the San Jacinto. The theory: keep sand from migrating downstream where it creates sediment dams, such as the mouth bar. Proponents (including TACA) pitched it as a way to get free dredging.

It would have allowed the SJRA and Harris County Flood Control District to dredge the San Jacinto River to restore conveyance without a permit – if they place the spoils on private land. It died in the House, but was reincarnated as HB1824. That bill passed both houses and is on the Governor’s desk.

I feared that this bill would have opened the door to river mining in the San Jacinto. The reason I feared this? Proponents of the bill said they wanted to create “sand traps.” But no one could agree on what they were or where they would be. Language in the bill was EXTREMELY vague and open ended, a practice that can lead to abuses. It doesn’t even mention sand traps. Meanwhile…

River mining is outlawed in many countries because it is so environmentally destructive.

Environmental groups, such as the Bayou Land Conservancy, tried to add language that would have called for independent studies, before allowing miners in the river.

Time Will Tell: Vigilance Required

A major focus of my efforts since Harvey was to increase setbacks from the river for mines. This bill went in the other direction. It allows miners in the river under the guise of “helping” reduce the sedimentation that they “helped” create.

In reality it also reduces their costs by giving them access to land (the river) without paying leasehold fees or taxes. It also gives developers a way to get free fill that can be dumped in the floodplain without permits. And that could put powerful pressure on politically sensitive, appointed boards, such the SJRA’s.

Only time will tell whether the intentions of the drafters of this legislation were pure, or whether this is yet another sly and crafty grab by TACA. One thing is certain: it will require constant vigilance on the part of residents and environmental groups.

Posted by Bob Rehak on 5/30/2019

639 Days since Hurricane Harvey

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

More than 40 Additional Plaintiffs Join Webster, Spurlock Lawsuits Against Woodridge Developers and Contractor for May 7th Flooding

Jason Webster and Kimberly Spurlock, two local lawyers, have teamed up to represent Elm Grove and North Kingwood Forest (NKF) flood victims. On May 7th, video captured floodwater streaming out of the 268-acre site north and west of those two subdivisions. The contractor had already clearcut most of the land for the developer’s new Woodridge Village. However, the contractor had not yet excavated the key detention pond next to the people who flooded. As a result, it appears that runoff from the mostly clay soils in the new development compounded street flooding already in progress. That’s when the volume of water became more than the streets could handle and hundreds of homes flooded.

Third Wave of Lawsuits Filed Last Week

The third wave of lawsuits filed by Webster and Spurlock against defendants Figure Four Partners, LTD; PSWA, Inc.; and Rebel Contractors, Inc. brings the total of plaintiffs they represent to more than 200.

This is not a class action suit. Each plaintiff suffered different amounts of damage. It is a series of individual lawsuits. Here is the first wave of plaintiffs, the second, the third and the basis for the claims.

The lawsuits allege negligence, negligence per se, gross negligence, nuisance, and violation of Section 11.086 of the Texas Water Code. Plaintiffs seek exemplary damages and a permanent injunction among other things.

Figure Four and LJA Engineering Response

A statement by Figure Four Partners, LTD, claims the flood was an act of God and that many of the detention ponds were already complete. However, LJA Engineering, which had been hired by Figure Four to design drainage for the new development, later said that none of the detention ponds was complete. One one was fully excavated, but not yet completed, they said.

Natural Drainage Filled Near Highest Concentration of Flooded Homes

Only about 1% of the homes in Kingwood flooded on May 7th. Of those, almost all were adjacent to the land that Figure Four and Rebel Contractors clearcut. They also sloped the land toward the flooded homes – without first excavating critical detention ponds needed to prevent flooding.

New development slopes toward Elm Grove on right.

According to numerous residents, the contractor also filled in existing streams and wetlands while grading the property. Partially as a result, homes that never flooded before suddenly flooded during what Harris County meteorologist Jeff Lindner characterized as a 2-year to 50-year rain event. Plans show that if the detention ponds had been constructed, they should have held a 100-year rain.

Next Steps in Lawsuits

District court record searches indicate that no other law firm has yet filed suit against these defendants for the Elm Grove and NKF flooding. However, they may. At least two other law firms have held meetings with residents.

Meanwhile, the court has scheduled oral arguments for the temporary injunction against Figure Four Partners, LTD; PSWA, Inc.; and Rebel Contractors for July 8 at 2:30 PM in the 11th Judicial District Court. This is for the second batch of plaintiffs.

Previous Problems Surface for Rebel Contractors

A search of Harris County District Court records found a separate lawsuit against Rebel Contractors for a different incident. Harris County and the State of Texas (on behalf of the TCEQ) sued the company for its practice of burning trees while clearing land. The plaintiffs claimed the practice added to air pollution and harmed health. The County and State won an injunction against Rebel Contractors. Rebel agreed to stop its burning.

“Rainxiety” Sets In

A new term is floating around: rainxiety. That’s the anxiety flood victims feel whenever rain is forecast. Dozens of residents have told me that they sweat, their hearts race, and they begin to panic whenever it rains. One even begins humming Creedence Clearwater Revival’s “Who’ll Stop the Rain?” That should become the theme song for Elm Grove and North Kingwood Forest.

“Still the rain kept pourin’,
Fallin’ on my ears.
And I wonder, Still I wonder
Who’ll stop the rain.”
By John Fogarty

All 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.

Posted by Bob Rehak on 5/29/2019 with help from Jeff Miller

638 Days since Hurricane Harvey

Partners Outline Goals and Scope of San Jacinto Regional Watershed Master Drainage Plan

Earlier this year, I posted about FEMA funding approval of the San Jacinto River Basin Study. The four partners in the project, Harris County Flood Control, SJRA, Montgomery County and City of Houston, have released a fact sheet that outlines the objectives and scope of their study.

The study will cover 3000 square miles from the upper reaches of the San Jacinto River watershed in Walker, San Jacinto and Grimes Counties in the north to I-10 on the south.

Map of 3000 square-mile study area

Now called the “San Jacinto Regional Watershed Master Drainage Plan,” goals include:

  • Identifying the region’s vulnerabilities to flood hazards using Atlas 14 rainfall totals
  • Developing approaches to enhance public information and flood-level assessment capabilities during a flood
  • Evaluating flood mitigation strategies to improve community resilience
  • Providing a comprehensive Flood Mitigation Plan that supports the needs and objectives of each regional partner.

Download the PDF to learn more. This is not a detailed discussion, just a two-page, high-level overview. To read the entire detailed document that FEMA approved, click here.

Consultants should complete the plan/study by about April of next year. For more information about the project, see the Harris County Flood Control District Web Site.

Flood control also has a useful page dedicated to updating Kingwood residents on the status of projects affecting the Lake Houston area.

Posted by Bob Rehak on 5/29/2019

638 Days since Hurricane Harvey

AP Story Highlights Efforts to Streamline Buyout Process

According to an Associated Press (AP) story published this weekend, “A recent study for the National Institute of Building Sciences found that society as a whole saves $7 in avoided costs for every $1 spent through federally funded grants to acquire or demolish flood-prone buildings.” 

Idea Behind Buyouts

Buyouts are a strategy used by FEMA to avoid multiple payouts from the National Flood Insurance Program for properties that flood over and over again. At some point, it becomes cheaper to buy the home and tear it down than to fix it repeatedly. However, buyouts can take years to process and they are always voluntary. Moreover, even if a homeowner decides not to sell, the government continues to underwrite his/her insurance.

The AP story by David A. Lieb cited the case of Mosby, Mo. Residents there flooded three times in six weeks in 2015. Many quickly signed up for buyouts, but are still waiting for offers years later.

With 7/1 savings, one wonders why it takes government so long to acquire these homes? Buyout experts that I talked to say that one of the keys to successfully negotiating a buyout is making people offers BEFORE they rebuild their homes. That observation argues for the need to streamline the buyout process, not drag it out for years.

Attempt to Streamline Buyouts

The AP story quotes U.S. Rep. Peter DeFazio of Oregon, chairman of the House Transportation and Infrastructure Committee. His committee has jurisdiction over FEMA. He questions why “….[we] keep selling them (flooded homeowners) insurance and building in the same place?”

The article continues: “DeFazio wants to expand and revamp a buyout process that he describes as inefficient and irrational. He’s backing a proposed pilot project that would give homeowners a break on their flood insurance premiums, as long as they agree in advance to a buyout that would turn their property into green space if their homes are substantially damaged by a flood.”

What 240,000 cubic feet of water per second does to a dream home with a river view. Next building is scheduled for demolition on June 3.

Status of Forest Cove Townhome Buyouts on Marina Drive

The buyout process from Harvey is just getting started in some parts of Texas. Harris County Flood Control has already bought out many homes in the Forest Cove area. “We’ve purchased three entire buildings. One has been demolished and two more are in process,” said James Wade of the Flood Control District.  “We have about 65% of the units along Marina Drive purchased and are working through the remaining units.”

But over in Liberty County, officials have just started the buyout process. Buyouts require cooperation between the federal government which funds them, and city or county officials which negotiate them. Therefore, the success of buyout programs often depends on the interest level of cities and counties.

Buyout Success Often Depends on City or County

Counties that aggressively pursue buyout dollars from the federal government can offer residents an option that other counties can’t or don’t.

While most of the Marina Drive townhomes in Forest Cove are structurally unsound and therefore uninhabitable, residents elsewhere, such as Tammy Gunnels in unincorporated Montgomery County, have clamored for buyouts with no luck for years. With the May 7th rains, her home has flooded now 11 times in 10 years.

I applaud Representative DeFazio’s attempt to reform the buyout system. It seems like one of those rare instances when the humane thing to do is also the most cost-effective thing to do.

Turning Problems into Natural Retention and Recreation

A more efficient buyout process will also help rejuvenate and beautify neighborhoods. In the case of Forest Cove, the City of Houston Parks Board and Harris County Precinct Four are already working together to build a greenbelt trail. The trail would connect the County’s new Edgewater Park, under development at Hamblen and US59 with Kingwood’s trail system. That could also open up the entire Spring Creek greenbelt system to Kingwood and Forest Cove hikers and bikers. I can’t wait!

Posted by Bob Rehak on 5/28/19

638 days since Hurricane Harvey

Passage of SB 7 and SB 500 Should Speed Up Flood Mitigation Projects

Six hundred and thirty-seven days after Hurricane Harvey, the Texas Legislature finally passed and funded a massive flood-relief bill, Senate Bill #7 (SB 7), sponsored by State Senator Brandon Creighton. The lengthy delay between Harvey and the bill’s passage underscores the need for Creighton’s bill. 

Need for Faster Mitigation

Few government entities, it seems, budget for emergencies. So when a tragedy like Harvey happens, cities and counties scurry around looking for small grants. They use those to hire consultants to apply for other small grants that provide matching funds for even bigger grants from FEMA. 

There’s even a two-step process to get on the list for grant consideration at the Federal level. You don’t just apply to FEMA or HUD. First, you have to file an application with the TDEM (Texas Division of Emergency Management, a part of DPS) before you can file an application with FEMA.

Most of the begging goes on behind the scenes, out of sight to the average citizen. The fact that the City or County has applied for a grant falls below the threshold of newsworthiness in most cases and so remains invisible to all but insiders. Once someone approves the grants, lengthy permitting processes further delay construction. It take years for a mitigation project to get to the construction phase. That’s when a project becomes newsworthy again.

Changing a Frustrating Process

This is why, to the average citizen, the pace of flood mitigation appears maddeningly and frighteningly slow. Important projects, such as additional dredging, gates for Lake Houston, and upstream detention, seem perpetually mired in government red tape.

The passage of Senate Bill (SB) 7 and SB 500 could help change that. The Senate and House have passed both bills, which are on their way to Governor Abbott’s desk. State Representative Dan Huberty says the governor supports both bills and that his signature is certain.

Here’s what they do:

  • SB 7 sets up several different funds that will make it easier to launch flood mitigation projects.
  • SB 500 appropriates the money for the funds in SB 7.

Provisions in SB 7

SB 7 relates to flood planning, mitigation and infrastructure projects.

  • Article 1 in SB 7 provides money for: flood control planning;  preparation of applications for regulatory approvals; and development of engineering plans/specifications for flood mitigation and drainage projects. 
  • Article 2 establishes a special flood infrastructure fund to make loans (at or below market interest rates) for flood projects. It can also provide grants that provide matching funds to poorer political subdivisions that make them eligible to participate in federal programs.
  • Article 3 amends the state Water Code relating to the Texas Infrastructure Resiliency Fund by establishing special accounts for Floodplain Management, Hurricane Harvey, Federal Matching projects, and Flood Plan Implementation.

Provisions in SB 7 encourage cooperative planning and financing of projects across political boundaries. Those provisions support regional flood mitigation projects through the Flood Infrastructure Fund. That should be especially helpful in the Lake Houston area where mitigation projects affect multiple counties and cities.

SB 500 Provides the Funding

SB 500 is an appropriations bill. It provides funding SB 7 and other items. It appropriates out of the state’s economic stabilization (rainy day) fund:

  • $273 million to provide matching funds for Hazard Mitigations Grants administered by FEMA.
  • $365 million to provide matching funds for Public Assistance Grants administered by FEMA.

Out of those two sums, it also appropriates $30 million that may only be used to provide a grant to Harris County to remove accumulated silt and sediment at the confluence of the San Jacinto River and Lake Houston, i.e., The Mouth Bar! That came from an amendment to SB 7 proposed by State Representative Dan Huberty when the House considered the Senate Bill.

It also provides, among many other things:

  • $47 million for community assistance
  • $793 million for flood infrastructure projects (drainage, flood mitigation and flood control projects)
  • $857 million for the Texas infrastructure resiliency fund
  • $13 million to the Lone Star College system for expenses related to Hurricane Harvey.

Rep. Dan Huberty says that since SB 500 is a supplemental appropriations bill, money from it should be available immediately, as soon as the Governor signs it.

A Big Thank You to Creighton and Huberty

The 85th legislature adjourned less than three months before Harvey inundated South Texas. That delayed legislative action two years. As a result, ever since Harvey, local officials have scrambled to organize and fund flood mitigation projects. The passage of these two bills should speed that process up by providing seed money for planning, grant writing, and matching funds. Thanks go to Senator Brandon Creighton and his staff for responding to the need and pushing these bills through the legislature. Thanks also go to Representative Dan Huberty for earmarking money for mouth bar dredging.

SB 500, a supplemental appropriations bill approved last weekend contains $30 million to help dredge the mouth bar on the West Fork of the San Jacinto.

With West Fork Phase One dredging rapidly winding down, hopefully the addition of $30 million to any money contributed by the City and FEMA will enable dredgers to restore conveyance of the West Fork.

Finally, we should give a big thank you to all of you who wrote letters in support of these two important pieces of legislation.

Posted by Bob Rehak on 5/28/2019

637 days since Hurricane Harvey

More on What Went Wrong Near Elm Grove and How to Help Protect Residents from Future Flooding

Map by LJA Engineering shows natural drainage. Purple outline shows boundaries of Figure Four Partners’ Woodridge Development. Dark gray outline shows extent of drainage area for Taylor Gully. All drainage in A-E flows to F.

According to residents in Elm Grove and North Kingwood Forest, their homes never flooded before May 7th, 2019, including during Hurricane Harvey. Then bulldozers cleared the 262 acres north and west of them to create a new subdivision called Woodridge Village.

Reconstruction of Events

After talking with dozens of residents, mapping flood damage, reviewing flood videos, and photographing the aftermath, I think the following happened on May 7, 2019.

Before May 7th, contractors had finished clearing most of Woodridge Village’s 268 acres, most of which was hard clay. This accelerated runoff. They had also begun grading the land, filling in historical drainage channels and wetlands. But they had not yet totally completed any of the replacement drainage, even though one pond was substantially completed.

A large, long, linear ditch ran along the county line. Approximately half of this ditch (labeled S1 by the developer) bordered Sherwood Trails. Contractors had fully excavated the ditch but not fully finished it. The other half of the ditch that bordered Elm Grove did not yet have:

Red labels and circle have been added to approved drainage plan to make it easier to follow this discussion. Small black arrows indicate direction of flow. The 29-acre triangular area labeled N2 actually belongs to Montgomery County, which started cleared most of the land between 2006 and 2008.

Here’s an enlargement of the crucial S2 detention area that shows the flow. All water from the northern section of Woodridge, drains to the part of Taylor Gully running from the triangular detention area N2 on the left toward the upper right.

Note two u-turns made by the water within the space of 200 feet.

Several things happen when the water reaches the upper right.

  • Most of the runoff is forced to make a 120 degree right turn.
  • It’s joined by more water flowing south along the eastern edge of the property to the north, and the gas pipeline easement north of North Kingwood Forest.
  • All of that flows into a much smaller ditch…
  • …that narrows down into a 3′ pipe…
  • At that point, it is supposed to make another 90-degree turn into…
  • …a grassy-lined channel that conveys the water into S2
  • …where it mixes with stormwater from S1…
  • …and flows through a box culvert…
  • …into Taylor Gully where it’s joined by water shooting out of the 3′ pipe.

Here’s an even closer view of how all that works.

The Big Lebowski Connection

In the movie The Big Lebowski, Walter says to The Dude, “That’s right, Dude, the beauty of this is its simplicity.  Once the plan gets too complex everything can go wrong.” And it did.

Of course, it was complicated by the facts that:

  • Most of S2 had not yet been excavated.
  • The grassy-lined channel to convey water from the upper part of Taylor Gulley into S2 had also not yet been excavated.
  • A reinforced concrete box culvert had been installed to reduce the outflow into the lower part of Taylor Gully. That backed water up.
  • A second reinforced concrete box culvert had not yet been installed farther up the ditch that might have held back some of the water that flowed into Elm Grove.

Critical Corner of Chaos

Jeff Miller, an Elm Grove resident who came within inches of flooding dubbed this corner of the development the “Critical Corner of Chaos.”

Jeff Miller schematic showing series of problems near area that flooded. To his list, I would add the culvert across the ditch by the road that did not yet exist.

Photographs of debris patterns left in grass near the diagonal part of Taylor Gully show that water started overflowing the banks as far west as the road that crosses the ditch. From there, it headed straight south toward Elm Grove.

Debris from flood caught in grass high above ditch indicates that water went out of banks near the proposed street that connects the north and south sections of Woodridge. From here, the water headed overland toward Elm Grove in the background.

Also, when water started to make that 120 degree turn at the top of Miller’s diagram, it overflowed the banks into North Kingwood Forest. Part of the water also split off on the other side of the ditch and headed toward Elm Grove. The constrictions caused by:

  • Flowing from a large ditch into a smaller ditch
  • Flowing from the small ditch into a 3-foot pipe
  • Not enough detention excavated
  • Restricted outflow at the box culvert

…all forced water to flow into surrounding neighborhoods and down streets. Overland sheet flow added to street flooding already present raised the level of the water enough to enter at least 196 homes. The main paths that the water took looked something like this.

The red line shows the location of the buried 3′ pipe. Blue lines indicate the MAIN flow of water. Note, it also spilled out onto other side streets. This map shows the main flow, not the extent of flooding.

Current and Future Concerns

It’s been three weeks since the flooding. As the site continues to take shape, and as we officially enter hurricane season this week, several things should concern residents.

  • Rebel Contractors is far from having all the detention ponds excavated.
  • The dirt they have excavated is being used to elevate Woodridge above Elm Grove.
  • The drainage scheme LJA envisioned at the southeastern corner of the subdivision may not be sufficient in future heavy rains to prevent flooding in neighboring communities.
  • Taylor Gulley in Kingwood may not have sufficient conveyance to handle the volume of water coming from upstream development.

I mention this last point because older subdivisions in Porter along the western edge of Woodridge also flooded. Apparently, Woodridge blocked, at least partially drainage flowing from those areas. Therefore, less water came from that area than normal. Had it been added to the May 7th flood, things in Elm Grove and North Kingwood Forest could have been even worse.

Dirt excavated from S2 Detention Pond is being used to raise elevation of land elsewhere in development. Homes along Needham Road in Porter are in background by cell tower.
Jeff Miller, who helped with this analysis, stands on the original level of the land next to a street that will be about three feet above the elevation of Elm Grove. Miller stands 6′ tall. Note the fire plug at his eye level.

Urgent Recommendations

Before all of Woodridge Village becomes set in concrete, we need the best engineers in town to re-evaluate the LJA plans independently, especially at the “critical corner of chaos.” Then I hope the developer hires additional resources to ensure a verified or improved plan is executed before we hit the peak of hurricane season in August and September.

All thoughts 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.

Posted by Bob Rehak on 5/28/2019 with help from Jeff Miller

637 Days since Hurricane Harvey

New Google Earth Image Shows Multiple West Fork Sand Mines Mixing Their Wastewater with Your Drinking Water

On its way to Lake Houston, your drinking water runs through a gauntlet of sand mines – some old, some new. Many discharge industrial process water directly into the San Jacinto River and its tributaries. The latest Google Earth LandSat images show a total of 11 between I-45 and US 59 on the West Fork doing just that. In addition, photos taken from a boat show another breach in a sand mine dike that happened more recently on Caney Creek, a tributary of the East Fork. Together, these images make a powerful case for moving mines out of the floodway and establishing best management practices for sand mines. The industry has fought both measures.

Dangers of Mining in Floodways

For miners in the Houston area, locating mines in floodways is a dangerous, but lucrative practice. Lucrative because there is less overburden for miners to move. Dangerous because rivers frequently sweep through mines during floods. The floods can then carry sediment downstream, which creates blockages that contribute to flooding.

Floods can also flush chloride-laden process water out of the mines and into your drinking water. That makes City of Houston water treatment costs more expensive. A former high level manager in the City’s water treatment department told me that he saw huge spikes in chlorides after every flood and tracked it to sand mines.

Pictures Aren’t Pretty

Massive breach in Triple-P mine on Caney Creek allows process water to mix with water in tributary for Lake Houston, source of drinking water for two million people.

After discovering the breach above, Josh Alberson whose boat we were in, spent an evening pouring over satellite images. Last week, he sent me a list of GPS coordinates to review additional suspected breaches or discharges. See the images below, all from the West Fork.

First mine north of confluence with Spring Creek. A local canoeist found three breaches in this mine last December.
Breach on right open since 2015. Breach on top left was closed after 2015. Harvey swept through all these mines in 2017.
Note the stream at about two o’clock that is carrying sediment and process water to the river.
Small pit in middle drains into West Fork.
Overflow from mine contaminating West Fork.
This pit has remained open for years at a time. Sometimes the water flows in, other times it flows out.
Follow the stream from the pit on the right to the river on the left.
It looks like someone actually installed two culverts and built a road over this breach.
Note several small breaches in the bottom of this image and how the river is about to invade the major pit in the upper right,
See the line of sediment in the clearcut area between the large green pond and the river. Discharges date back to 2006.
West Fork San Jacinto just east of I-45.

Rule Rather than Exception

I could go on. But you get the idea. The TCEQ has said 15 sand mines are currently active on the West Fork between I-45 and US59. You just looked at a dozen breaches. Historical images in Google Earth show dozens of additional breaches in this same area. This is the rule rather than the exception.

Legislative Session Ends Hope for Improvement

Meanwhile, TACA, the Texas Aggregate and Concrete association, lobbied against establishing and publishing best practices for the industry including setbacks from rivers that could prevent this type of danger.

As we went into this Texas legislative session, I had high hopes. Representative Dan Huberty introduced HB 909, a bill that would have required the TCEQ to adopt and publish a set of best management practices for sand mines.

I drove up to Austin to speak for the bill. Rob Van Til, a sand miner representing TACA, spoke against it. Watch the testimony online at this link for the Committee Broadcast Archives. Make sure you scroll down to 5/1/19 and click on the link for Environmental Regulation. It lasts about 20 minutes. Here’s a guide for those short on time. At:

  • 4:30 Huberty introduces the legislation to the committee.
  • 6:45 Adrian Shelley, representing an environmental group, speaks for the bill.
  • 8:45 Rob Van Til, representing TACA speaks against.
  • 10:45 Representative Erin Zwiener questions Van Til
  • 16.25 Bob Rehak speaks for HB 909
  • 20:00 Huberty asks for committee support

The images above show why we need to move mines out of the floodway. But sadly, HB 909 never made it out of committee. The 86th Legislature ends this week. It’s time to start gearing up for 2021.

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

Posted by Bob Rehak on May 27, 2019 with help from Josh Alberson

636 Days after Hurricane Harvey

Key Woodridge Detention Pond Missing, Only Small Percent of Total Detention Developed Before Elm Grove Flooded

On the plans, LJA Engineers calls it S2 – the second detention pond in the southern portion of the new Woodridge development north of Elm Grove. Even though all drainage on the 268 clearcut acres slopes toward S2, the developer did not start building this crucial pond before the May 7 storm that flooded Elm Grove and North Kingwood Forest. The pond will ultimately hold 49.4 acre feet of water during a storm, but holds something less now because Rebel Contractors has not yet fully excavated it. Further, it appears that less than 10% of the site’s required detention was fully excavated when May storms struck.

Rebel Contractors Starts Expanding S2 After Flood

At the time of the May 7 flood, it appears that Rebel Contractors had not yet begun excavating the largest part of S2. I could see only a ditch connecting S1 with the large box culvert at the entry to Taylor Gully.

Photo taken on May 11, four days after Elm Grove Flood, shows extent of excavation for crucial S2 detention pond. Only this ditch connected S1 pond with Taylor Gully. Photo looks northeast, where giant pond should extend almost to tree line on both sides of image.

In the last seven days, however, Rebel has roughed out the pond. You can see it starting to assume its final shape, though it has not yet reached its final size or depth. See pictures below.

On Friday, May 24, I observed a steady parade of haulers moving earth from the future detention pond, S2. The contractor is using the excavated material to raise the height of streets and home pads elsewhere on the property in a process called “cut and fill.”

According to numerous residents that I have talked to, much of this area once consisted of wetlands. To develop such property, contractors use a process called “cut and fill.” They build up one area, by excavating another.

S2 pond in early stages of development. Plans show this should ultimately cover more than three acres and be 15 feet deep. Photo taken 5/25/19 looking west from Taylor Gully toward Woodland Hills Drive.
Plans for Woodridge Village show five detention ponds. Before the May 7 storm, it appears that only S1 was in place though even it was not finished. This raises the question, “Why did the developer focus on clearcutting the northern section before finishing crucial detention ponds on the southern section, where all the water from the north would flow?”

Only S1 Pond Fully Excavated at Time of Storm

Houston City Council Member Dave Martin investigating job site shortly after the May 7 flood on May 9. Shown here: The area that will become detention pond S1. It appeared to be the only semi-functioning detention pond on the entire 268 acres. This photo shows it almost fully excavated but not fully finished. Contractor will eventually slope right side to create more detention capacity and vegetate both sides to reduce erosion.

91% of Detention Capacity Not Completed at Time of Storm

Ultimately, the 268 acre site should hold five detention ponds with a total of 292.3 acre feet of storage. An acre foot would cover one acre to a depth of one foot. The bullet points below summarize the total storage of each pond in the map above.

  • N1 = 16.9 acre feet (not started)
  • N2 = 143.3 acre feet (started, but does not appear complete)
  • N3 = 56.4 acre feet (does not appear to be started)
  • S1 = 26.3 acre feet (mostly functioning, but not finished)
  • S2 = 49.4 acre feet (not exacted at time of May 7 storm)
  • Total = 292.3 acre feet
  • Not Started or Incomplete on May 7 = 91%
People in construction often use the term “substantially complete” to mean functional, but not fully finished.

The developer, Figure Four Partners, LTD, a subsidiary of Perry Homes and PSWA, Inc., issued a statement after the flood claiming that: “… many of the detention ponds are COMPLETE.” (Emphasis added.) Many appears to be 1 out of 5. And not even that one appeared complete. Complete, as their own engineer LJA pointed out, would have entailed sloping the sides and planting vegetation. See photo above; not even S1 was fully complete at the time of the flood.

The Figure Four Partners statement also claimed they had “improved drainage to the area that did not previously exist.” Residents say their contractor filled in existing streams on the property. Yet residents that did NOT flood during Harvey DID FLOOD after the so-called “improvements.”

How Detention Ponds Work

Detention ponds collect runoff during a heavy rain. Then they release it at a slow, controlled rate that drainage ditches like Taylor Gully can handle without flooding people downstream. That’s the theory anyway. They do this by restricting the outflow compared to inflow. However, to function, they have to be BUILT.

How Much Rain Detention Ponds Should Have Held vs How Much Fell

Had all five ponds been complete on May 7, the entire site should have detained 1.1 feet of rain, a little more than 13 inches. However, we received less than 8 inches.

Jeff Lindner, the Harris County meteorologist, issued a statement on May 13 summarizing the storm that flooded Elm Grove and North Kingwood Forest. In it, he said, “A 30-min rate of 2.9 inches was recorded at US 59 and the West Fork of the San Jacinto River and a 1 hour rate of 4.0 inches. A 6-hr rainfall rate of 7.9 inches was recorded at the East Fork of the San Jacinto River and FM 1485. Rainfall rates between the 15-min and 6-hr time periods on Tuesday afternoon and evening averaged between a 2-yr and 50-yr frequency over the extreme northeast portions of Harris into southeast Montgomery Counties.”

Questions Owners and Contractors Need to Answer

In the last four years, we received three so-called 500-year storms. Two happened in the spring.

  • Knowing that, why did Rebel Contractors wait six months after clearing to begin excavating S2, the detention pond adjacent to areas that flooded?
  • Why did Rebel grade the rest of the site to funnel water toward Elm Grove before detention was in place?
  • Did economics factors push Rebel Contractors to clearcut the entire site before constructing detention that could control the runoff?
  • Why did Rebel Contractors fill in existing drainage features that could have helped reduce flooding before starting work on S2?
  • Why did Figure Four Partners claim that many of the detention ponds were complete?
  • If Figure Four improved drainage, why did homes flood that never flooded before?
  • Silt fences were supposed to be put up before any land was cleared. However, they were not put up until AFTER the flood on May 7. Why?
  • The plans required an onsite engineer to ensure compliance with permit provisions. Who was that engineer? How could he/she have possibly missed glaring deficiencies?
  • Stormwater Pollution Prevention Permits were supposed to be posted at all job site entrances. They were not. Why? And why did the contractor put them up the day before LJA Engineers inspected the site for Montgomery County and the TCEQ?

I hope I live long enough to learn the answers! I hope officials care enough to look for the answers! Tens of thousands of Kingwood homes did NOT flood during the May 7th storm; 196 homes next to this development did. They deserve answers.

All thoughts in this post are 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.

Posted by Bob Rehak on 5/26/2019

635 Days after Hurricane Harvey

Buzbee Video Puts Mouth Bar, Sand Mining at Center Stage In Mayoral Election

Tony Buzbee and Bill King both understand the importance of Kingwood in the upcoming Mayoral election. In the 2015 runoff, Sylvester Turner won by 4,000 votes city wide. But more than 28,000 registered voters in Kingwood didn’t vote, largely because of a major storm on Election Day. Storms may again shape this election, but in a different way.

Slow Pace of Mitigation Creates Opening

Since Hurricane Harvey, identifying the causes of flooding in the Kingwood area and mitigating them have dominated public discourse. Now both candidates running against incumbent Mayor Sylvester Turner are courting Kingwood residents. We could be the swing vote in the next election. And the slow pace of mitigation since Harvey could give them the opening they seek. Especially after recent flooding in Elm Grove reignited waves of anxiety.

King has met with many area residents on numerous occasions for the last year. He has slogged through swamps and sand dunes with me on more than one occasion, trying to see first hand how the San Jacinto became clogged with sediment, in part, due to sand mines in the floodway.

Buzbee joined the race later, but didn’t waste time wading into the issues. He asked local activists to arrange a trip to the mouth bar and a sand mine for him. When we got to the mouth bar, the former marine captain literally sprang out of the boat and waded ashore like he was taking a beach at Normandy.

Buzbee Sees Firsthand the Breach of Sand Mine Dike

Upriver, at the sand mine, we saw a tangible example of a theoretical discussion I had been having with him for several months – a sand mine discharging silt and wastewater into the river. We discovered, by accident, a massive breach in the dike of the Triple-P mine in Porter.

As we turned a bend on Caney Creek, suddenly we realized we were no longer on the creek. We were in a channel that connected the creek to the Triple-P Mine in Porter.

About 50 to 100 feet of the dike had vanished. From the way trees laid down, it looked as though the wall of the mine had been blown outward by floodwaters.


Breach in dike. The tree laying down in the background at about a 10 degree angle is on Caney Creek which flows left to right in this shot.

Danger of Floodway Mining Comes to Life

Suddenly, all the tumblers clicked into place. Buzbee said, “So that’s what you’ve been talking about!” The danger of building mines in the floodway became apparent. It was what they call in science “The Aha Moment!” I could see him connecting thoughts that were previously unconnected, such as sand mine and mouth bar. He got it.

Luckily for Kingwood residents, a video crew was present when he got it. Here, on video, is Buzbee’s voyage of discovery.

Click here to see 2 minute and 50 second video.

An Open Offer to All Candidates

While I have tried to keep flood discussions apolitical, inevitably the solutions are political. Hence, I am wading into some uncharted waters. I told Buzbee and King the same thing I will tell any candidate for any office. I will help you understand the causes of flooding in this area and what we need to mitigate them. My hope is that by making this part of the political debate, the candidates will focus awareness on the problems that leads to solutions.

I also make this promise to all candidates – incumbents and challengers alike. People deserve to hear what you have to say about flooding. Send me your thoughts or videos and I will publish them.

Posted by Bob Rehak on 5/24/2019 with special thanks to Josh Alberson and his boat

633 Days since Hurricane Harvey

Contractor Not Executing All Requirements in Approved Woodridge Plans

A review of construction plans for detention ponds and other site work in the troubled Woodridge Village subdivision revealed several deficiencies in the contractor’s performance to date. These deficiencies contributed to the widespread flooding on May 7 in Elm Grove and North Kingwood Forest. They have also affected life in those and other neighboring communities for months.

The plans submitted by LJA Engineers for Job #2027-1100L are dated July, 2018. Both the City of Houston and Montgomery County approved them. The plans specify responsibilities for Rebel Contractors.

Deficiencies include, but are not limited to, inadequate detention, poor drainage, missing silt fencing, not displaying permits, failure to repair damage to streets, and lack of supervision.

Missing Silt Fencing

Let’s start with a pretty standard one: silt fencing. Their purpose is to control runoff that carries silt into streets and sewers. The objective: avoid clogged storm drains that can exacerbate flooding and require expensive remediation.

The law requires contractors to erect silt fencing BEFORE they even clear the land. The contractor completed clearcutting the land adjacent to Elm Grove last November. But when I visited the job site on May 9 of this year – six months later – I could see no silt fencing…anywhere.

Image taken on 5/9/19 at north end of Village Springs Drive in Elm Grove. Note lack of silt fencing and presence of clay and silt in street.

On May 16, one day after the LJA site inspection, I took this picture.

Silt fence installed AFTER flood.

Page 6, Point #5 says, “Contractor must inspect all structural controls at a minimum once every seven days and within 24 hours after a storm event that meets or exceeds .5 inches per 24 hour period.” Structural controls would include the silt fencing that wasn’t installed for 6 months.

Does it really make a difference? Look at the water quality in these two pictures taken by Jeff Miller in front of his home in Elm Grove.

Water in street in front of Jeff Miller’s house in Elm Grove during Harvey, BEFORE Rebel Contractors clearcut the area to the north.
Water in same street on May 7 after clearcutting adjacent area. No silt fences were installed.

Says Miller, the homeowner who took the pictures above, “Certainly in addition to suspended solids, there were also dissolved chemicals and biological materials (eg., diatoms) swept into Taylor Gully and our drinking water.” Miller is a retired project manager for a large pharmaceutical company and knows about the importance of avoiding contamination.

Missing or Inadequate Supervision

Several pages in the plans, including the cover page, specify that a professional engineer must monitor construction to ensure compliance with construction plans and specifications. If that person was doing his/her job, how could he/she possibly miss the lack of silt fencing…which is also specified on numerous pages? You should have to climb over it to get into the site!

Inadequate Drainage

Page 2, Column 1, Point #3 states, “Contractor shall be responsible for damages to existing water, wastewater, and storm drainage lines.” According to residents and maps available on the Montgomery County Appraisal District web site, the contractor filled in existing drainage before Elm Grove flooded; it never had before.

Also on Page 2, Column 1, Point #5 states, “Adequate drainage shall be maintained at all times during construction and any drainage ditch or structure disturbed during construction shall be restored to existing conditions or better.” Again, the contractor filled in existing drainage, did not restore it, and Elm Grove flooded. The contractor also worked on the site for six months without installing the main detention pond in the area to where all water was draining. After the flood, it took them only a day or so to excavate most of the pond. Why wait so long?

Here’s where it should have gone.

Detention pond in red circle just above flooded homes was not in place before flood. Yet all the drainage for 268 acres exited the site through here. See photos below.
Image taken on 5/12/19, five days after storm by Bob Rehak shows detention pond S2 has not yet been excavated.
Four days later, photo by Jeff Miller on 5/16/19 shows S2 pond being excavated. Pond still has not reached required depth of 15 feet. Representative of LJA Engineers did not recall seeing the excavation during their site inspection on May 15.

Street Damage

Page 2, Column 1, Point #8 states, “Any damage to any of the existing pavement and/or utilities must be repaired immediately. The contractor must notify the appropriate utility owner who will make the repairs at the contractor’s expense.” People in Porter have been complaining for months about how heavy construction traffic has crumbled their asphalt streets.

Heavy truck about to turn left into Webb Street construction entrance. Photo by Bob Rehak.
Damage to Web Street from construction traffic. Pile of dirt was dumped there by contractor. Photo by Bob Rehak.

Keeping Pipe Free of Dirt

Page 2, Column 1, Point #15 states, “All pipe and reinforcement steel shall be kept free of dirt and other debris. Any damage to the coating of the various materials must be repaired.” See image below. Nuff said.

Taken from Woodland Hills Drive on May 8, 2019

Maintaining Adequate and Positive Drainage at All Times

Page 2, Column 1, Point #16 says, “Contractor shall be responsible for maintaining adequate and positive drainage at all times during construction of proposed facilities.” If the adequate part was true, Edy Cogdill could not have shot this video of water pouring out of the construction site and flooding Village Springs Drive.

It is also unlikely that the high water rescue vehicle below would have been necessary on May 7.

Houston Fire Department High Water Rescue Truck during May 7 flood in Elm Grove.

No Traffic Controls

Page 2, Column 4, Point #1 under Traffic Notes states, “Contractor shall provide and install traffic control devices in conformance with Part VI of the Texas Manual of Uniform Traffic Control Devices.” No traffic control devices are installed anywhere around the site as of this writing, yet construction machinery barges right out into traffic, as this equipment did in front of me. With one way in and out of this neighborhood, residents complain that they have had to wait up to half an hour while large equipment gets stuck in ditches.

Residents complain that equipment frequently blocks traffic. I witnessed this personally.

Page 6, Point #10 says, “Contractor is responsible for cleaning mud and or dirt tracked onto existing streets, by his workman’s, contractor’s or suppliers’ vehicles. Street must be cleared within 24 hours of when the tracking occurs.” Above, I caught the contractor dumping dirt on the street, in a feeble attempt to shore up the shoulder to widen the turning radius. The contractor succeeded only in further destroying the street. He should have widened his own driveway instead.

Complying with Environmental Laws

Page 6, Point #3 states, “Contractor will be responsible for complying with all environmental laws.” One such law stipulates that the contractor isn’t supposed to let silty water leave the site; hence the discussion of silt fences above. Another states that they must post their Stormwater Pollution Prevention Permits at site entrances. I looked high and low for those without success for the week after the flood. Then suddenly on May 16, I saw this posted.

Photographed on May 16, 2019, this should have been posted from the start of construction.

Such notices enable residents to file complaints when they notice violations. Not posting the notice makes it difficult to know where to complain or about whom to complain. If you have seen other suspicious activities you wish to report, here’s all about Stormwater Pollution Prevention Plans. They’re supposed to be monitored by the TCEQ.

But in this case, the TCEQ turfed the investigation to LJA Engineering, which was paid by both the developer (to plan the site) and Montgomery County (to inspect permit compliance).

I could go on and on. (Actually, I’m just getting warmed up.) There are 26 pages of plans relating to the detention and drainage. Download them for yourself and let me know what else you find.

Posted by Bob Rehak on 5/23/2019 with help from Jeff Miller, Gretchen Dunlap-Smith and Abel Vera

632 Days after Hurricane Harvey