Ted Cruz Throws His Weight Behind Mouth-Bar Campaign with Letter to FEMA

The mouth bar. Sand, in part from the mines, has almost totally blocked the West Fork where it meets Lake Houston. Before/after measurements show that as much as ten feet was deposited in this area during Harvey (five below water/five above).

Ted Cruz has written a letter to FEMA asking for the agency’s help in removing the giant sand bar at the mouth of the San Jacinto River.  In the letter, he calls the mouth bar a danger to property and lives.

Here is the text of his press release:

Sen. Cruz Pens Letter to FEMA Administrator Urging Additional Action on San Jacinto River

‘IN ORDER TO PREVENT FUTURE FLOODING OF PROPERTY AND SAVE LIVES, I URGE YOU TO AMEND THE PROJECT WORKSHEET TO INCLUDE THE WEST FORK MOUTH BAR IN THE SCOPE OF THE PROJECT’
December 3, 2018

WASHINGTON, D.C. – U.S. Sen. Ted Cruz (R-Texas) last week penned a letter to FEMA Administrator Brock Long urging him to amend the scope of the existing FEMA dredging project on the San Jacinto River near Kingwood to include the mouth bar located on the West Fork of the river. Over 1,600 homes flooded in the area during Hurricane Harvey. The mouth bar, which is the biggest blockage in the river that feeds into Lake Houston, was made significantly worse by Harvey.

“In order to prevent future flooding of property and save lives, I urge you to amend the project worksheet to include the West Fork mouth bar in the scope of the project,” Sen. Cruz wrote. “Without such an amendment, surrounding residents are at risk of future flooding and FEMA is missing a key opportunity to leverage its current assets, help the state better prepare for future disasters, and reduce the federal cost of future disasters.”

Read the full letter here and below:

November 28, 2018

The Honorable William B. Long
Federal Emergency Management Agency
500 C Street, South West
Washington, D.C. 20472

Dear Administrator Long:

Over the last year, with the assistance of the Federal Emergency Management Agency (FEMA), Texas has made enormous strides in recovering and rebuilding from the devastation of Hurricane Harvey (DR-4332). As the recovery process continues, it is important to ensure that FEMA fully leverages its assets and funding to reduce the taxpayer cost of future disasters and help the state better prepare for future weather events.

One project in particular where this can be accomplished is the emergency dredging of the West Fork of the San Jacinto River—an area where Hurricane Harvey flooded 1,621 homes. The San Jacinto River Dredging Project (W9126G18B0019) is a DR-4332 FEMA Mission Assignment that directs the United States Army Corps of Engineers (Army Corps) to return the river to pre-event conditions. Specifically, this is a debris removal assignment, which includes sediment, with an estimated cost of $61 million.

Although the Army Corps recently began dredging operations on the West Fork of the river, the scope of the project does not include the delta or “mouth bar” that formed in the river and was made significantly worse by Hurricane Harvey. In order to prevent future flooding of property and threat to human life, FEMA should amend the project worksheet so that the scope of the project includes dredging the West Fork mouth bar and surrounding shoal sediments.

Under Section 403 of the Stafford Act, “Federal agencies may . . . provide assistance to meeting immediate threats to life and property resulting from a major disaster,” which includes such activities as debris removal.

The mouth bar on the West Fork is currently constraining in-bank flow conveyance capacity, and local officials have referred to it as “the largest blockage on the river.” The Army Corps confirmed this analysis in a May 2018 Army Corps Value Engineering Study which indicated that “[t]he water [in the river] then slows as it reaches the upper end of Lake Houston dumping its suspended sediments into a delta. The accretion of this delta creates a dam like feature which then increasingly slows water and accretes the delta, compounding the problem.”

The sediment deposited into the river from Hurricane Harvey exacerbated the accretion of the mouth bar. If the West Fork mouth bar is not addressed to restore flow conveyance capacity, then the next rain event will likely result in both public and private property damage from flood waters rising out of the river’s banks. Even a small rain event in March created more flooding than expected as a result of the sediment constraints from Hurricane Harvey.

In order to prevent future flooding of property and save lives, I urge you to amend the project worksheet to include the West Fork mouth bar in the scope of the project. Without such an amendment, surrounding residents are at risk of future flooding and FEMA is missing a key opportunity to leverage its current assets, help the state better prepare for future disasters, and reduce the federal cost of future disasters.

Thank you for your efforts on behalf of the people of Texas and for your prompt consideration of my request.

Sincerely,

–––––

This is great news for Humble and Kingwood residents. It comes hot on the heels of a similar letter written earlier by Congressman Ted Poe to the head of the U.S. Army Corps of Engineers.

Perhaps now we will get some action. Let’s pray for a Christmas  miracle.

Kudos to Houston City Council member Dave Martin for setting up a meeting between area residents and Senator Cruz’ staff at which residents helped explain the issues.

Posted on December 4, 2018 by Bob Rehak

462 Days since Hurricane Harvey

Texas Water Conservation Association Issues Report on Pros and Cons of Flood Mitigation Strategies

The Great Lakes Dredge finally liberated the ditch that drains the western third of Kingwood 462 days after Harvey.

A new report by the Texas Water Conservation Association reviews the relative merits and problems with various flood mitigation strategies. The strategies include pre-release from reservoirs; on- and off-channel reservoirs; aquifer storage and recovery; and dredging. Anyone who wants to understand how professionals evaluate the merits of different strategies should read this concise, clearly written, 25-page report called Flooding in Texas: Preparation and Response.

About the Authors

The Texas Water Conservation Association is an association of water professionals and organizations in the state of Texas. Its members represent river authorities, municipalities, navigation and flood control districts, drainage and irrigation districts, utility districts, municipalities, groundwater conservation districts, all kinds of water users, and general/environmental water interests. Membership includes engineers, hydrogeologists, attorneys, government administrators, and numerous other individuals committed to Texas water resource management. Don’t be scared by the author’s titles.

Bias Toward Conservation over Mitigation

The only warning I have: the authors have an inherent bias toward water conservation as opposed to flood mitigation, as their name would imply. That said, it’s important for people who flooded to understand that flood control is not the main responsibility of people who operate dams. Water conservation is.

Three Types of Reservoirs

The report starts with a discussion of the three main types of reservoirs: water-supply, flood-control, and dual-purpose reservoirs. Lake Conroe and Lake Houston are both water-supply reservoirs. Texas has 150 such reservoirs, by far the most common type.

That section ends with this admonishment: “In water supply reservoirs, there is often very little storage available between maximum design impoundment and the top of the gates. This distance is sometimes referred to as freeboard and should not be considered extra storage, as it is unsafe to operate in that manner. A reservoir that attempts to indefinitely impound stormwater without an emergency spillway will eventually overtop at the lowest elevation across the dam, usually the top of the control gates. This kind of operation is dangerous as it jeopardizes the integrity of the dam, potentially resulting in a dam failure. For this reason, reservoir operators follow specific flood operation protocols to ensure that the dam is not breached.”

Four Main Mitigation Strategies Examined

A discussion of four main flood mitigation strategies follows.

Many people in the Houston area question why Lake Conroe did not release earlier during Harvey. Factors that influence whether prerelease may be of help or hurt include: 

  • Predicted location and amount of rainfall in relation to a reservoir; 
  • River-basin size and lag time; 
  • Existing downstream flow;
  • Predicted weather conditions below a reservoir. 

Direction of Approaching Storm is Crucial in Pre-Release

During Harvey, a factor that weighed heavily in the decision-making at the Lake Conroe Dam was the direction of the approaching storm. Because it approached from the Gulf, operators worried that pre-leasing water would overload downstream communities which already struggled with the local rainfall.

On the other hand, both the Memorial and Tax Day floods approached from the West or North. In those cases, pre-release was safer.

This section concludes with the observation that, “Harvey dumped approximately … 75 million acre feet of water. Texas’ statewide water conservation storage is approximately 31.5 million acre feet. … No amount of prerelease, and no amount of temporary or permanent conversion of water supply storage, would have appreciably reduced the magnitude of flooding caused by Hurricane Harvey.” And later, “Prerelease is a strategy with inherent risk, because the decision making regarding its use is based on imperfect predictions.”

On-Channel Reservoirs: A Proven Approach

Next, the report considers On-Channel reservoirs, such as Barker and Addicks. “On-channel reservoirs,” they say, “are an important component of the flood mitigation discussion, and have demonstrated effectiveness in multiple areas of the state. As an added benefit, on-channel reservoirs also provide an opportunity to double as a major water supply source, as many of the state’s dual-purpose reservoirs have done for decades.” Harris County Flood Control budgeted for these in its $2.5 million flood bond.

Off Channel Reservoirs Have Severe Limits

Off-Channel Reservoirs represent a less attractive alternative. Sand miners fondly point to the extra storage capacity in their pits for flood mitigation. However, the report points out that pumps can’t work fast enough to create meaningful reductions in flood levels. Other problems: very limited capacity, pumping costs, and debris floating in the water that could clog pumps.

Pros and Cons of Aquifer Storage and Recovery (ASR)

Many people have discussed the possibility of aquifer storage and recovery. It has proved to be a viable strategy for water supply. Managers pump excess water underground for storage in aquifers until needed for future use.

“Initial feasibility and pilot-testing studies are important,” say the authors, “as ASR requires the right physical conditions (e.g. geology, ground slope, groundwater quality) to be feasible. It also must be economically competitive with other viable options.”

“For ASR to have any meaningful impact in an extreme flooding event, extensive off-channel storage would be required, because the rate at which water could be injected underground is so slow in comparison to the rate of flood flows. As such, the off-channel storage is actually the mechanism for mitigating the flood in this case, not the ASR system.” 

“As a flood control strategy, however, ASR cannot provide a first line of defense during an extreme storm event due to its need for extensive storage and treatment and its inability to compete economically with other solutions.”

Also, water treatment would be needed before pumping it into the ground because water quality in large flood events is extremely degraded. 

When Dredging Helps

The report discusses many purposes for dredging and extensively references the Army Corps’ emergency project on the San Jacinto. It discusses dredging in rivers, streams, lakes, and ditches; for maintenance, navigation, and to remove blockages (like those we have); from cost, environmental, technical, and disposal points of view. Authors lament the expense of dredging but acknowledge its usefulness in certain cases.

Need for Single Source of Emergency Communication

 Before closing, the reports also addresses the need for a consistent, focused communication protocol to warn people when flood gates will open. This section also discusses the regulatory environment that dam operators live within. In other words, the restraints that they face.

It concludes by saying that, “During a flood event, it is important that evacuation orders and flood warnings come from a single, designated source to avoid confusion and ensure accurate information for the public. In Texas, the leading notification providers are local Emergency Operations Centers (EOCs) and the National Weather Service (NWS). Reservoir conditions are one piece of the flooding puzzle and operators must provide real-time information to EOCs and the NWS so those entities can weigh all contributing factors to provide the best possible flooding information to the public.”

Look at Flooding from Professional’s Perspective

If you want to understand the world from a water-professional’s point of view, read this thought-provoking report. I didn’t agree with everything in it, but usually when I didn’t, it was because they were referencing another location, not ours. The author’s freely acknowledge that every watershed is unique and must be evaluated from its own perspective.

Posted on December 3, 2018 by Bob Rehak

462 Days since Hurricane Harvey

 

River Grove Boat Ramp May Open Next Week

Some unexpected good news! The River Grove boat ramp could soon open…as early as next week. The Great Lakes Dredge is starting to chew its way through the massive side bar that has had Kingwood’s only boat dock shut down for 16 months.

The original speculation was that the Army Corps would leave River Grove alone until the rest of the job was complete. Corps officials told me that they worried about the safety of recreational boaters around the massive dredging equipment and pipelines.

Something must have changed because at 8 a.m. this morning, Bruce Casto snapped this shot on his cell phone. Bruce heard second hand from another person in the park that someone on the dredge yelled across the water that,  “The boat dock will be open in a week.”

I try not to repeat rumors but I’ve known Bruce for a long time and trust him. And given the location of the dredge in this photo, there is a better than 50/50 chance that River Grove will soon open. I have not verified that yet with the Army Corps of Engineers because of the timing of this surprise (on the weekend).

Posted on 12/3/18 by Bob Rehak

461 Days since Hurricane Harvey

 

Growing Threat of Urban Flooding Labeled National Challenge by New Study

Researchers at Texas A&M Galveston and the University of Maryland have just published a massive new study on The Growing Threat of Urban Flooding: A National Challenge. The study – a treasure trove of insights – actually started in 2016, before Harvey.

It focuses primarily on urban flooding as opposed to riverine flooding, which caused many of the Lake Houston Area’s problems. However, area residents should not dismiss it. The two types overlap and the report largely addresses issues that exacerbate both, such as inadequate governmental systems, engineered structures and growth that overwhelms both.

The report contains eight major sections that quantify the scope of the challenge. Below, a few highlights from each.

I. Urban Floods: The Nation’s Hidden Challenge

Documents the stunning extent of urban flooding and factors that continue to make it worse. Did you know for instance, that two thirds of the nation’s population living in floodplains live in just two states: Texas and New York? Or that Texas led the nation in billion-dollar water and wind disasters between 1980 and 2018?

II. Analyzing Urban Flooding

Reveals statistics on the scope of the problem. Two gems:

Nationally, 83% of respondents indicated they had experienced urban flooding in their communities. And 85% experienced urban flooding outside special flood hazard areas!

III. Where Urban Flooding Occurs

Shows that Texas ranks in the middle of the pack in terms of frequency of events, as opposed to major events. The researchers found that nationwide, approximately 25% of all flood insurance claims are submitted by policy holders whose property lies outside the 100-year flood plain. New York found that “The problem in most communities is lack of enforcement. Communities need a comprehensive plan to address development, infrastructure needs, stormwater runoff, and building codes. When a community doesn’t address these issues it only exacerbates other problems and continued urban sprawl eats up rural areas causing flooding, erosion, and infrastructure malfunction.”

IV. Why Does Urban Flooding Happen?

Examines aging and inadequate drainage systems, increases in local and regional runoff, sewage and stormwater backups, changes in local physical conditions, and failure to maintain drainage systems. Sound familiar? If you’re worried about where your drainage fee goes, be thankful that you don’t live in Detroit. That city reports that 75% of the drains citywide are covered by debris or have a blockage.

V: Consequences of Urban Flooding

Talks about the economic and social costs of urban flooding. Did you know, for instance, that almost 40% of small business never reopen their doors following a flooding disaster? And that 90% of businesses fail within two years of being struck by a disaster? However, because no single federal agency collects and evaluates flood loss information, all national flood loss estimates are considered “approximations.” Therefore, the report says, they are of marginal use in conducting accurate economic analyses to support urban flood risk reduction mitigation.

Social costs hit moderate income, the old, and those facing social challenges the hardest. “For those lacking critical resources (savings, insurance, etc.), the flood losses gnaw away at their well-being.”

In regard to Houston, the study found that, “The urban flooding that occurs in the heart of the central city is mainly attributed to existing drainage infrastructure that predates today’s design standards or insufficient pipe sizes for the now fully developed urban areas.”

VI: What Can Be Done About Urban Flooding?

Examines different strategies to mitigate flooding:

  • Planning
  • Capturing rain where it falls
  • Eliminating or reducing risk
  • Adequate maintenance
  • Upgrading capacity standards
  • Risk communication (gaining better public understanding)
  • Better mapping
  • Disclosing risks in user-friendly ways
  • Insuring at-risk properties.

Some key insights:

  • Lack of funding and lack of political will are the most significant issues.
  • Much of the available funding requires a cost share and significant participation in the NFIP program. Most properties outside the mapped floodplain do not carry flood insurance. This then requires localities to fund these initiatives by themselves.
  • New development outside the floodplain generally has limited stormwater control requirements. Local CEOs are often reluctant to require stormwater controls as they fear this would dissuade development.

VII. Major Challenges

Includes discussions of lack of resources, population/urban growth, climate change, priority setting and fragmented governance.

If you want to understand why flood mitigation  and what needs to be done to fix it, read this report.

VIII. Moving Ahead: Challenges and Recommendations

The study outlines ten challenges and makes 9 recommendations. Most target government leaders and policy makers. They are much too detailed to summarize here without tripling the length of the post. But if you want to know what you should push your representatives to consider, you must read section.

Number 8 read: “Governments, at all levels, have not provided effective means to communicate risks to those in urban flood- prone areas. A significant number of these areas are not identified by maps produced under the Federal Emergency Management Agency National Flood Insurance Programs, and actions by those responsible for urban flood mitigation are needed to delineate these areas. Communication of flood risk is often seen by public officials and developers as a negative.”

In my opinion, it’s a positive. A better understanding of risk could help everyone make better decisions that prevent heartbreaking losses, such as those we saw with Harvey.

All in all, this is a must read for anyone who wants to understand urban flooding and why it is so difficult to address.

Acknowledgements:

For University of Maryland

  • Dr. Gerald E Galloway
  • Dr. Allison Reilly
  • Sung Ryoo
  • Anjanette Riley
  • Maggie Haslam

For Texas A&M University

  • Dr. Sam Brody
  • Dr. Wesley Highfield
  • Dr. Joshua Gunn
  • Jayton Rainey
  • Sherry Parker
Posted by Bob Rehak on 12/2/2018 with thanks to Jacque Havelka 
460 Days since Hurricane Harvey

Photo Essay on Role of Riparian Vegetation in Reducing Erosion

Riparian means “of or relating to the banks of a river.” To see the role of riparian vegetation in reducing erosion, one need only compare the two forks of the San Jacinto River. They provide a stark contrast. But the real story is the role of sand mining in reducing riparian vegetation.

After years of sand mining on the West Fork, much of the shoreline vegetation has been lost and the resulting erosion is staggering. Between I-45 and US59, sand miners have stripped vegetation from approximately 20 square miles of floodplain and floodway (the main channel of a river during a flood).

Sand Mines on West Fork of the San Jacinto form an almost continuous line from I-45 to US59. They have stripped approximately 20 square miles of ground cover.

On the East Fork above the Caney Creek confluence, however, there are no sand mines. The vegetation is lush and the erosion is negligible. Let’s start there for a look at how nature protects us.

Forests come down to the river’s edge. Grasses and cattails abound, protecting the banks.

Dense forest anchors the land. Grasses, forced to compete for sunlight, thrive along the river’s edge, protecting banks.

A perfect time and place for reflection. A nice place just to “be.”

All images so far were taken on the East Fork of the San Jacinto River above where it merges with Caney Creek. Image courtesy of Google Earth.

Red lines on left measure width of East Fork on 3/3/16, before the Tax Day Storm. They are in a separate layer. Switching the background image to 10/28/17 shows that the river is virtually unchanged, thanks in large part to the lush riparian vegetation.

Now, A Trip up the West Fork

Now, let’s look at the West Fork. It’s vastly different.

Townhomes on Marina Drive in Forest Cove. Concrete, steel and wooden walls on the West Fork were less effective at preventing erosion than blades of grass on the East Fork.

Same area. Note steepness of banks where vegetation can no longer take hold, perpetuating cycles of erosion.

Remnants of concrete retaining wall.

Site of a breach in sand mine dike on the West Fork. The mine discharged sediment directly into the river.

Two weeks after Harvey. Just north of US 59 bridge.

West Fork Sand mine complex. Note one of many dike breaches in various mines that allowed sand and sediment to pour downstream. All helicopter images taken two weeks after Harvey on 9/14/17.

Mining a point bar after Harvey. Miners are supposed to work within their dikes to avoid disrupting vegetation along the river. Photo taken 9/14/17.

Note more repairs to dikes.

The next three images form a series.

River is migrating toward pit in background at the rate of 12 feet per year, in part, due to lack of vegetation protecting banks. See next two images before for overhead views.

This is what the area above looked like in a 1995 USGS aerial photo on Google Earth. Compare the location of the red line in this image with the location in the next image. The GPS coordinates of the line are identical. But the river has migrated.

 In just 23 years, the West Fork migrated 258 feet toward the dike on the right and now threatens it. The river has eaten away at the dike an average of 12.4 feet per year. The dike is now only 38 feet wide.

A bright white trail of sand leads all the way from the mines to the mouth bar which helped back water up into the highly populated Humble/Kingwood area. Fresh sand is several feet deep. Note absence of grasses. Many of the trees will also soon die.

Nearing the US59 bridge

Confluence of West Fork and Spring Creek, which also contributed sand to this event.

The next two images form a before/after pair.

West Fork of the San Jacinto over the US 59 Bridge before the Tax Day flood in 2016. River was 330 feet wide. Image courtesy of Google Earth.

GPS coordinates of the red line have not changed; the river has. After Harvey (in a little more than two years), the West Fork widened to 489 feet and shifted north by 113 feet. In part, this was due to excessive sediment that killed vegetation along the banks and accelerated erosion. Dead trees swept downriver were trapped by the bridge pilings, forming a dam that helped flood Humble businesses south of this photo. The southbound lanes of the bridge had to be replaced by TexDoT at a cost of approximately $20 million because of erosion. 

Union Pacific railroad traffic was disrupted for months.

Mountains of sand may kill the remaining trees in this area, exposing it to even more erosion during the next storm.

Sand, in part, from the mines, has almost totally blocked the West Fork where it meets Lake Houston. Before/after measurements show that as much as ten feet was deposited in this area during Harvey (approximately five feet below water and five above). This forms a dam behind the dam, that backs water up into the Humble/Kingwood corridor during storms. Unless this sediment is removed, a storm smaller than Harvey could create Harvey-scale flooding.

Tree Loss in East End Park Has Already Started

Acres of trees in Kingwood’s East End Park have already started to die back as a result of being buried in dunes 10-15 high. I believe that sand, in large part, from the 750-acre mine upstream on Caney Creek is causing this. Piling as little as six inches of sediment around the base of a tree can kill it.

Trees dying in Kingwood’s East End Park because of massive sediment build up around their trunks.

The website SF Gate describes how this die-back happens. “Soil added around a tree reduces the amount of oxygen available to the roots and slows the rate of gas exchange in and around the roots. There may be less moisture and nutrients available to the roots or too much moisture may remain around the tree’s roots. Inadequate oxygen reaching the roots or microorganisms in the soil around the roots can lead to an accumulation of chemicals that can injure tree roots. The tree’s bark may decay where soil is newly in contact with it. Damage or injury to the tree because of the added soil may not become apparent for several months or years and generally appears as a slow decline followed by death.” The same thing can happen with grasses and smaller trees along riverbanks. Once they die back and there is nothing left to bind the soil…

“Sediment is the primary pollutant expected from quarry operations.”

The Texas Commission on Environmental Quality says, “Sediment is the primary pollutant expected from quarry operations.” See page 22 of this 2012 report from the Texas Commission on environmental quality about the John Graves Scenic Riverway District on the Brazos.  The TCEQ also conducted experiments showing that certain types of revegetation can reduce sediment discharge from mines by 98 percent.

These findings are consistent with Louisiana Best Management Practice Guidelines for Sand Mines. They state that grasses can reduce erosion by 99%.

Conclusion

In the upcoming legislative session, the Lake Houston area needs to push for the creation of a river preservation district like the John Graves. The Graves District excludes sand mines from the 100-year flood plain and floodway where most erosion happens.

All Lake-Houston-area mines are in the FLOODWAY with the exception of one. A floodway is defined as the main channel of the river during a flood. This makes the mines more susceptible to river capture and massive erosion, which can create a downward spiral as we have seen above. Eventually it can lead to loss of property.

Our preservation district would stretch from Lake Conroe to Lake Houston, the primary sources of water for two million people.

The lives, health, homes, and businesses of two million people are certainly worth as much as protecting some scenery.

Posted by Bob Rehak on 12/1/18

449 Days after Hurricane Harvey

Holiday in the Gardens at Mercer Next Week

This is a little off topic. However, the post about Mercer Botanic Gardens generated so much interest that I thought I would follow it up with some good news for all those people still struggling to rebuild their homes after Harvey. Here’s an event at Mercer that the whole family can enjoy. It will help you take your mind off flooding for a day.

 

Holiday in the Gardens and Winter Plant Sale at Mercer

Celebrate the holiday season with music, food, crafts, shopping, and more during Holiday in the Gardens Saturday, Dec. 8 from 11 a.m. to 5 p.m. at Mercer Botanic Gardens.

This family-oriented event offers a holiday market, winter plant sale, and a Children’s Corner. Attractions include face painting, a visit from Santa, and holiday-themed crafts. Entrance is free, and children’s activities are available while supplies last. Food, drinks, and holiday gifts are available for purchase.

Volunteers Needed

Volunteers are needed for Holiday in the Gardens! Anyone who would like to volunteer or has questions can contact Mercer’s Volunteer Coordinator Jamie Hartwell at jhartwell@hcp4.net. New volunteers must complete a volunteer application, available at www.hcp4.net/mercer/volunteering.

Location

Mercer Botanic Gardens is a Harris County Precinct 4 Parks facility located one mile north of FM 1960 at 22306 Aldine Westfield Road in Humble, 77338. Heartfelt thanks go to Commissioner R. Jack Cagle for continuing to believe in this facility and sponsor events like Holiday in the Gardens.

Open to All

Harris County Precinct 4 programs serve people of all ages regardless of socioeconomic level, race, sex, religion, national origin, or physical ability. Anyone seeking additional information or requiring special assistance to participate in any program should contact Mercer at 713-274-4160 or online at www.hcp4.net/community/parks/mercer.

By Crystal Simmons, Harris County Precinct 4

Posted by Bob Rehak with some editorial comments on 11/30/2018

458 Days since Hurricane Harvey

Senator Creighton’s Update on Flood Mitigation Accomplishments to Date

We all have a tendency to focus on what we want to accomplish in the future. Sometimes, especially at the end of a year, it’s also good to take stock of what we have accomplished in the past. State Senator Brandon Creighton put together a newsletter that does just that. It provides a great summary of flood mitigation accomplishments affecting the Lake Houston area since Hurricane Harvey. They include:

  • Rescue operations during the flood
  • Donation drives for relief supplies
  • Passage of $89.3 billion disaster relief bill at Federal level
  • Public hearings to identify things that contributed to the disaster
  • Plea to See – tours of the disaster area by Governor Abbott, Lieutenant Governor Patrick, and Land Commissioner Bush
  • Appointment of Lake Houston area representatives to SJRA board
  • Lowering of Lake Conroe during peak of hurricane season to provide a buffer against flooding
  • Expansion of SJRA’s responsibilities to include flood prevention
  • Passage of Senate Bill 1047. It allows those affected by disaster to pay property taxes in quarterly installments.
  • Start of dredging
  • Installation of new SJRA and Harris County Flood Control District gauges
  • Institution of new policies re: SJRA warning notices
  • Approval of Harris County $2.5 billion flood bond
  • Request for reservoirs along Lake and Spring creeks to reduce inbound water during floods
  • Request for ten additional tainter gates at Lake Houston Dam to discharge water earlier and faster during floods.

One of two dredges on the San Jacinto that will eventually devour the sand bar that now dwarfs it. The sand bar blocks a major drainage ditch. The blockage contributed to the flooding of more than 650 homes.

Many people, including Senator Creighton, played major roles in these accomplishments. For a complete description of who is doing what, download Senator Creighton’s Hurricane Harvey Newsletter.

As we look back at our accomplishments, we should be proud. But we should also not forget that the major work lies ahead. Requesting gates and reservoirs, or even appropriating money for them, is not the same thing as building them. Having a meeting about the mouth bar is good, but not as good as removing it.

In summary, we’ve had a good year, but we can’t let up. The job isn’t done yet.

Posted by Bob Rehak on 11/29/2018

457 Days since Hurricane Harvey

Mercer Botanic Gardens After Harvey: Still One of the Gems of Harris County

Mercer Botanic Gardens has always been a work in progress…perhaps a little more so since Hurricane Harvey. The Harris County Precinct 4 Park – known for its ever-changing natural color, idyllic walkways, and dazzling displays of native plants – took it on the chin during Harvey. The flood devastated plantings and caused some of the worst damage in Mercer’s history. Floodwaters up to eight feet high ravaged paths, buildings, and gardens. They downed trees, ripped beds out by the roots, and buried  everything under layers of  mud.

Downed Tree after Harvey

Flooded Meeting Room

Ruined Beds

Back, Bigger, Better

The Botanic Gardens – a favorite of gardeners, seniors, and parents with small children– offers a civilized version of nature, relaxing strolls while holding hands, quiet contemplation, a place to learn, and a place to forget about all the stresses of modern life.

Now, under the leadership of Jack Cagle, Harris County Precinct 4 commissioner, it’s becoming that again…with some major improvements that will help it better survive future floods. The county and volunteers have spent much of the last year rebuilding, replanting, restoring, and even relocating parts of the facility.

Changes

Plans to relocate parts of the gardens began after the Tax Day Flood damaged areas of Mercer closest to Cypress Creek. The devastation highlighted the need for additional acreage on higher ground. Soon after, The Mercer Society, the nonprofit providing philanthropic support to Mercer, launched the Rebuild Mercer Campaign with a goal of purchasing 34 additional acres. Much of that land had already been purchased when Harvey hit, necessitating even more changes.

By Christmas last year, the Mercer Society (TMS) relocated their Gift and Plant Shoppe to 400 Main Street in Old Town Spring. Filled with botanic treasures, holiday gifts, and an assortment of plants, The Gift Shoppe is open Monday through Saturday from 10 a.m. to 5 p.m. and Sunday from 11 a.m. to 4 p.m.

By March of this year, the Gardens had officially reopened.

In September, more than 100 veterans with The Mission Continues and 17 CarMax employees volunteered to install sod and prepare raised beds throughout the Creekside Ramble and parts of Storey Lake.

Volunteers sod Creekside Ramble

Part of Mercer’s new west side.

Construction of a new library will begin in 2019. And 4.5 acres of additional gardens could be open by Spring.

Cypress swamp on Mercer’s new west side

Where to Find Mercer

Located at 22306 Aldine Westfield Road, just a few blocks north of the airport and 1960, the Botanic Gardens are a 15 to 20 minute drive from Humble and Kingwood.

You and your family may find some of these upcoming events interesting.

Mercer Winter-Spring 2019 Programs

January

Children’s Winter Camp. Wednesday, Jan. 2 through Friday, Jan. 4 from 9 a.m. to 3 p.m. Children can kick off the new year with lessons in healthy cooking at Mercer’s Winter Camp. Following the Learn! Grow! Eat! & Go! Junior Master Gardener curriculum, children will use the Charlie Cart Project mobile kitchen to practice cooking techniques encouraging healthy eating. Children will also plant vegetables, taste fresh produce, and engage in fun, outdoor physical activities. Space is limited, and registration is required. $30 per child. Registration starts Monday, November 19. To register or to receive additional information, call Mercer Botanic Gardens at 713-274-4160.

Lunch Bunch: Palm Textures. Wednesday, Jan. 9 from noon to 2 p.m. Palms add texture to the landscape and make any garden feel like a tropical paradise. Cheyenne Griffin, Mercer Botanic Gardens horticulturist, will discuss these textures and how to protect palms from the cold. Participants should bring a lunch and dress for the weather. Lunch Bunch is a free program offered at Mercer’s East Side Gardens and is recommended for participants ages 12 and older. To register or to receive additional information, contact Mercer Botanic Gardens at 713-274-4160 or mercerbotanicgardens@hcp4.net.

February

Lunch Bunch: The Basics of Backyard and Small-Scale Composting. Wednesday, Feb. 13 from noon to 2 p.m. Experienced horticulturists and gardeners often tout compost as the black gold of the gardening world because of the wonders it can perform in the garden. John Ferguson, owner of Nature’s Way Resources, demonstrates how to produce compost for small and large properties, from the backyard to golf courses. All materials, including tools and equipment, is provided by Mercer. Participants should bring a lunch and dress for the weather. Lunch Bunch is a free program offered at Mercer’s East Side Gardens and is recommended for participants ages 12 and older. To register or to receive additional information, contact Mercer Botanic Gardens at 713-274-4160 or mercerbotanicgardens@hcp4.net.

March

Children’s Spring Camp. Monday, March 11 through Thursday, March 14 from 9 a.m. to 3 p.m. Spring is a time for newness and change. During Mercer’s Spring Camp, children will explore and embrace foods and cooking techniques that encourage healthy eating habits. Mercer’s education staff will utilize the Learn! Grow! Eat! & Go! Junior Master Gardener curriculum and the Charlie Cart mobile kitchen during this unique children’s camp. Camp includes planting vegetables, tasting fresh produce, and engaging in fun, outdoor physical activities. Space is limited, and registration is required. $40 per child. Registration starts Monday, January 28. To register or to receive additional information, call Mercer Botanic Gardens at 713-274-4160.

March Mart Plant Sale. Friday, March 15 from 10 a.m. to 4 p.m. and Saturday, March 16 from 8 a.m. to 4 p.m. Shop a variety of hard-to-find plants during one of the Texas Gulf Coast region’s largest and most anticipated horticultural events beginning Friday, March 15 at 10 a.m., with early shopping for The Mercer Society Members (TMS) at 8 a.m. An invitation only reception and plant sale for TMS Supporting Members and higher begins Thursday, March 14 from 4 p.m. to 7 p.m. All-day express checkout is available for The Mercer Society members only. To receive additional information or to purchase your membership, call Mercer Botanic Gardens at 713-274-4160.

March Mart Training. Individual and group training will be conducted on an as needed basis. All volunteers are welcome to contact the Mercer volunteer coordinator at 713-274-4160 or mercerbotanicgardens@hcp4.net for any questions and additional information regarding March Mart assignments or shifts.

Lunch Bunch: Honeybees and Backyard Beekeeping. Wednesday, March 20 from noon to 2 p.m. Join Jerry Maxwell and Roger Nelson, members of the Montgomery County Beekeepers Association, as they discuss interesting facts and details about honeybees, the amazing role bees play in our environment, and the benefits of pure honey. Learn what it takes to start your own beekeeping adventure in your own backyard. Participants should bring a lunch and dress for the weather. Lunch Bunch is a free program offered at Mercer’s East Side Gardens and is recommended for participants ages 12 and older. To register or to receive additional information, contact Mercer Botanic Gardens at 713-274-4160 or mercerbotanicgardens@hcp4.net.

April

Lunch Bunch: The Incredible Edibles. Wednesday, April 10 from noon to 2 p.m. Join a casual conversation with Marilyn O’Connor, the Herb Lady, and discuss ways to incorporate herbs into your garden year-round. Enjoy hands-on, scratch-and-sniff fun while exploring the textures and fragrances of various herbs. Then, stroll the Herb Garden at Mercer for more inspiration! Participants should bring a lunch and dress for the weather. Lunch Bunch is a free program offered at Mercer’s East Side Gardens and is recommended for participants ages 12 and older. To register or to receive additional information, contact Mercer Botanic Gardens at 713-274-4160 or mercerbotanicgardens@hcp4.net.

Ongoing Events

North Side Greenhouse Team. Tuesdays, Wednesdays, and Thursdays from 9 a.m. to noon. Join a plant committee and grow plants year-round for events and sales or help with various projects from construction to irrigation! Contact Mercer’s volunteer coordinator at 713-274-4160 or mercerbotanicgardens@hcp4.net.

Gardening. Tuesdays from 9 a.m. to noon. Seek out what’s blooming and learn about plant grooming, pruning, and weeding in the Pollinator and Conservation gardens. Wear closed-toe shoes, gloves, and hat, and bring sunscreen and water. Contact Mercer’s volunteer coordinator at 713-274-4160 or mercerbotanicgardens@hcp4.net.

Gardening. Thursdays from 9 a.m. to noon. Take part in plant grooming, pruning, weeding, and mulching in the Prehistoric and Shade gardens. Wear closed-toe shoes, gloves, and hat, and bring sunscreen and water. Contact Mercer’s volunteer coordinator at 713-274-4160 or mercerbotanicgardens@hcp4.net.

Cooking Thyme. Select Wednesdays from 10 a.m. to 11 a.m. Explore fresh food with all five senses during the Cooking Thyme program at Mercer Botanic Gardens. Children will learn the connections between cooking and the plants that grow in the garden and on the farm. This free, hands-on opportunity allows children to prepare and taste foods and equips them with knowledge to make healthy food choices. Cooking Thyme classes for children in kindergarten through second grade are scheduled Feb. 6, March 6, and April 3. Classes for children in third grade through fifth grade are scheduled Jan. 16, Feb. 20, March 20, and April 17. Registration is required, and space is limited. To register or for more information, call Mercer Botanic Gardens at 713-274-4160.

Lunch Bunch. Second Wednesday of the month from noon to 2 p.m. Join fabulous speakers at these free presentations covering diverse topics. Participants should bring a lunch and dress for the weather. Lunch Bunch is a free program offered at Mercer’s East Side Gardens and is recommended for participants ages 12 and older. For more information, contact Mercer Botanic Gardens at 713-274-4160 or mercerbotanicgardens@hcp4.net.

Storytime in the Gardens. Every Monday at 10:30 a.m. In partnership with Harris County Public Library, Mercer presents a unique Storytime in the natural setting of Mercer for parents and children to enjoy together. Storytime garden locations may vary each week. Call 713-274-4160 to find out the location or to check for cancellations due to weather or holidays.

Mercer serves people of all ages regardless of socioeconomic level, race, sex, religion, national origin, or physical ability. Anyone seeking additional information or requiring special assistance to participate in any program should contact Mercer at 713-274-4160 or mercerbotanicgardens@hcp4.net. Visit Mercer online at www.hcp4.net/Community/Parks/Mercer.

Posted by Bob Rehak with help from Crystal Simmons

Photos Courtesy of Harris County Precinct 4

Beauty Courtesy of the Creator

455 Days since Hurricane Harvey

 

Flood-delayed Memorial Hermann Convenient Care Center Finally Opens in Kingwood Town Center

Memorial Hermann’s Convenient Care Center in Kingwood finally opened on November 19, 2018. The original opening had been planned for September 16, 2017, right after Harvey. Remediation and reconstruction due to flooding delayed the opening more than 14 months. The opening represents yet another milestone on the long road to recovery.

Memorial Hermann’s new Convenient Care Center in Kingwood in now open 24/7, even though construction trailers still occupy much of the parking lot. 

Days Away from Opening when Harvey Struck

“When Hurricane Harvey struck, we were days away from the grand opening,” said Josh Urban, senior vice president and CEO of Memorial Hermann Northeast Hospital and Memorial Hermann The Woodlands Medical Center. “Like many others in our community, we experienced significant damage from the storm.”

New Type of Health Care Delivery

The 44,450-square-foot Convenient Care Center will offer adult and pediatric primary care through Memorial Hermann Medical Group. It will also offer comprehensive imaging services, lab services, sports medicine and rehabilitation, and a 24-hour Emergency Room staffed by board-certified emergency medicine physicians and nurses.

“Memorial Hermann’s Convenient Care Centers offer a new approach to health care,” said Teal Holden, senior vice president of Memorial Hermann Ambulatory Services. The Center takes the stress out of scheduling appointments for routine health needs. It offers families primary care connected to a host of conveniently located support services..

Easy Transfer to Higher Levels of Care if Necessary

The Kingwood location is an extension of Memorial Hermann Northeast.  And it connects to the larger Memorial Hermann system. If patients need higher level of care, patients can be transferred to nearby full-service hospitals.

The Convenient Care Center is at the eastern end of the new H-E-B shopping center that flooded so badly. For more information, visit http://www.memorialhermann.org/locations/convenient-care-center-kingwood/

Memorial Hermann has been a large part of the Humble/Kingwood Community for generations. I’m happy to see that MH’s commitment to this facility survived the storm.

Construction trailers still occupy most of the parking lot, but the Center has indeed opened. For those who wondered whether it would ever happen, it’s a welcome sight for sore eyes…and sore backs.

At 10PM Sunday night, Memorial Hermann’s new Convenient Care Center in Kingwood had two cars parked in front of the ER entrance.

Posted by Bob Rehak on November 25, 2018

453 Days since Hurricane Harvey

 

 

Recent Texas Supreme Court Ruling Clarifies Your Property Rights Versus Another’s

Sand miners may argue that their property rights give them an absolute right to do what they want on their own property. However, such claims ignore a 2016 Texas Supreme Court ruling that clarified nuisance law. The very word “nuisance” may conjure up images of “trivial or petty annoyances.” However, people often use nuisance laws to settle serious environmental and property-damage claims.

Texas Supreme Court Case No. 15-0049, Crosstex North Texas Pipeline L.P. v. Andrew and Shannon Gardiner, resulted in guidelines for deciding property rights conflicts in such nuisance claims.

I have summarized the 54-page decision below for convenience, but am not a lawyer and do not offer legal advice. Also, inevitably, editing involves selective omissions. After reading this, if you are interested, I urge you to review the full text of the decision by clicking on the link above.

Details of Case

This case applies to private (individual) nuisance cases. In Crosstex v. Gardiner, the Gardiners claimed that Crosstex built a compressor station adjacent to their ranch that made living there unbearable and diminished the value of their property. Up to four compressors, each the size of mobile homes, ran constantly; at least one ran at all times. According to the Gardiners, they literally shook the ground, caused vibrations, and created as much noise as jet engines or railroad locomotives. They asked the pipeline company to reduce the noise by enclosing the compressors in a building. The pipeline company instead built three walls around the compressors and planted foliage. However, it left the side facing the Gardiners open. A jury awarded the Gardiners $2 million.

Defendants appealed the case. The Texas Supreme Court ruled on it in 2016. The Court’s decision has been lauded nationally because of the clarity it brought to conflicting and confusing precedents in this area of the law. Googling the case shows more than 18,000 references to it, most by law firms, other court decisions, and national media.

What the Decision Includes

In the decision, the Court:

  • Defines “nuisance”
  • Explains that nuisance is a type of legal injury – not a cause of action
  • Discusses types of conduct that create nuisances and legal liability
  • Confirms that whether a defendant is liable presents fact issues for a jury to decide.

Court’s Definition of Nuisance

A nuisance, says the Court, can result from such things as “water, stones, rubbish, filth, smoke, dust, odors, gases, noises, vibrations, and the like.”

Early cases examined by the Court reflected efforts to balance a property owners’ rights. One person’s desire to use his property as he desires should not unreasonably injure a neighbors’ rights to the use and enjoyment of his property. The following passage could have been written about sand mines:

“…When expensive plants have been erected and are used in carrying on a useful business[,] adjacent property owners will not be permitted to maintain actions for every trifling annoyance which such business causes them.” Storey, 226 S.W.2d at 618. But “the fact that the business is a useful or necessary one or that it contributes to the welfare and prosperity of the community is not determinative,” and “the law does not allow one to be driven from his home or compelled to live in substantial danger or discomfort even though the danger or discomfort is caused by a lawful and useful business.” Id.

More recently, however, the Texas Supreme Court has consistently used a more comprehensive definition of nuisance:

“A ‘nuisance’ is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.”

The term “nuisance,” they say, does not refer to the “wrongful act” or to the “resulting damages,” but only “to the legal injury—the interference with the use and enjoyment of property—that may result from the wrongful act and result in the compensable damages.”

Requirements

The Court defines nuisance as a legal injury only if:

  • The interference is “substantial” and …
  • Causes “discomfort or annoyance” …
  • That is “unreasonable.”

Duration

Further, the Court says, “[T]he duration or recurrence of the interference is merely one—and not necessarily a conclusive—factor in determining whether the damage is so substantial as to amount to a nuisance.”

Support for “Substantial”

“To support a claim for private nuisance, the condition the defendant causes may interfere with a wide variety of the plaintiffs’ interests in the use and enjoyment of their property. It may, for example, cause:

  • Physical damage to the plaintiffs’ property
  • Economic harm to the property’s market value
  • Harm to the plaintiffs’ health
  • Or psychological harm to the plaintiffs’ ‘peace of mind’ in the use and enjoyment of their property.”

“But to rise to the level of nuisance, the interference must be ‘substantial’ in light of all the circumstances.”

“Even a substantial interference, however, does not constitute a nuisance unless the effect of the interference on those who would otherwise use and enjoy their land is ‘unreasonable.'”

Support for Unreasonable

Unreasonable means “the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.”

Regarding this unreasonableness requirement, the Court highlighted three points.

  • First, it focuses on the unreasonableness of the interference’s effect on the plaintiff’s comfort or contentment, not on the unreasonableness of the defendant’s conduct or land use.
  • Second, unreasonableness must be determined based on an objective standard of persons of ordinary sensibilities, not on the subjective response of any particular plaintiff.
  • Third, as is typical with legal inquiries into reasonableness, the determination requires balancing a wide variety of factors, depending on the specific facts.

In summary, the court said, “Today we clarify that to prove a nuisance (that is, a legal injury based on interference with use and enjoyment of land), a plaintiff must establish that the effects of the substantial interference on the plaintiff are unreasonable—not that the defendant’s conduct or land use was unreasonable.”

Factors That May Be Considered

Determining whether a defendant’s interference with a plaintiff’s use and enjoyment of land is substantial or whether any particular effect of that interference is unreasonable requires consideration and balancing of a multitude of factors. Depending on the circumstances of the case at hand, these may include, among others:

  • the character and nature of the neighborhood, each party’s land usage, and social expectations;
  • the location of each party’s land and the nature of that locality;
  • the extent to which others in the vicinity are engaging in similar conduct in the use of their land;
  • the social utility of each property’s usage;
  • the tendency or likelihood that the defendant’s conduct will cause interference with the plaintiff’s use and enjoyment of their land;
  • the magnitude, extent, degree, frequency, or duration of the interference and resulting harm;
  • the relative capacity of each party to bear the burden of ceasing or mitigating the usage of their land;
  • the timing of each party’s conduct or usage that creates the conflict;
  • the defendant’s motive in causing the interference; and
  • the interests of the community and the public at large.

To summarize and repeat, “nuisance” refers to a “condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.”

“To establish such a legal injury, the plaintiff must prove that the interference is substantial and the resulting discomfort or annoyance is unreasonable, but need NOT establish that the defendant’s conduct or land use was unreasonable. That issue goes to whether the defendant can be legally liable for creating a nuisance and we turn to that question next,” said the court. (Emphasis added.)

Three Types of Conduct that Create Liability

The Court recognized three types of nuisance claims based on defendant’s actions:

  • Intentional Nuisance
  • Negligent Nuisance
  • Strict-liability Nuisance

Distinction Between Negligence and Nuisance

Negligence is one way that a defendant can create a nuisance. “To put it bluntly, a nuisance claim based on negligence is merely a negligence claim with harm to interests in use and enjoyment.”); HARPER§§ 1.23, at 102 (although “negligence is one way in which a nuisance may be caused, . . . where that is the case there is no distinction—the two coalesce”), 1.24, at 109 (“To the extent that one fails to take reasonable precautions to minimize the harmful effects of one’s activity, there is a case of common negligence.”)

“We think the better approach to reduce confusion is to clarify, as we do today, that the term ‘nuisance’ refers not to a cause of action or to a defendant’s conduct, but to the legal injury that the conduct causes and that gives rise to the cause of action.”

“We have no difficultly concluding that a defendant can be liable for ‘negligently’ causing a ‘nuisance,'” says the court. “In this category, the claim is governed by ordinary negligence principles. The elements the plaintiff must prove are ‘the existence of a legal duty, a breach of that  duty, and damages proximately caused by the breach.’”

Inappropriate Place or Abnormally Dangerous Activities

Even in the absence of intent or negligence, “a nuisance may arise where the defendant carries on in an inappropriate place an abnormally dangerous activity [that] necessarily involves so great a risk to its surroundings that its location may be considered unreasonable, and a strict liability may be imposed.’ PROSSER, 3d ed. § 88, at 596–97.” (Emphasis added.)

As I read this section of the decision, I thought about sand mining on point bars along the San Jacinto. Numerous academic studies cite river capture of the pits during floods as a “virtual certainty” over time. In fact, many of the pits were captured during several recent floods, not just Harvey. And as a result, much sediment was carried downstream which contributed to flooding that damaged homes and businesses.

Given the location of most of the West Fork mines:

… one could argue that pit capture and its consequences were eventually inevitable.

Sand mine pit capture during Harvey. The river took a shortcut across a point bar through the mine, sweeping sediment downstream. 

During Harvey, floodwaters swept through this complex and breached dikes in multiple locations. 

Some of that sediment now is likely part of this giant sand bar that was deposited during Harvey. It blocks the drainage ditch that empties the western third of Kingwood. Approximately 650 homes above this one blockage flooded during Harvey. While the sandbar looks small from the air, it is up to 15 feet high.

Liability Possible Even When Not Negligent

One precedent cited in the decision was a defendant who stored large volumes of water in a reservoir on his land. He was strictly liable for damage that resulted when the water escaped, “however skillfully and carefully the accumulation was made,” because the otherwise-unrestrained water was a “dangerous substance.” Later, the court observed, “the question is not really the nature of the defendant’s original conduct but whether he shall be permitted to continue it.”

“The mere fact that the defendant’s use of its land is “abnormal and out of place in its surroundings” will not support a claim alleging a nuisance; instead, in the absence of evidence that the defendant intentionally or negligently caused the nuisance, the abnormal and out-of-place conduct must be abnormally ‘dangerous’ conduct that creates a high degree of risk of serious injury.”

Remedies

“It is well-settled,” says the Court, “that three different remedies are potentially available to a claimant who prevails on a private-nuisance claim: damages, injunctive relief, and self-help abatement.”

However, not all remedies are available in every case. “Unlike the determination of whether a nuisance occurred, the decision to enjoin the defendant’s conduct or use is “a discretionary decision for the judge after the case has been tried and the jury discharged.” Damages could even include the cost of restoring land, says the Court.

Temporary vs. Permanent Damages

When the nuisance is temporary, the claimant may recover “only such damages as have accrued up to the institution of the suit or … to the trial of the action.”

When the nuisance is permanent, the claimant may recover lost market value.

Decision in Crosstex v. Gardiner Case

Said the Court: “The duty that Crosstex owed to the Gardiners was the duty to do what a person of ordinary prudence in the same or similar circumstances would have done. See Timberwalk Apartments, 972 S.W.2d at 753; see also Elliff v. Texon Drilling Co., 210 S.W.2d 558, 563 (Tex. 1948) (“In the conduct of one’s business or in the use and exploitation of one’s property, the law imposes upon all persons the duty to exercise ordinary care to avoid injury or damage to the property of others.”); Rhodes v. Whitehead, 27 Tex. 304, 307 (1863) (“The great principle which seems to control all the modern cases is, that men must so use their own as not to injure the rights of others, or to incommode others; they must not endanger health or comfort, or produce inconvenience, and there can be no prescriptive right in a nuisance.”)“

Further, the court observed that: “The evidence of that breach included testimony that the noise was louder than even Crosstex anticipated, that the mitigation efforts Crosstex implemented did not lessen the noisome interference, and that Crosstex could have taken other steps to mitigate the noise but chose not to because of cost considerations. We agree with the court of appeals that some evidence supports the jury’s finding that Crosstex acted negligently in creating the condition that the jury found to constitute a nuisance.”

Net Takeaway on Nuisance

The court concluded:

“We hold today that the term “nuisance” describes a particular legal injury involving interference with the use and enjoyment of property but does not describe a cause of action; that a defendant can be liable for intentionally or negligently causing a condition that constitutes a nuisance; and that neither claim requires a separate finding that the defendant unreasonably used its property when creating a nuisance.”

My observations about sand mining within this review are matters of opinion on public policy and not intended to be legal advice. They are protected by the First Amendment of the United States Constitution and the Anti-SLAPP statute of the great State of Texas.

Posted by Bob Rehak on November 24, 2018

452 Days since Hurricane Harvey