Tag Archive for: Army Corps

Equity Myth Buster: “Rich Neighborhoods Get All the Flood-Mitigation Funding”

A myth being promulgated in Harris County Commissioners Court and certain low-to-moderate income (LMI) watersheds these days goes something like this:

  • The FEMA Benefit/Cost Ratio (used to rank grant applications for flood-mitigation projects) favors high-dollar homes.
  • That disadvantages less affluent, inner-city neighborhoods compared to more affluent suburbs.
  • Therefore, less affluent neighborhoods get no help and the more affluent neighborhoods get it all.

This post busts that myth. But it won’t stop activists from demanding more “equity.”

If you look at all flood-mitigation spending in Harris County since 2000, on average, less affluent watersheds already receive 4.7X more partner funding per watershed than their more affluent counterparts.

Analysis of data obtained via FOIA request

Myth Ignores Other Factors, Frequently Leaps to Wrong Conclusions

Like much of political discourse these days, the myth focuses on a narrow sliver of truth, ignores other factors, and frequently leaps to the wrong conclusions.

An analysis of Harris County Flood Control District data going back to the start of this century shows how far off the myth can be.

There are dozens of different ways to slice and dice the data. I’ve looked at most of them and validated “dollars invested” with aerial photography.

Today, I focus on partner grants because they represent such a huge percentage of the flood-bond budget and because there is so much misinformation floating around about them.

And I will look at partner funding from the standpoint of outcomes, not just processes (as in the myth).

Methodology for Analysis

For this analysis I obtained Harris County Flood Control District spending data between 1/1/2000 and 9/31/2021 via a Freedom of Information Act (FOIA) request. I requested the data by watershed, decade, pre-/Post Harvey, source of funding (local vs. partner), and type of activity (i.e., engineering, right-of-way acquisition, construction and more). I cross-referenced this with other data such as flood-damaged structures, population, population density, and percentage of low-to-moderate income (LMI) residents.

When considering grants, the percentage of LMI residents in a watershed takes on special significance. Department of Housing and Urban Development (HUD) grants often require high percentages of LMI residents in the area under consideration.

In the charts below, you will see references to watersheds with LMI populations above and below 50%. Above 50% means more than half the residents in the watershed have an income LESS THAN the average for the region. Below 50% means more than half the residents earn more than the regional average.

Harris County has 23 watersheds. Eight have LMI percentages above 50% (less affluent). Fifteen have LMI percentages below 50% (more affluent).

When reviewing the charts below, pay particular attention to the italicized words: Total, Partner, and On Average. They represent three different ways to look at the same question: Do housing values disadvantage an area when applying for grants?

For this analysis, I focused only on the long term, since decisions on more than a billion dollars in flood-bond grants are still outstanding.

FOIA Analysis Contradicts the Popular Myth

One of the first things you notice when you look at watersheds above and below 50% LMI, is that the eight least affluent watersheds have gotten more than 60% of all dollars actually spent on flood mitigation since 2000.

Less affluent watersheds, despite being half as numerous, received 60% of all dollars since 2000.

Because the allegation was that partnership grants favored affluent areas, I then analyzed whether partner dollars went mostly to affluent or less-affluent watersheds. The answer is less affluent…overwhelmingly.

More than 70% of all partner dollars in the last 22 years went to the eight less-affluent watersheds.

The last observation by itself is telling. But because of the widely different number of watersheds in each group, I also wanted to calculate the average partner dollars per watershed in each group. This blows the “rich neighborhoods get all the grants” argument to pieces. Less affluent watersheds got, on average, 4.7X more.

Dividing the total partner dollars by the number of watersheds in each group shows that less affluent watersheds average 4.7X more than affluent ones.

This busts the myth. But digging even deeper into the data reveals two things: wide variation between sources of funding and within LMI groupings.

USACE Funding Skews Partner Totals

The U.S. Army Corps of Engineers (USACE) accounts for much of the partner funding. USACE has provided significant funding for projects in the Sims, Brays, White Oak, Hunting, and Greens Bayou watersheds. The Clear Creek watershed will also soon see work on a new USACE project. USACE has completed its planning process and proved positive benefits to national economic development. That made projects worthy of Federal investment. 

Halls Bayou: Digging Deeper

The Halls Bayou watershed also went through the USACE planning process, but the results did not show enough flood-damage-reduction benefits to outweigh the costs of the proposed projects. Thus, the Halls Bayou watershed currently has no USACE-funded projects.

Despite that, Halls has received more partner funding than 16 other watersheds since 2000. Only two watersheds in the affluent group of 15 received more partner funding. See the table below.

Total and partner spending by watershed since 2000 arranged in order of highest to lowest LMI percentages.

USACE also evaluated the more affluent Buffalo Bayou; results showed that costs outweighed the flood-damage-reduction benefits there.

Despite Halls having the highest percentage of LMI residents in Harris County, Halls has received more total funding and 2.5X more partner funding than Buffalo Bayou in the more affluent group.

FEMA Considers More than Home Values, Not All Grants Come From FEMA

While it’s true that FEMA considers housing values as a factor in benefit/cost ratios, benefit/cost ratios (BCRs) also consider factors such as:

  • The number of structures damaged
  • Threats to infrastructure
  • Proximity to employment centers
  • Need for economic revitalization
  • Percentage of low-to-moderate income residents in an area
  • Number of structures that can be removed from the floodplain by a project.

And not all grants come from FEMA. For instance:

So don’t settle for soundbites. They often mislead.

Posted by Bob Rehak on 12/30/2021

1584 Days since Hurricane Harvey

Widening of Hunting Bayou Kicks into High Gear

Widening of Hunting Bayou, one of the poorest and most flood-damaged watersheds in the county, is kicking into high gear.

Annual Rate of Spending Almost Quadruples since Harvey

According to data obtained as part of a Freedom of Information Act (FOIA) request, Harris County Flood Control District and its partners (mainly the Army Corps and City of Houston), spent $44 million on flood mitigation in the Hunting Bayou watershed between 1/1/2000 and Hurricane Harvey.

That averaged $2.4 million per year for those 18 years. However, in the 4 years since Harvey, HCFCD has spent $37 million – more than $9 million per year.

That rate of spending averages 3.75X higher after Harvey than before.

HCFCD Spending Data Obtained via FOIA Request

Here’s a breakdown.

From FOIA Request. Hunting Bayou flood-mitigation expenditures by time period and category since 1/1/2000 through end of third quarter 2021.

Focus of Current Construction Activities

The upstream portion of Hunting Bayou parallels the south side of Loop 610 for most of its length. Where North Loop 610 turns south, Hunting cuts under it between McCarty and Wallisville Roads. From there it continues east. It then turns southeast at San Pedro Street and eventually joins Buffalo Bayou and the Ship Channel.

Note width of floodplains in red box. HCFCD is now widening Hunting between the left and right boundaries of the box. From Harris County Flood Education Mapping Tool. Blue = 100-year. Green = 500-year floodplain.
Current HCFCD Projects along Hunting Bayou. Compare to pictures below.

Poor, Industrial, Flat, Flood Prone

The Hunting Bayou watershed has the second highest percentage of low-to-moderate income (LMI) residents in the county (69%) after Halls Bayou (71%) immediately to the north.

Hunting also is heavily industrialized with rail yards, tank farms, manufacturing, and shipping companies. The highest points of land are the railroad tracks. Within the red box above, you can see how they affect the flood plain.

After driving around the neighborhoods along Hunting Bayou for an entire day, it appears that the worst storm damage is in the red box above. Many homes are boarded up and abandoned in this area. Others have been elevated. Some have been renovated and are waiting for the next flood.

Current Construction Photos of Bayou Widening Efforts

HCFCD bayou-widening efforts focus on this area right now. They extend from US59 on the west to approximately Wayside Drive on the east. Bayou widening may be an understatement. HCFCD appears to be creating a long series of connected detention basins, some more than 450 feet wide and several city blocks long that narrow at bridges.

This should help drain water from nearby neighborhoods during heavy storms. See pictures below all taken on Sunday, 12/19/2021. They generally trend from west to east, starting at US59 and heading downstream.

Looking east at first of numerous ponds along channel of Hunting Bayou. Photographed from over US59. Loop 610 is in upper left.
Looking east over Hunting Street. Loop 610 on left. Note new hike and bike trails in this and other pictures below.
Looking east from Kashmere Street at a previously excavated area now covered with grass and newly excavated areas beyond it.
Looking east from over Wipprecht Street at work in progress.
Looking east toward Lockwood from Pickfair Street and one of the constrictions mentioned above.
Closer shot of constriction at Lockwood.
Looking east from Hutcheson Park
Opposite angle. Looking west over expanse of Hutcheson Park. Loop 610 on right.
Looking NE from the eastern end of Hutcheson Park, where Hunting cuts under 610.
Looking NE from over Loop 610 toward Homestead Detention Pond in background. Kelly Street cuts left to right through top of frame.s
Looking east from over Homestead at limit of current downstream work.

Funding Flows to Damage

Altogether, the current excavation work stretches 3.33 miles.

In the last five major storms (Allison, Tax Day, Memorial Day, Harvey, Imelda), 15,763 structures have flooded along Hunting Bayou. That ranks 7th among all Harris County Watersheds. But one must remember, that Hunting, comprises only 31 square miles. That ranks it 19th in size out of 23 watersheds. The damage per square mile ranked #2 (508.5 structures).

Another reason spending has accelerated here is political policy – namely the Equity Prioritization Framework implemented a year after the flood bond passed.

As with other watersheds, such as Halls, Greens, Brays and White Oak, it’s virtually impossible to grasp the scope of construction from the ground. That’s one reason why people in these watersheds complain they get no help from HCFCD when they are.

To learn more about this and other flood-mitigation projects in the Hunting Bayou watershed, visit this HCFCD page and click on the projects in the left hand column.

Posted by Bob Rehak on 12/19, 2021

1573 Days since Hurricane Harvey

How to Find and Verify Flood-Related Information: Part II

This is Part II in a series about how to find and verify flood-related information. Yesterday’s post focused on finding good information about flood vulnerabilities. This second part will focus on reviewing developers’ plans. The second can compound the first.

The very first sentence of the Texas Water Code § 11.086 begins with a warning not to flood your neighbors. It says, “No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.”

The second sentence declares that a person injured by diverted water may sue to recover damages. Of course, at that point the damage has already been done. Lawsuits are expensive and take years. And the defendant, usually a developer, will always point to plans prepared by a professional engineer and approved by a government body. Suing them will require expert witnesses. And the defendant will likely claim that you wouldn’t have flooded except for an Act of God.

Lawsuits are tall, expensive mountains to climb. So concerned residents near new developments are better off closely scrutinizing plans before they’re built and closely monitoring construction to ensure developers follow the plans.

You can’t stop development. But you can ensure developers play by the rules.

But how do you find and verify their plans?

Need to Find and Verify Info

If you notice a large piece of property for sale near you, monitor it closely. Check with the listing agent. Also check Houston’s Plat Tracker website. It’s updated before every meeting of the Planning Commission and shows items on their agenda. Houston also maintains a map-based website that shows projects in various stages of approval throughout the City and its extra-territorial jurisdiction.

Leap into action if you find a potential cause for concern near you. The next step is to obtain the development’s plans, the drainage impact analysis and soil tests. The developer must prove “no adverse impact” to people and properties downstream.

How you obtain those plans and studies depends on the development’s location. If inside a municipality, check with your city council representative. If you live outside a municipality, your best starting point will probably be your county engineer or precinct commissioner.

The plans are public information and must be provided in response to Freedom of Information Act (FOIA) Requests.

Signed, Stamped, Approved and So Obviously Wrong

In every case I reviewed during the last four years where someone flooded because of a new development, something jumped out of the plans that should have raised concerns for reviewers, but didn’t.

For instance, after Colony Ridge engineers apparently mischaracterized soil types, Plum Grove flooded repeatedly. The engineer said soils would let more water soak in than actually could. That meant the developer didn’t have to build as many detention ponds and could sell more lots. But it also contributed to flooding homes downstream.

Another example, the engineers for Woodridge Village claimed there were no floodplains on the property when there were. The property just hadn’t been surveyed yet.

In those cases, multiple other issues surfaced after close review. Wetlands that had been ignored. Substandard construction of detention ditches that led to severe erosion. Failure to implement stormwater quality controls. Failure to follow plans. Ignoring Atlas-14 requirements that led to undersizing detention ponds by 40%. And more.

In another development, I spotted safety issues related to river migration that had been ignored. Underground parking next to the floodway of the San Jacinto River. Failure to consider flood evacuation.

Concerned citizens must learn how to obtain and review such plans for potential problems or hire a consulting engineer.

Here are some things I’ve learned to look for.

Soil Tests

Are they accurate? Were the samples taken at representative points? Or did they conveniently ignore wetlands? Permeability of the soils will affect the amount of detention needed. The level of the water table could affect the amount of detention provided.

  • Highly permeable soils like sand have a high rate of infiltration and will let developers get away with less detention. Clay-based soils will require more. One engineer told me, “Soils like Colony Ridge reported don’t exist in the State of Texas.”
  • If plans call for a ten-foot deep detention pond, but the soil test encounters a shallower water table, that will compromise the pond’s capacity. Capacity should be calculated from the top of standing water, not the bottom of the pond. If the pond is already half full, that half shouldn’t count.

You can check the soils that a developer reports against the USDA national soil database.

Floodplain Issues

Floodplain maps in Harris County are currently being revised. That may not be the case in surrounding counties. The lack of updated flood maps endangers current residents, by letting developers build to old and ineffective standards.

Developers often try to beat the implementation of new requirements. This happened in the case of Woodridge Village. It’s also happening in the case of the Laurel Springs RV Park and Northpark South along Sorters-McClellan Road. The entrance to the Northpark development sits in a bowl. A quick check of the elevation profile on the USGS National Map confirmed that. During Harvey, local residents tell me that not even high-water rescue vehicles could get through that intersection. Put the Cajun Navy on standby now.

Wetland Issues

Filling wetlands requires an Army Corps permit for some, but not all wetlands. Whether they fall under the Corps’ jurisdiction depends on how far up in the branching structure of a watershed they are. Those near the main stem are jurisdictional. Three levels up may not be.

The US Fish and Wildlife service has thoroughly documented wetlands in this area. Check their National Wetlands Database and appeal to the Corps if you find a problem. At a minimum, the developer may be forced to buy mitigation credits somewhere nearby, which could help reduce flooding.

Drainage Issues

Is a new development’s detention pond capacity adequate? Is it based on the right percentage of impermeable cover? If the pond(s) fill up, where will the water go?

Calculating detention capacity requires math skills most people don’t have. But you can check the basis for the calculations. Are plans based on new Atlas-14 requirements? Are plans meeting current Houston and Harris County requirements?

Current City of Houston and Harris County Requirements for Detention Pond Capacity

In the case of the RV park, the developer will provide roughly half the current capacity requirement thanks to a grandfather clause in the regs. You can find construction guidelines for Houston, Harris County, MoCo and Liberty County on the Reports Page under the Construction tab.

Also see where they’re routing excess water in case of an overflow.

In the case of the Laurel Springs RV Park, the developer said they would route the water to a detention pond near Hamblen and Laurel Springs in anything greater than a two year rain. See below.

Screen Capture from Laurel Springs RV Resort Drainage Impact Report shows that in anything greater than a 2-year rain, overflow water will could threaten homes in Lakewood Cove.
RV Park Site Outlined in White. Overflow described above would presumably follow red path.
Laurel Springs RV Park as of 11/29/21. Detention pond will go in foreground, but overflow will go into pond at top of frame according to text above.

Missing Details from Drainage Impact Analysis

I have requested additional details three times from the City but still have not received them. I suspect they may not exist. All other plan requests have been filled.

So what happens when the Lakewood Cove detention pond fills up? Or gets covered up in a flood? Overflow from the RV park will contribute to flooding someone downstream.

The developer also said excess capacity would get to the Lakewood Cove pond by overland sheet flow. That could threaten homes on the southwest corner of Lakewood Cove – visible in the middle of shot above.

But a City engineer reviewing the plans said overflow would follow the railroad tracks on the western side of the RV park. Hmmmm. Two engineers – one who developed the plans and another who approved them – 180 degrees apart. What’s a concerned citizen to do?

If the engineers who develop and review such plans were always right, no one would ever flood. But we do. So always find and verify those plans.

To see the first part of this series, click here.

Posted by Bob Rehak on 11/29/2021

1553 Days since Hurricane Harvey

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

How to Speed Up Flood Mitigation Funding: Part II

Today marks the 1349th day since Hurricane Harvey. That’s also how long it took the United States to win World War II. To date, we’ve studied problems, made bold plans and, in a few cases, actually started constructing flood mitigation projects. But none of the $2.1 billion allocated for Texas flood mitigation by the US Department of Housing and Urban Development (HUD) has yet to work its way down to the local level.

The Townsen Overpass at US59 south of the San Jacinto West Fork during Harvey on 8/30/2017. Photo courtesy of Harris County Flood Control.

In the time it took us to win World War II, we’re still trying to line up flood mitigation financing.

Imagine What That HUD Money Could Have Done By Now

If Harris County Flood Control (HCFCD) had just half of that $2.1 billion, no one would be worrying about a funding shortfall for flood bond projects.

If HCFCD had just a quarter of that, it could more than triple the volume of flood mitigation projects currently under construction.

In April, HCFCD shows $209 million of capital improvement projects currently under construction.

The Texas General Land Office (GLO) administers HUD flood mitigation funds for Texas. However, it has yet to announce the results of a statewide grant application competition for the first half of that $2.1 billion. Hopefully, those announcements will come this month. The GLO intends to hold a second competition for the second half of the money at a later date.

In fairness, the GLO is simply following HUD’s lead. Yesterday, GLO Commissioner George P. Bush suggested many ways to speed up existing flood-mitigation processes.

Below are thoughts contributed by others. To encourage their candor, I promised them anonymity.

I. Consolidation Under One Agency

One federal official suggested that all flood mitigation funds should flow from the Federal Emergency Management Agency (FEMA), not HUD.

Rationale: Disaster relief is FEMA’s core competency. FEMA’s good at it. FEMA responds quickly. They are on location after disasters. They collect immense amounts of data, manage the National Flood Insurance Program, and have resources to get the job done quickly.

Right now, HUD, the slowest agency with the most rules and regulations, is responsible for helping the poorest neighborhoods, i.e., those that often need it most. Many think that’s unfair.

Dividing responsibilities among agencies creates needless bureaucracy, complexity, overlap and “stove piping.”

Stove-piping is where people in one bureaucracy are blind to activities in another. Eliminating the stove-piping requires cross checking data between agencies and programs, for instance to eliminate duplication of benefits. But that can also slow projects down.

II. Bring Back Earmarks in Some Cases

Another flood-mitigation expert suggested bringing back “earmarks” at the federal level. Earmarks were eliminated years ago to avoid spending on meritless projects in influential congressional districts.

Rationale: Not all earmarks are meritless. In cases of exceptional need, they can send money directly to cities or counties trying to build important flood mitigation projects. With proper safeguards against bogus earmarks, this idea could shave years off construction projects designed to protect people.

III. Partner with Army Corps More

Another expert suggested directing more money to the Army Corps for “project partnership agreements.” The Corps work directly with a local entity such as a city or county to help construct projects faster.

Rationale: The Corps was originally set up more than 200 years ago as a quick-reaction force for wartime. It now has the responsibility for managing the nation’s water infrastructure. The Corps has the turnkey expertise to gauge the merit of projects and the muscle to make things happen quickly.

HCFCD is currently working with HCFCD on projects in the Hunting, Brays, and White Oak Bayou Watersheds.

Previously, the Corps built the Antoine Stormwater Detention Basin in the Greens Bayou Watershed. HCFCD bought out the properties that comprised that basin and currently maintains the property.

IV. Establish a “Quick Reaction Fund”

A financial expert suggested establishing a “Quick Reaction Fund.” It would be activated by a Presidential Disaster Declaration and provide loans to get projects started quickly. The money could be used to jumpstart upfront activities, such as buyouts, environmental surveys and preliminary engineering reports. It could also be used to build entire projects that are needed quickly.

Rationale: Local entities often don’t have the money or staff to conduct these upfront activities. Buyouts can be especially problematic. They must often be completed before other flood mitigation activities, such as ditch improvements or detention ponds, can start.

“But we often have to wait 18 months or more for approval of buyouts,” said one engineer. “The vast majority of people can’t wait that long.”

So they fix up their homes and become more committed to them. Or they may just leave the area. Either way, this slows flood mitigation down even more.

A Forest Cove townhome just beyond the new Houston Parks Board San Jacinto Greenway. Harvey made the entire 80-townhome complex uninhabitable. Many residents left the area because they got tired of waiting for buyouts that are still not complete. That makes buyouts even more time consuming. Photo taken May 3, 2021.

The Quick Reaction Fund could help complete buyouts in months – instead of years – after a flood.

Loans could be paid back later by grant awards from the Feds.

V. Pass a Hazard Tax

To bypass the delays and uncertainties of competitive grant funding through state and federal levels, one local entity suggested passing a “hazard tax.”

Rationale: This would put local entities in charge of their own destinies rather than making them dependent on Washington and Austin for handouts. It would let cities and counties build up a war chest from their own tax revenues. Think of it as a savings account with a dedicated purpose – disaster mitigation. The money could be used to fund projects directly and quickly, or as the basis for matching funds when projects are less time critical.

Need Public Dialog

The rationale FOR the current system of competitive grant funding is to ensure the fairest possible distribution of available funds. But that requires defining and agreeing to eligibility rules upfront. It also requires upfront research, engineering, cost estimating and evaluation to prevent waste and fraud. All of that can take years. Hell, we’re still debating solutions to another Hurricane Ike (2008).

In my opinion, we desperately need a way to resolve such issues faster. I hope this series of articles will start a public dialogue among political leaders at all levels.

Posted by Bob Rehak on 5/9/2021

1349 Days after Hurricane Harvey, the number of days in WWII

Is There a Shortfall in Harris County Flood Bond Money? Yes. No. Maybe. It Depends.

The 3/9/2021 meeting of Harris County Commissioners Court started with a presentation by the Harris County Budget Management Director David Berry on the County’s Capital Improvement Plan. Mr. Berry asserted early in the meeting that the County had a shortfall of approximately $900 million to $1.35 billion needed to complete projects in the Flood Bond passed by voters in 2018. Is there really a shortfall? It depends on the exact way you phrase any number of possible questions.

Confusing, Unexplained Map Triggers Almost 2 Hours of Discussion

Near the start of the meeting, Mr. Berry put up a very confusing map (below) that frequently heated the next 100 minutes of discussion to the boiling point. The discussion made every front page in town and many of the TV news shows.

  • The map showed the projected funding shortfalls by watershed as a percentage of the total funding allocated to each in the 2018 flood bond.
  • The stories featured sensational quotes by Precinct One Commissioner Rodney Ellis (We will have blood on our hands if this stands.) and Precinct 2 Commissioner Garcia (I feel like someone hit me across the back with a baseball bat.)

The map implied that construction had started on projects that the County did not have enough money to finish, especially the ones in yellow and red below.

Map from Page 16 of Harris County CIP Budget for Fiscal Year 2021/2022.

Was Flood Control Not Following Equity Guidelines?

To add more context to this discussion, understand that Halls and Greens Bayous rank among the poorest in the county. That they seemed so far behind more affluent watersheds in funding rankled Ellis and Garcia. The two had argued to prioritize flood bond spending by a “social equity” formula that addressed the poorest neighborhoods first. To say that the map above was like waving a red flag in front of two bulls would understate its effect.

So What’s Really Going on Here?

Did prices of flood-bond projects suddenly escalate, causing the shortfall? No.

Did Flood Control underestimate costs? No.

The reason has to do with the delayed arrival of long-awaited federal matching funds.

But Berry did not make that apparent in his setup. Commissioners Garcia and Ellis then peppered Russ Poppe, head of the Flood Control District, with angry, accusatory questions for more than 40 minutes. At one point, they asked 11 questions in a row before they gave Poppe a chance to answer one.

Poppe then explained that Flood Control relies on matching funds from the U.S. Department of Housing and Urban Development (HUD) for low-income areas. Why? Unlike FEMA which requires a positive benefit/cost ratio, HUD does not. Flood Control is currently waiting for answers on HUD grant applications totaling almost half a billion dollars for mitigation work in the Halls and Greens Bayou watersheds.

Commissioners Court then spent another 40 minutes trying to understand the chances of getting those grants. They also crafted a motion directing the Flood Control District to develop a backup plan in case grant money didn’t arrive by June 30.

Text Of Motion

The motion reads as follows: “To direct the Flood Control District to work with Budget Management in developing a plan by June 30, 2021 to address the funding gap in flood mitigation projects under the 2018 bond while maintaining an equitable approach to the expenditure of funds, including plans to lobby federal, state, and local partners for funding, identification of alternative funding options, a description of projects that are currently stalled due to incomplete funding and how that affects timing of project completion, and a potential timeline for a future potential bond election regarding the funding of current and future flood control projects. If the County is unable to secure funding to complete all proposed projects, the plan should address how the County should prioritize the investment of existing resources to ensure equitable flood protection and comply with the prioritization framework adopted by Harris County.”

The motion eventually passed unanimously at 1 hour and 32 minutes into the meeting.

Answers to Questions About “Underfunding”

Is construction money in Halls or Greens Bayous invested so far at risk?

No. Money spent so far, according to Poppe, has only been for land acquisition and preliminary engineering studies. The County will need both regardless of how it pays for construction. So the County didn’t waste a penny of flood-bond money invested to date. Construction can start later when a path to funding becomes clear.

Did Flood Control try to hide a shortfall?

No.  The partial reliance on partner funding now characterized as a “shortfall” was shown in the Bond Program from Day One. The projected shortfall was never greater than on the day voters approved the flood bond. At that point we had secured no partnership funding for those watersheds or any others. We still haven’t for Halls and Greens.

Have we found partnership funding faster in other watersheds?

Yes. Especially in watersheds where the U.S. Army Corps of Engineers plays a leadership role in construction or where partners could demonstrate a positive benefit/cost ratio for FEMA. In 2018, Poppe estimated Harris County Flood Control could find $2.3 to $2.4 billion in matching funds based on $872 million allocated for seed money in the Flood Bond. But Berry estimates the budget shortfall at $900 million to $1.35 billion. Subtracting one estimate from the other indicates Flood Control has already found a billion dollars or more in matching funds for other watersheds. That’s great work. And that accounts for the differences in colors on the map.

Can Harris County count on the HUD money?

No. The Texas General Land Office (GLO) is still reviewing Flood Control’s grant applications to HUD. We could get some, all, or none of the requested grants.

When will we know how much HUD money, if any, we get?

Initial indications were that we would get answers by late April or early May. Today, I learned from an independent source who requested anonymity that the answer may not come until October.

If the money doesn’t come from HUD, where will it come from?

It depends. Commissioners floated several ideas in the meeting. They included self-funding with another Flood Bond and shifting money from existing sources within Harris County, such as the Toll Road Authority. They could have mentioned Texas Senate Bill 7 (from 2019), but didn’t. Among other things, SB7 provided partial reimbursement for local matching funds for federal grants. The motion approved by Commissioners Court today requires Flood Control and the Budget office to explore all the possibilities and lay out options for consideration.

Another flood bond? Seriously?

Yes and no. According to former Judge Ed Emmett, the $2.5 billion approved by voters in 2018 was always pitched as a “down payment.” Even with partnership funding potentially doubling the size of that, it still would not be likely to solve all of Harris County’s flood woes. So what’s the real total? During the meeting, the Judge and Commissioners tossed out figures ranging from $10-$40 billion. But no one believes another bond is politically feasible. Especially at this time. First, COVID has siphoned off valuable funds. And some of the commissioners have seen fit to redefine equity in the bond language in a way that benefits their constituents at the expense of all others. Now, they may not be able to deliver for their constituents. And they’ve managed to honk off everyone else. Everyone believes the likelihood of passing another bond is zero at this point.

Why is HUD taking so long?

It depends (on whom you talk to). Reportedly, the GLO and HUD have had concerns about the City of Houston and Harris County administering flood-disaster-relief funds to homeowners (separate from mitigation money for flood control projects). Even though Harris County Flood Control wasn’t involved in that program, HUD decided to have the Texas General Land Office (GLO) administer/oversee a giant pot of mitigation money for the entire state instead of sending a portion of it directly to Harris County. That created an extra step. And Harris County must compete with the rest of the state, a process that has inevitably delayed announcements.

Is it worth waiting for a half billion dollars?

Again, it depends. On whom you ask. If your home is flooding and you can get someone else to foot the bill, hell no. If your home is not flooding and there’s still a chance that HUD could come through, why hurry?

Partnership funding maximizes the amount of projects Flood Control can develop, but it can also delay some projects. This is a glass-half-full debate.

Shouldn’t we be captains of our own fate?

It depends on when you ask. When the flood bond passed in 2018, Flood Control was applauded for aggressively chasing all of the Federal funding it could. Yet during Tuesday’s Court meeting, some commissioners criticized Flood Control for going after any partner funds – a complete 180 from just two and a half years ago. 

Will funding shortfalls discussed above affect additional gates for the Lake Houston Dam?

No. At least not if the City can prove up its initial benefit/cost ratio. FEMA has already provisionally allocated funds for gate construction.

For More Information

See these links to:

The entire 358-page Capital Improvement Plan

Video of the Commissioners Court Meeting. Click on Departments (Part 1 of 4) and start about 7:36 in.

The final Prioritization Framework for the Flood Bond projects according to “social equity” criteria.

Posted by Bob Rehak on 3/10/2021

1289 Days since Hurricane Harvey

Army Corps Proposes Solutions for Buffalo Bayou Flooding; One Could Affect Lake Houston Area

The Army Corps has released its Buffalo Bayou and Tributaries Resiliency Study (BBTRS). This is a major, 210-page study of options to reduce flooding on the west side of Houston. One of the main options considered also affects the Lake Houston area on the north side: a dam on Cypress Creek. But it comes at a high environmental cost.

Preventing Water From Overflowing Out of Cypress Creek Watershed

You may remember during Harvey that floodwater spilled out of the upper Cypress Creek watershed and bridged over to the Addicks reservoir. From there, it added to flooding on the west side. So one of the alternatives that the Corps examined was a third reservoir on Cypress Creek. This reservoir would be built on the far west side, north of Addicks. It would benefit not only the entire Cypress Creek area, but areas downstream as well. Cypress Creek drains into Spring Creek and eventually the West Fork and Lake Houston.

Cypress Creek Dam and Reservoir (Alternative #2 in the study) would construct a new 190,000-acre foot reservoir upstream of Addicks in the Cypress watershed. One overflow spillway discharges into Cypress Creek, while a second discharges into the Addicks Watershed. The primary control structure would release into Cypress Creek. First costs for the Cypress Creek Dam are estimated at $2.14 billion to $2.90 billion. Ancillary measures bring the total cost to $4.5 to $6.1 billion.

Interim Mid-Point Report

The Corps’ report does not present final conclusions and recommendations. The report is a mid-point technical document for review prior to recommending a solution.

Loosely Structured Data Dump

As you might expect, this interim report is loosely structured and somewhat hard to follow. Possible reasons: more than 40 people wrote it and five different teams reviewed it. It does not include recommendations, that might provide structure or logic to the organization. Also, it examines many alternatives, both alone and in combination that make it somewhat difficult to follow. They put everything they considered in the document for public review and comment (see below).

Alternatives Examined

Alternatives that the Corps examined include:

  • Cypress Creek Dam
  • Upper Buffalo Bayou Dam, Ungated
  • Extending Additional Spillways within Barker and Addicks Reservoirs to increase storage
  • Raising Embankments of Addicks and Barker reservoirs to increase storage
  • Excavating Barker and Addicks reservoirs to increase storage
  • Constructing tunnels from 33 to 43 feet wide between Barker and the Ship Channel to increase conveyance
  • Constructing tunnels between 31 and 41 feet wide from the Barker to the Brazos
  • Diverting water from Barker to Brays Bayou
  • Widening 22 miles of Buffalo Bayou

The Corps also considered but discarded several other measures, including but not limited to:

  • Pumping Stations – were neither feasible, nor cost effective.
  • Injection wells – would not reduce flood risk.
  • Restoration and preservation of coastal prairies and wetlands – Restoration of one acre of prairie would offset the impact of two acres of single-family land use or an acre of commercial development. However, the land needed was outside of the authorized study area.

Criteria Used to Evaluate Structural Alternatives

The criteria used to evaluate the structural alternatives above included:

  • Rough order-of-magnitude costs (high, medium or low)
  • Potential for system-wide impacts (best professional judgment based on engineering, H&H)
  • Potential impacts to critical infrastructure (number of critical facilities that may be protected along with the number of roads that may be saved from impact)
  • Required mitigation (defined as the potential number of acres that may be required and categorized and from high to low)
  • Potential impacts to threatened and endangered species (defined as yes or no)
  • Impacts to populations (defined as yes or no)

The tables below show how they assessed each alternative on these measures.

Relative Merits of Leading Alternatives

The rest of the report tries to quantify the pros and cons of each of the flood-reduction plans (including combinations of individual measures). The table below summaries the relative merits of leading alternatives.

Safety and Cost Considerations

Because dams and dam modifications weigh heavily this this report, the Corps also included a lengthy discussion of dam safety measures.

However, the rest of the reports focuses on economic and environmental consequences of the proposed alternatives.

The economic consequences include homes or businesses that might have to be bought out and relocated, development that might be encouraged or excluded, the cost of repeat flooding, etc.

Being precise enough to rank order each alternative at this point in the analysis is difficult. However, the Corps does present enough information to help the reader understand the economic consequences of alternative plans.

Environmental Consequences of Cypress Creek Dam

To simplify the rest of this post, I will focus only on the Corps’ environmental concerns about the Cypress Creek Dam.

The Corps frets about implementing any proposed measures within Katy Prairie habitat. They point out, “The Katy Prairie is the last remaining coastal prairie in Harris County and less than 1 percent remains throughout the state. The Cypress Creek Reservoir would have enveloped and impacted nearly all of the known quality Katy Prairie habitat remaining.”

In regard to other environmental consequences of a Cypress Creek Reservoir, the Corps says:

“The Cypress Creek Reservoir would be most likely to induce development, particularly in areas where Cypress Creek overflows currently affect lands.
While the Katy Prairie is not formally defined as a park or wildlife refuge, it has been identified by natural resource agencies (US Fish and Wildlife Service and Texas Parks and Wildlife) and conservation groups (Katy Prairie Conservancy, Legacy Land Trust, and Sierra Club) as an area of special cultural and ecological significance. … It is estimated that less than 20,000 acres of Katy Prairie remain in Harris and Waller counties.”

Would Affect 75% of Remaining Katy Prairie

“Implementation of the Cypress Creek Reservoir would significantly alter and degrade more than 75 percent of the remaining range-wide Katy Prairie habitat and a significant portion of the actively managed and preserved remaining habitat. Approximately 90 percent (about 10,400 acres) of the project area is operating under Habitat Conservation Plans, including mitigation banks, in which funding has been provided to maintain and enhance Katy Prairie, stream, riparian, and wetland habitats in perpetuity.

“Construction and operation of the reservoir would prevent future development; however, the primary purpose of the project would be for flood risk management and not habitat conservation. Long-term operation of the project would change the hydrology of the area and make it very difficult to manage the land for conservation of the specific habitats and species.”

Impact on Conservation Easements

The Corps continues, “While it is not anticipated that the habitats would be completely lost, it is very likely that they would have lower habitat quality than under the existing condition or No Action Alternative. Additionally, construction and operation of the dam would violate a number of the conservation easements. Mitigation for the mitigation banks would be needed to ensure paid for credits are appropriately accounted.

“These impacts would also apply to approximately an additional 6,000 acres of Katy Prairie conservation lands that are immediately downstream of the embankment, where the embankment would sever hydrologic connections thereby affecting hydrologic regimes, sediment and nutrient inputs and fragmenting habitats. These indirect impacts would also cause the lands to underperform in expected habitat quality for conservation and could result in conflicts with the conservation easements and mitigation banks.”

Next Steps

It sounds as though the Corps initially wanted to discard the idea of a Cypress Creek Dam. However, it’s still on the table.

The Corps intends to review this document with cooperating agencies, such as Harris County Flood Control. It will also hold a series of public meetings via video conference.

  • Tuesday, October 13       6:00 – 8:00 PM
  • Thursday, October 15     6:00 – 8:00 PM
  • Thursday, October 22     6:00 – 8:00 PM
  • Monday, October 26       1:00 – 3:00 PM

You are invited to join any of these sessions to learn about the project and submit questions for future responses on the project website.

In the video meetings, the project team will summarize the project goals, the process and progress to date. This information may help inform any comments that you can provide during the comment period.

Presentation material will be posted on the Corps’ website.

For the full Interim report, click here. Warning: 210-page, 8-meg download.

Written Feedback Requested

Written comments make your voice heard. Public comments can strengthen a decision by providing facts or perspectives that could be lacking in the original document. Your feedback helps create an accurate and comprehensive document that supports informed decision-making. You can comment via letter or email.

By postal mail, postmarked by November 2, 2020, to:

  • USACE Galveston District
  • ATTN:  BBTRS
  • P.O. Box 1229
  • Galveston, Texas 77553-1229

By email to: 

BBTRS@usace.army.mil

Posted by Bob Rehak on 10/3/2020

1131 Days after Hurricane Harvey

Army Corps Finds Wetlands on Perry Homes Woodridge Village Property Did Not Fall Under Corps’ Jurisdiction; What Next?

Today, the U.S. Army Corps of Engineers released the findings of its investigation into the wetlands on Perry Homes’ Woodridge Village property. The Corps said that the wetlands do NOT fall under its jurisdiction. Therefore, there was no violation of Section 404 of the Clean Water Act when Perry wiped out wetlands without first seeking the Corps’ permission.

Congressman Dan Crenshaw’s office released this text of an email the Corps sent to them today.

Text of Corps Email to Congressman Crenshaw

“This e-mail is in response to your request (on the behalf of Congressman Crenshaw) to be updated on our investigation into activities on the Figure Four properties located in Porter, Montgomery County, Texas.  (Investigation file SWG-2019-00745).” [Editor’s note: Figure Four is the development arm of Perry Homes.]

“As discussed on the phone earlier today, the Corps of Engineers has finalized our investigation into this matter and did NOT find a violation of Section 404 of the Clean Water Act (Section 404).”  

“We did confirm the presence of uplands and wetlands on the tract. Some of the wetlands had fill material placed into them. Based on the facts associated with this specific location and per federal regulation these wetlands were determined to “isolated.” They lacked any known nexus to interstate commerce. As such, they are not “waters of the United States” and are not subject to federal jurisdiction under Section 404. In accordance with federal regulation the jurisdictional status (determination) of these wetlands was coordinated with the Environmental Protection Agency prior to finalizing.”     

“The property owner has been notified of the federal government’s findings and the investigation closed.”

Wetlands Question Now Moot from Legal Point of View

Normally, in cases where a question exists, developers consult the Corps before destroying the wetlands. When I asked the Corps last August whether Perry had sought a “jurisdictional determination,” the Corps answered that Perry had not.

Perry later claimed that it had hired a private consultant to determine whether the wetlands were jurisdictional. However, to my knowledge, Perry never publicly released the results of the survey. Today’s ruling by the Corps makes that whole controversy moot.

Regardless of the Corps’ rulings on the jurisdictional question, the fact remains that the Corps found wetlands on the property and they found Perry Homes had attempted to fill them in.

Wetlands Question Still Explosive from Business Point of View

Let’s see how well that worked out for Perry and its subsidiaries.

If Perry Homes tries to build on the land after all the publicity surrounding this case, any homeowner whose foundation cracks would have a ready-made court case.

Woodridge Village “wetlands” on March 6, 2020. Water has ponded there for months.

This land appears to be unsafe, unstable, unbuildable, unsaleable, and a menace to downstream homeowners in its current state.

Plaintiff’s Engineer Points to High Hurdles for Perry to Clear

David Givler, PE, a consultant for plaintiffs in the Elm Grove flooding case found that LJA Engineering, a Perry Homes’ contractor:

  • Seriously underestimated the amount of runoff from this property.
  • Used outdated rainfall statistics that led to underestimating the amount of detention capacity needed.
  • Constructed the overflow spillway between Taylor Gulley and detention pond S2 at a height that would cause North Kingwood Forest to flood.

When You’re In a Hole, Stop Digging. Literally.

It may be possible to fix some of these problems. But at what cost? Will the development ultimately be economic when residential lots are used to increase the size of detention ponds?

Five developers previously bought this land, studied it, and sold it rather than develop it. Maybe Perry should do the same. Maybe they should transfer it to Harris County Flood Control to create a giant detention facility.

How Perry Could Exit Without a Loss, Mitigate Flooding, Limit Long-Term Liability

A Houston Chronicle article quotes Houston Mayor Pro Tem Dave Martin as saying that Perry quoted a price for the land that covered their acquisition cost PLUS the labor they have into it. That led Harris County to ask CoH to share the cost.

When CoH refused, Perry dropped the price to $14 million (the alleged purchase price) from $23 million, according to Community Impact newspaper. The Montgomery County Appraisal District values the land at only a little more than $1 million.

It will be very hard for Perry to sell the land and even harder to develop it. So why doesn’t Perry just donate the land to Harris County Flood Control to help them mitigate flooding?

According to a national real estate tax expert that I talked to, Perry could then write off the value of the land PLUS the value of the labor they have in it. For a billion dollar company, the tax deduction could easily EQUAL or come close to the price they are currently asking for the land.

It would also:

  • Give Perry a chance to recoup some shred of its once proud image.
  • Let Harris County Flood Control move forward quickly with a detention project that could truly mitigate flooding.
  • Help protect Perry from additional future flooding claims.

Posted by Bob Rehak on 5/10/2020

924 Days since Hurricane Harvey and 173 since Imelda

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

San Jacinto West Fork Before-After Photos Show Dramatic Conveyance Improvements from Dredging

After a year of dredging, the Army Corps and its contractors are gone. Even though they didn’t get all of the West Fork Mouth Bar, they made dramatic conveyance improvements on the West Fork as these before/after photos show.

Sand Island Before Dredging

The first was a blockage that dredging contractors nicknamed “Sand Island.” It sat in the middle of the river just downstream from River Grove Park in Kingwood. According to the Corps, it blocked 90% of the river.

Sand Island formed during Hurricane Harvey. Boats that drew 18 inches of water could not navigate upstream past this giant sandbar. Photo taken 9/14/2019.

Sand Island After Dredging

Sand Island is now Gone Island. Photo taken 12/3/2019.

The Corps removed approximately 15 feet of sand over a 15 acre area that was 566.7 feet wide at its widest point. An acre is about the size of a football field. So this would be like stacking sand on a football field 225 feet high (15×15)! And that doesn’t even include the sand they removed from the channels on either side of the island in the background.

Sand Island Dredging Profile.

Diversion Ditch Bar Before Dredging

A second huge sand bar deposited by Harvey blocked the Kingwood Diversion Ditch, also at River Grove Park. The Diversion Ditch empties the western third of Kingwood. Approximately 600 homes flooded above this one blockage. They were in Barrington, Kingwood Cove, Trailwood, Kingwood Lakes and Kings Forest.

Diversion Ditch (center left) was virtually closed off by a new sandbar deposited by Harvey. Photo taken 9/14/2017.

Army Corps measurements show that at its highest point this bar measured 10 feet about the water surface. It forced water coming out of the ditch to make a 90 degree left turn where it then hit another downstream blockage.

Diversion Ditch Bar After Dredging

Photo taken 10/2/2019 after dredging opened up the channel and reduced the downstream bar.
Photo of same area taken on 11/4/2019, but looking upstream.

The Corps dredged a channel 150 feet wide through this bar to a depth of 35 feet above sea level. That’s about 7.5 feet below the normal water surface elevation of the Lake. The channel narrowed to 50 feet wide where it meets the mouth of the ditch.

From the highest point on the bar to the target depth, the Corps removed 17.5 vertical feet of sand. From the mouth of the channel to the outer edge of the bar measured 750 feet.

Comparison in Satellite Images from Google Earth

Here’s how this section of the river looked from a satellite BEFORE dredging. The numbers refer to the discussions above.

Here’s how it looked AFTER. (Note this image was taken on 2/23/19 and the dredge was still removing sand island.

Altogether, the Corps removed approximately 2.3 million cubic yards of sediment. Even if the Corps didn’t finish the mouth bar, that’s a lot to be grateful for. Thank you, FEMA, Army Corps, Great Lakes Dredge and Dock and Callan Marine.

Have a merry Christmas!

Posted by Bob Rehak on 12/24/2019

847 Days after Hurricane Harvey

Possible Penalties for Wetlands Violations

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

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

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

Corps and EPA Share Responsibility for Enforcement

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

Goals of Enforcement Program

EPA’s Section 404 enforcement program has three goals:

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

Factors Considered in Initiating an Enforcement Action

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

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

Largest Criminal Action in EPA History

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

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

Factors Considered in Assessing Fines

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

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

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

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

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

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

Formula Used in Assessing Fines

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

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

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

Economic Benefit Component Explained

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

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

Gravity Component Explained

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

Other Considerations

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

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

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

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

Classes of Penalties

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

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

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

EPA may also seek:

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

Criminal Vs. Civil

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

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

For More Information and Exact Text

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

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

Posted by Bob Rehak on 11/18/2019

811 Days since Hurricane Harvey

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

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

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

No Record of Request for Jurisdictional Determination

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

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

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

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

Elm Grove Director Requests Investigation

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

Corps Seeking Access to Property

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

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

Presence and Importance of Wetlands

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

From the USGS National Wetlands Inventory

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

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

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

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

Posted by Bob Rehak on 11/16/2019

809 Days since Hurricane Harvey and 58 since Imelda

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