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Approximately 1,000 Plaintiffs File Suit Against Sand Mines in Harvey Flooding

On February 20th of this year, approximately 1,000 plaintiffs filed a 118-page lawsuit against 55 sand mining companies in the San Jacinto River Basin. Plaintiffs allege that the miners harmed them by decreasing the capacity and depth of Lake Houston and its tributaries by wrongfully discharging and negligently allowing the release of materials into waterways. That reduction of capacity, they say, contributed to flooding their homes and businesses.

Western half of LMI River Road mine in floodway and flood plain of San Jacinto West Fork. Note also in foreground how the mine undermined five pipelines carrying highly volatile liquids.

Background

To support their claims (¶613), plaintiffs cite violations of Texas Commission on Environmental Quality (TCEQ) regulations and the U.S. Clean Water Act. They claim:

  • Excessive, unauthorized discharge of silt into waterways
  • Failure to:
    • Obtain stormwater discharge permits
    • Prevent unauthorized discharges
    • Minimize generation of dust and off-site tracking

Past and Present Activities Cited

Some defendants, they say, operated above permit limits and others operated without any permits at all (¶614).

Plaintiffs say (¶615) that defendants have operated immediately adjacent to various waterways and in the flood plain, clearcutting all vegetation, and digging pits within feet of the riverbanks. Thus, there are no real barriers between mines and the rivers, they claim. Further, they allege that defendants have no plans in place for protection and preservation of their pits and loose sand during flood events, which occur frequently.

Then Came Harvey

Hurricane Harvey, they say, inundated mines and “thousands of acres of sand washed downstream, clogging the rivers and lakes, resulting in flood waters moving outside the banks and outside the flood plain, causing hundreds of millions of dollars in damages.”

Washed out road INSIDE sand mine during Harvey.
Submerged sand mines in the floodway of the San Jacinto West Fork during Hurricane Harvey in 2017

Alleged Violations of Water Code

The defendants had a duty to implement procedures to reduce the discharge of sediment into waterways, but did not, according to the plaintiffs. Thus, the proximate cause of plaintiffs’ injuries involved negligence and negligence per se. Defendants allegedly breached their duties under sections 11.086, 26.039, and 26.121 of the Texas Water Code, thus causing flooding and damage to plaintiffs’ property.

To prove negligence, personal injury plaintiffs must show that the defendants’ conduct fell below the applicable standard of care and that their actions were the actual and proximate cause of harm. 

In cases of negligence per se, defendants’ actions are assumed to be unreasonable if the conduct violates an applicable rule, regulation, or statute. That’s why lawyers cite the Texas Water Code, plus TCEQ and EPA regulations.

  • 11.086 of the Texas Water Code provides that no person impound the natural flow of surface waters, or permit impounding to continue, in a manner that damages property of another by the overflow of the water diverted or impounded.
  • 26.039 specifies that mine operators must notify the TCEQ of accidental discharges or spills that cause or may cause pollution as soon as possible.
  • 26.121 prohibits discharge of pollutants. Both the EPA and TCEQ consider sediment a pollutant.

Specific Omissions

Specific omissions, say the plaintiffs, include failing to:

  • Locate sand mines outside of floodways
  • Increase the width of dikes
  • Decrease the slope of dikes
  • Control erosion with vegetation
  • Replant areas not actively being mined
  • Protect stockpiles from flooding
  • Mine only above the deepest part of the river
Flooding from Hurricane Harvey in Kingwood’s Town Center where 100% of businesses were disrupted, most for approximately a year. Some still have not reopened. Photo by John Knoezer.

Nuisance Claim

The plaintiffs also allege nuisance. Under Texas law, nuisance refers to a type of legal injustice involving interference with the use and enjoyment of property. Specifically, plaintiffs say that the defendants’ negligent conduct caused paintiffs’ flooding, thus depriving them of the use of their homes.

Complaint against Forestar by Barrington Residents

On page 108, a subset of plaintiffs (those who live in the Barrington), lodge a complaint against Forestar (USA) Real Estate Group Inc. They allege that Forestar developed, marketed and sold homes in the subdivision without any standards for determining the elevation of a house relative to flood risk.

The Long Ride to Safety During Harvey. Barrington Photo by Julie Yandell.
The Long Ride to Safety During Harvey. Barrington Photo by Julie Yandell.

“Despite having actual knowledge of the possibility of flooding in the Barrington Subdivision, Forestar did not advise homebuyers to purchase flood insurance,” says the complaint (¶640). “Nor did Forestar advise the residents of the Barrington Subdivision of its location on a floodplain, or that their elevations were changed due to lots being filled with dirt” when residents purchased homes.

Nevertheless, the complaint continues (¶643), homes were built at an “unreasonably low” elevation, given their location near the West Fork San Jacinto. “Forestar knew, or should have known, that houses needed to be built at an elevation adequate to prevent and/or reduce the likelihood of flooding.”

Clean out after Harvey in the Barrington. By Joy Dominique.
Clean out after Harvey in the Barrington. By Joy Dominique.

Damages Alleged

Plaintiffs allege damages that include:

  • Cost of repairs to real property
  • Cost of replacing personal property
  • Lost of use of real and personal property
  • Diminution of market value
  • Loss of income, business income, profits and business equipment
  • Loss of good will and reputation
  • Consequential costs, such as loss of time from work and alternate living expenses
  • Mental anguish
  • Pre- and post-judgement interest
  • Court costs

Conscious Indifference and Gross Negligence

¶658 asserts that the conduct of all defendants (sand mines and Forestar) qualifies as gross negligence under Texas law. The plaintiffs say that the defendants acts of omission involved an extreme degree of risk, considering the probability and magnitude of harm to others. Plus, “Defendants had actual subjective awareness of the risk involved in the above described acts or omissions, but nevertheless proceeded with conscious indifference to the rights, safety and welfare of plaintiffs and others.”

Where Case Stands

129th District Court Judge Michael Gomez signed a docket control order on 2/28/2020 that calls for:

  • All parties in the suit to be added and served with notice by 8/19/2020
  • Close of pleadings and start of mediation on 12/16/2020
  • End of discovery on 1/15/2021
  • All motions and pleas heard by 1/15/2021
  • Trial, if necessary, on 2/15/2021

To date, there have been several motions to transfer venue, dismiss the case, and change the judge.

Only Triple PG Sand Development, LLC has filed an answer to the plaintiffs’ claims; the company filed a general denial.

In a separate case, the Attorney General of Texas is suing Triple PG for failing to prevent and repair breaches in dikes that resulted in repeated unauthorized discharges of process wastewater and sediment into Caney Creek. Caney Creek joins the East Fork San Jacinto just downstream from Triple PG. Triple PG currently operates under an injunction that bars it from dredging.

Breach of Triple PG mine into Caney Creek and the headwaters of Lake Houston

Editorial Opinion

If successful, this case may force sand mines to operate more responsibly, now and in the future. For instance, it might force them to move farther back from rivers and out of floodways. Having taken thousands of photos of leaking sand mines from the air since Harvey, in my opinion, that might benefit everyone, not just the plaintiffs.

Giant sand bar at the mouth of the West Fork which backed water up through much of Kingwood, Atascocita and Humble.
Mouth bar on the East Fork San Jacinto grew by thousands of feet during Harvey and Imelda. Downstream from Triple PG and Texas Concrete Mines.

To read the entire lawsuit, click here.

Posted by Bob Rehak on August 2, 2020

1069 Days after Hurricane Harvey

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

Childhood Terror From Harvey: Ulrich Family’s Experience and Letter to SJRA Board

Colleen Ulrich gave me permission to share her family’s Hurricane Harvey experience. She captured the terror in this letter to the San Jacinto River Authority Board. It supports the continued seasonal lowering of Lake Conroe to provide a buffer against flooding until other mitigation measures can be put in place. Her home did not flood UNTIL AFTER the Lake Conroe release.

Full Text of Ulrich Letter

Dear SJRA Board Members,

The purpose of my email is to petition all SRJA Board Members to approve the temporary, seasonal lowering of Lake Conroe for 2020.
As an introduction, I have been a resident of Kingwood since August 2005 when I evacuated from New Orleans due to Hurricane Katrina. We never moved back because our family fell in love with our adopted state of Texas and our adopted home town of Kingwood. I live in the Barrington neighborhood with my husband and 10-year-old daughter. Our home was flooded with 2 feet 2 inches of water in August 2017. 

Colleen Ulrich’s vehicle during Hurricane Harvey after Lake Conroe release. This photo and those below courtesy of Colleen Ulrich. All used with permission.

 Childhood Memories

One of the issues that those opposed to the temporary, seasonal lowering of Lake Conroe is that they feel deprived of their ability to enjoy the lake and to create fun summer time boating memories for their families and children. As a mother and Kingwood resident, I am petitioning you to vote in favor of the temporary, seasonal lowering of Lake Conroe to ensure the safety of my child and all of the children of Kingwood and to ensure none of the Kingwood area children have any memories similar to the ones that were created from the flood in August 2017. 

Colleen Ulrich’s dining room during Hurricane Harvey after the SJRA opened the flood gates on Lake Conroe.

Our daughter, Alexandra, was 7 1/2 at the time and her memories include sitting on our stairwell alone in our home while my husband carried me on his back to be evacuated by boat because the quickly rising water was too high and the current too strong for me to walk by myself. Alexandra’s memories include riding in that same boat out of our neighborhood and seeing the houses with up to 4 feet of water in them. Alexandra’s memories include having her childhood bedroom destroyed by floodwaters.

I promise you that these memories will never fade for her.

The Ulrich living room after the Lake Conroe release during Harvey.

Fun Vs. Safety

So I petition to the Board, what is more important – creating fleeting childhood memories of a boat ride in the summer on Lake Conroe or averting traumatic childhood memories of a flood? 

What is more important – the perceived Lake Conroe falling property values or the safety of our children and residents?

Heirlooms underwater.

I am in agreement that the lowering of Lake Conroe and Lake Houston are both temporary solutions. And of course these temporary solutions should be revisited once all of the other permanent measures including the installation of additional gates in Lake Houston are put in place. But until that time, I pray that you will make the right decision and keep the temporary, seasonal lowering in place until permanent measures can ensure the safety of all the children and of all the residents of Kingwood and the surrounding areas.  

Ulrich kitchen, cabinets and appliances destroyed.
The piano that’s not so grand since Harvey.

Video of Evac

For your consideration, my husband recorded this video and posted it on YouTube so we can remind others of the trauma of that day.  This was his boat ride out of Barrington.

I appreciate your service to our community and your consideration of my appeal to approve the lowering of Lake Conroe.

Regards,

Colleen Ulrich

Address and Phone Number Withheld for Purposes of This Post


Tell the SJRA Board about your Harvey experience and why you would like to see them continue lowering Lake Conroe seasonally until other flood mitigation measures can be put in place. Come to the next board meeting and tell them in person or write them by visiting https://www.sjra.net/about/board/. Scroll down to the bottom of the page to see the email form.

Posted by Bob Rehak on 1/18/2020

872 Days after Hurricane Harvey

Barrington Is BACK and BETTER!

This morning, more than 22 months after Hurricane Harvey, the Barrington held a grand re-opening ceremony for its 18,000 square foot Manor House. When project manager Lauren Blackburn cut the red tape, residents got their first glimpse of a newly renovated and re-imagined community facility without equal in Kingwood, and perhaps without equal in the Houston area.

Houston City Council Member Dave Martin (left of bow) addresses a crowd gathered for the ribbon cutting ceremony.
Lauren Blackburn, right, the project manager planned the renovation meticulously. She laid out 72 steps that had to be taken before residents could even vote on the proposal.

Time to Enjoy Life Again

Driving into the parking lot, I could sense the electricity in the air. A large crowd gathered in front of the Manor House. People wanted this.

Residents of one of the hardest hit subdivisions during Harvey were out to make a statement. Every home looked perfectly manicured and freshly painted. Every blade of grass looked neatly trimmed and postcard perfect. Golfers were enjoying the immaculate greens and fairways of the surrounding Kingwood Country Club. Even the bluebirds were singing.

Flowers and flags set the stage.
Impressive without being intimidating, the Manor House radiates warmth and welcome.
Part of the library in the Manor House.
Conference table in the library.
A grand piano adorns the entry hall which looks out over the swimming pool.
Opposite the piano in the entry hall, another conversation area welcomes residents and guests to sit awhile and stay.
The Manor House is large enough to provide couples and friends with private, peaceful places to relax and socialize. It’s designed to bring people together..
One end of the Manor House provides an exercise room for adults.
The kitchen and dining area include a bar.
Game room for kids and teens includes a full size pool table.
Game room also includes ping pong…
…air hockey and more. Before the renovation, the Manor House did not have a game room at all.
The Manor House even has a play room for smaller children. Parents and babysitters can bring kids here to play and socialize.
The Manor House contains a room big enough to host parties, book clubs, church groups and more.
Reception area in the Manor House.
Pool area behind the Manor House.
A lighted tennis court allows extended play for serious enthusiasts.
This cabana provides shade near the tennis courts and swimming pool.
Residents Audrey and Gabriel Alvarado with their daughters Gloria and Reeva, can all walk to the new Manor House.
The Barrington is surrounded by the Kingwood Country Club, one of the largest private clubs in the country. It offers 72 holes of golf. The Club’s Lake Course surrounds the Barrington.

Overwhelmingly Approved by Barrington Residents

Blackburn says her team of residents surveyed the community three times to determine what the new Manor House should offer. Residents volunteered ideas for everything from the types of activities to the art on the walls.

Even though renovations cost more than $750,000, a whopping seventy-two percent of the residents voted for them.

Reflecting Needs of Next Generation

The developer originally conceived the Barrington for people older than 55. However, the survey found that 30% of the families had children under 10. As a result, the design of the original building, built in 2002/2003 changed.

“The community is different and the Manor House reflects the composition and wishes of the community,” says Blackburn.

Cultivating a Sense of Community

“In fact, we designed it to cultivate a sense of community,” said Blackburn. “People can hold all kinds of private events here. Or just hang out with friends. Groups can hold private events. Book clubs. Watch parties. Bible study. Birthdays. Community meetings. Weddings. Receptions. No other community has something like this. It’s what makes us special.”

The Barrington offers stately homes on immaculate streets surrounded by the Kingwood Country Club and nature.

Defined by Dreams, Not Disaster

Yes, the people of the Barrington made a statement today. They said, “We will no longer be defined by disaster. We will be defined by our dreams.” And they’re making those dreams come alive.

Posted by Bob Rehak on 7/20/2019

690 Days after Hurricane Harvey

Video of Barrington Evacuation During Harvey Makes Case for Lowering Lake Conroe, Nixing High-Rise Development

With barely a spoken word, this video makes an eloquent case for lowering Lake Conroe again this year. It also makes a powerful argument for denying the permit to build 5000 condos and high rises in the surrounding wetlands.

Evacuation from the Barrington during Harvey. Video courtesy of Kenneth and Colleen Ulrich. They moved to Kingwood from New Orleans after Katrina.

Surprise Evacuation

Kenneth Ulrich Jr. shot this video as he and his wife Colleen were forced to evacuate without warning from the Barrington during Harvey.

They share this video on the eve of a key San Jacinto River Authority board meeting. Tomorrow, the board will take up the question of whether to seasonally lower Lake Conroe again this year. The lowering would help provide a margin of safety against flooding like this until other flood mitigation measures can be put in place.

Lake Conroe boaters have complained about the inconvenience of the lower lake levels. The video shows what boating in Kingwood looked like 18 months ago as Harvey’s floodwaters rose.

Many residents escaped with little more than the clothes they wore.

Imagine Evacuating 15,000 People Like This

The video makes another powerful argument. Against the high-rise development proposed for Kingwood. Developers hope to build it around the Barrington which you see here. They want to build 5,000 condos immediately to the north and a string of high rises, including a 50 story hotel, immediately to the south. Kingwood has an average household population density of 2.71. That means this development could add 15,000 people to the area.

Every one of the 283 homes in the Barrington flooded. Imagine trying to evacuate another 15,000 people by boat during the next Harvey.

The developers have planned only one way in and out of this project – Woodland Hills Drive – which will be under water when the next big flood hits.

Clearly, they did not consider evacuation when they planned this development.

How to Register Your Concerns

If you have concerns about the high-rise project, email the US Army Corps of Engineers at: swg_public_notice@usace.army.mil . Make sure you put the project number in the title of the email: SWG-2016-00384 .

To voice your concerns to the SJRA board, attend the board meeting Thursday, Feb. 28 at:

1577 Dam Site Road
Conroe, Texas 77304
936.588.3111

Speakers are limited to three minutes each. Business attire is recommended. To reserve time to speak you must sign in by 7:45. The meeting will be in the tall building.

Allow an hour and fifteen minutes to an hour and a half to get there in rush hour traffic from the Humble/Kingwood area.

As always, these are my opinions on matters of public policy. They are protected by the First Amendment of the U.S. Constitution and the Anti-SLAPP statute of the Great State of Texas.

Posted by Bob Rehak on 2/27/2019

547 Days after Hurricane Harvey


New Drone Video Shows Areas for Proposed High-Rise Development

Jim Zura, owner of Zura Productions, flew his drones again on January 8 after the most recent flood went down. This time, he’s sharing two videos. The first, shot from River Grove Park, shows the area south of Barrington. The second, shot from Woodland Hills Drive at Deer Springs, shows the area north of the Barrington. Together, they show you the areas for most of the proposed new Romerica high-rise development and marina.

Drone pans approximately 120 degrees across the Romerica property from Barrington to the West Fork of the San Jacinto. End of shot zooms into the narrow area between Barrington and small lake where high rises would be built.
This video starts on Woodland Hills at Deer Springs. It pans up to reveal the northern part of the proposed high-rise development, then pans south toward Barrington.

Both videos offer panoramic views of the areas that Romerica proposes to raise by 12 feet. Raising these two areas would destroy trees and wetlands, increase the rate of runoff, and alter drainage patterns. It would also likely worsen flooding problems upstream and around the proposed development.

Not Only Human Residents Worry

Clark McCollough, a resident of Kingwood Lakes, reported that two bald eagles live near the property being permitted. He supplied this spectacular photo which I am reprinting with his permission. The developer wants to fill in wetlands near the nests and mitigate the loss of wetlands by purchasing credits somewhere else.

Register Comments on Permit Application with Army Corps

For complete details of the permit application, see this post. If no comments are received by January 31, the Corps will assume there are no objections. Do not assume that this permit will be denied just because FaceBook has a lot of negative buzz about it. The Corps does not read FaceBook. The best way to ensure this development does not happen is to write. We need every resident in Kingwood to respond. Important: In your letter, state that you want a public hearing.

Comments and requests for additional information should reference USACE file number, SWG-2016-00384, and should be submitted to: 

  • Evaluation Branch, North Unit 
  • Regulatory Division, CESWG-RD-E 
  • U.S. Army Corps of Engineers 
  • P.O. Box 1229 
  • Galveston, Texas 77553-1229 
  • 409-766-3869 Phone 
  • 409-766-6301 Fax 
  • swg_public_notice@usace.army.mil 

Posted by Bob Rehak on January 10, 2019

499 Days after Hurricane Harvey

More Video Near Site of Proposed New High-Rise Development

Jim Zura of Zura Productions filmed this video of rescue efforts on August 29th, 2017, during Harvey at the northern most (highest) end of the proposed new high-rise development in Kingwood.

He filmed the video at the intersection of Woodland Hills and Seven Oaks. For those not familiar with the neighborhood, it’s four blocks north of the Barrington entrance. The Barrington lies mostly in the 500-year floodplain (see FEMA map below). Zura says the people you see in the video are mostly residents of the Barrington being evacuated.

Proposed Development Area Already Vacated by Humble ISD

The site of the new development is on the left of this video and far lower than Barrington, which was built up with fill in the early Nineties. In fact, it contained Humble ISD’s first ag barn which flooded so frequently that the school district moved the ag facility to higher ground at Deer Ridge Park. Now the school district is moving the operation again – to even higher ground in Porter.

The proposed development would add fill to much of this low lying area and even fill in some wetlands. The developer would fill areas both north and south of the Barrington. Read details here and view the plans.

Zura video shot to the left of Plan View A, near northern portion of proposed development. 
The Barrington splits the development in half.

Relationship of Proposed Development to Flood Zones

Below, you can see the area of the proposed new development within this screen capture from FEMA’s flood hazard layer viewer. The Barrington lies within the bean shaped oval in the center. Brown areas represent the 500-year flood plain. Aqua areas represent 100-year flood plain. And cross-hatched areas represent the floodway of the river (main current during floods).

The blue box above the word Marina represents a “Letter of Map Revision (LOMR). The developer plans on building the marina and several high rises within that blue box. Such revisions are often granted when residents can prove that they have raised a foundation above the 100-year flood plain. The purpose: to lower flood insurance rates for people who would otherwise be IN the 100-year flood plain.

A History of Flooding

Most of the Barrington sits in the 500-year flood plain yet still flooded in 1994, Allison and Harvey. It nearly flooded in the Memorial Day weekend flood of 2016. See this other YouTube video by BYUCougarFan99. The videographer says it was shot in the southern part of Barrington. It appears to look east and south, toward Kingwood country club and the southern part of the proposed development.

Drone footage of 2016 Memorial Day Weekend Flood shot from the Barrington.

This article from the website Swamplot describes the development in detail with 3-D renderings. Note the heading: Livable Lake.

The Army Corps Wants Your Comments

The Army Corps’ public notice states that they are seeking comments on the proposed development. If they receive no comments before January 29, they will assume that residents have no objections. Comments and requests for additional information should reference USACE file number, SWG-2016-00384, and should be submitted to: 

  • Evaluation Branch, North Unit 
  • Regulatory Division, CESWG-RD-E 
  • U.S. Army Corps of Engineers 
  • P.O. Box 1229 
  • Galveston, Texas 77553-1229 
  • 409-766-3869 Phone 
  • 409-766-6301 Fax 
  • swg_public_notice@usace.army.mil 

The deadline is January 29, 2019.

Posted by Bob Rehak on January 1, 2019

490 Days since Hurricane Harvey