Tag Archive for: EPA

Biden Changes Trump’s Changes to Water Regulations

The Associated Press reported on December 30, 2021, that the Biden administration had reversed Trump-era changes to water regulations, which themselves were changes to Obama regulations and other previous administrations. This is getting to be like a tennis match. “Advantage Downstream.”

The EPA regulations have changed numerous times over the years. Enforcement changes, too.

The problem: Changes affect both water quality downstream and land development upstream. That’s why the rules change so often. Competing interests! Public health and safety vs. economic expansion.

Rivers Before the EPA and Clean Water Act

About two thirds of Americans alive today had not yet been born when Cleveland’s Cuyahoga River caught fire in 1969. So they have no memory of the event that helped give birth to the Environmental Protection Agency (EPA) in 1970.

The Cuyahoga River caught fire a total of 13 times dating back to 1868. It is still rated one of the most polluted rivers in America by almost every group that compiles lists. Photo: Cleveland State University Library.

Shortly after its founding, the EPA dispatched photographers all around the country to document environmental abuses.

The photographers took about 81,000 images, more than 20,000 of which were archived. At least 15,000 have been digitized by the National Archives. They form a time capsule showing the way things were.

Warning: These images are disturbing…for people on both sides of the political net.

Why the Changes This Time?

The AP article by Jim Salter and Michael Phillis says, “The Trump-era rule, finalized in 2020, was long sought by builders, oil and gas developers, farmers and others who complained about federal overreach that they said stretched into gullies, creeks and ravines on farmland and other private property.”

However, the writers continued, “…the Trump rule allowed businesses to dump pollutants into unprotected waterways and fill in some wetlands, threatening public water supplies downstream and harming wildlife and habitat.”

They quoted Kelly Moser, Senior Attorney for the Southern Environmental Law Center’s Clean Water Defense Initiative. She said, “Today, the Biden administration restored needed clean water protections so that our nation’s waters are guarded against pollution for fishing, swimming, and as sources of drinking water.”

At Issue: Definition of “Waters of the U.S.”

Meanwhile, courts at various levels are still pondering the definition of “Waters of the U.S.” At issue: How far up in the branching structure of a river may the government enforce regulations? As far as it’s navigable? One level up from that? Two? Three? Infinitely? And do the rules apply to desert areas the same way they do to subtropical areas like SE Texas?

The Biden administration decision is a setback for various industries. It broadens which wetlands, streams and rivers can be regulated under the Clean Water Act.

But given the impacts to public health and the immense economic interests at stake, this won’t be the last time we see the rules change. An army of lobbyists is likely mobilizing right now.

Local Impact

Several developments in the Lake Houston Area contained wetlands affected regulation changes. Consider, for instance, the case of Woodridge Village. The Army Corps ruled that it contained wetlands, but that the wetlands didn’t fall under their jurisdiction because of rules in effect at the time. So there was no violation of the Clean Water Act. Hundreds of homes in Elm Grove and North Kingwood Forest flooded, partially as a result of the environmental destruction.

In this area, sediment pollution is one of our most serious concerns. We’ve seen repeated and almost constant releases into the West Fork from 20-square miles of sand mines immediately upstream from us.

Confluence of Spring Creek and West Fork by 59 Bridge. TCEQ found that Liberty Mines discharged 56 million gallons of white waste water into the West Fork.
Repeated and multiple breaches at Triple PG mine discharged sediment-laden water directly into Caney Creek. This one lasted for months.

Searching on the word “breach” in ReduceFlooding.com pulls up 116 stories, many of which show multiple breaches.

But mining isn’t the only upstream issue at stake. So is sediment pollution from new development.

Drainage ditch in Artavia. March 2020 in West Fork watershed
Eroding ditch in Colony Ridge (East Fork Watershed) due to lack of backslope interceptor systems and grass.

Making Private Expenses a Public Cost

The EPA lists sediment as the most common pollutant in rivers, streams, lakes and reservoirs. It has contributed to flooding thousands of homes in the Lake Houston Area.

West Fork mouth bar almost totally blocked the river where it meets Lake Houston.
East Fork Mouth Bar grew 4000 feet in two years between Harvey and Imelda.

Both mouth bars above have since been dredged at great public expense, but abuses continue. I just wish we could all find a way to live together. This should not be a case of health and safety vs. economic development. We need all three for communities to prosper.

Posted by Bob Rehak on 1/2/23

1952 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.

A Townsen Bridge Across Spring Creek?

Developers are working toward building a bridge over Spring Creek and a road that would connect Townsen Boulevard in Humble with the Grand Parkway in Montgomery County. However, City and County authorities on both sides of the county line say they know nothing tangible about the bridge yet.

I’ve talked to several engineers about this property. One said that if the bridge gets built, it will open thousands of acres to development. A second said that if the property gets developed, it would be like “aiming a firehose at Kingwood and Humble.” A third cautioned that when the developer sees the new floodway and floodplain maps, a bridge will likely become cost prohibitive.

The developers in question have not returned calls, but here’s what we know so far based on publicly available information and several Freedom-of-Information-Act Requests.

Bridge Rumored for More than a Decade

The Army Corps of Engineers first issued a permit for a bridge in 2009. Last year, it issued an extension of the permit that requires completion of the work by 12/31/2026.

Map shown on Page 25 of Corps Permit Extension shows a 100-foot-wide right of way with twin bridges north- and southbound.

However, the Montgomery County Engineer’s Office and Harris County Flood Control say no one has applied for any permits with them yet to actually build a bridge. Regardless…

Company Purchases Land, Sets Up Mitigation Companies

The landowner on the north side of Spring Creek has purchased a small parcel of land on the south side of the creek at the current terminus of the Townsen Blvd. extension. Thus they would control the land needed for a bridge.

Pacific Indio owns thousands of acres north of the creek and one little parcel south of the creek where a bridge would terminate. From HCAD.org.

Pacific Indio controls another company called the Townsen Road Association and has also set up two mitigation companies. The latter are significant because the Army Corps permit contains an extensive discussion of mitigation needs.

MoCo Transportation Plan and Developers Promotional Material Show Bridge, Road

The Montgomery County Transportation Plan shows the extension of Townsen north to the Grand Parkway from where Townsen currently ends at Spring Creek.

Detail from Montgomery County Transportation Plan posted on MoCo Engineer’s website.

Also, a sign on westbound Grand Parkway indicates an exit for Townsen, but the road does not go through yet. Does TxDOT know something we don’t?

Ryko, the developer associated with the Pacific Indio land has announced its intentions to build the connecting road and 7,000 lots.

Subsidiaries Formed

Another company, Skymark, also has considerable floodplain holdings in Montgomery County under a variety of corporate shells, such as Hannover Estates, Headway Estates and the CFW Family Limited Partnership. The Secretary of State SOS Direct database shows that Skymark principal Clinton F. Wong controls 231 companies including Townsen Holdings and Townsen Landing.

From Texas SOS Direct. Note notation in lower right. This is page 7 of 24 containing a total of 231 companies.

The Montgomery County Appraisal District website shows that many of Wong’s holdings border Pacific Indio’s. And Skymark owns most of the land south of Spring Creek where the bridge would be built. See more below.

References in Intercontinental MUD Minutes

June 2022 minutes of the Intercontinental MUD board meeting reference Townsen Mitigation, one of Pacific Indio’s subsidiaries.

The minutes also reference a settlement between the EPA and Skymark.

Purchase Offer Reportedly Turned Down

Harris County Flood Control reportedly offered to buy this land several years ago, but Ryko wanted “an insane amount of money.” This could have been an indication that the owner felt confident in its ability to develop the land and profit from it.

…But Project Would be Very Difficult to Develop

FEMA shows large floodways and floodplains on both sides of the creek that any road would have to go over or through. Keep in mind that the map below does not yet show the new Post-Harvey flood hazards. They will reportedly expand by 50- to 100%.

From FEMA’s National Flood Hazard Layer Viewer. Note: the image shows Pre-Harvey flood hazards. Post-Harvey maps have not yet been released, but should be soon.

Permit plans also show at least 9 other stream crossings along the way north. Those would expand, too, with the new floodplain maps.

Finally, the project would cross numerous wetlands.

Wetlands on Pacific Indio Property near the confluence of three major waterways: West Fork San Jacinto, Spring Creek, Cypress Creek. From from National Wetlands Inventory,

Legal History

The Bender Estate, which previously owned approximately 800 acres of undeveloped land in the northwest quadrant of Humble, granted a Right-Of-Way easement to Ryko Development to construct a road that would ultimately cross Spring Creek and service the planned development between Spring Creek and 99 on the Pacific-Indio Property.  

Skymark Development later purchased those 800 acres from the Bender Estate and started to develop them.

According to Jason Stuebe, Humble City Manager, after Humble began to re-construct Townsen, Ryko presented the easement to Humble and stated they intended to connect into Townsen Blvd.

This caused consternation as it didn’t fit with the city’s plans for reconstructing Townsend. All parties (including Ryko and Skymark) went to court. They reached a settlement sometime in 2018 that gave Ryko two years to begin constructing the roadway. 

EPA Delays Road

However, a cease-and-desist order from the EPA delayed the work; Skymark inappropriately filled in some wetlands elsewhere on its property. Once the EPA recognized that Ryko’s road was not affiliated with the wetlands issue, EPA allowed Ryko to proceed with constructing the road. 

In 2019, Humble City Council approved the plat dedicating the roadway as a public Right-Of-Way once completed. Then COVID delayed the road again. An exception to the settlement was made. Construction has since resumed, albeit slowly. 

New Townsen Landing development
Extension to Townsen Boulevard under construction where it stops at Spring Creek. Photo taken 9/26/2022.

Stuebe stated, “Because the road actually leads out of our jurisdiction, I have no further information on the status of its permitting with either Harris County or the state with regard to crossing Spring Creek. Once the roadway is completed, inspected and approved by the City Engineer and Public Works, it will become a right of way of Humble.”

I suspect that the bridge is more of a dream than a done deal at this point. Despite obstacles, attempts are being made to put all the pieces of the puzzle into place. But high hurdles remain.

Posted by Bob Rehak on 11/19/22

1908 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.

 

Silty Detention Pond Flushed into Bens Branch

Contractors at the controversial mini rent home development called the Preserve at Woodridge Forest flushed a silt-laden detention pond into a stormwater channel leading to Bens Branch this week. The silty water migrated at least two miles downstream. The pictures below show the trail of silt.

On 4/17/22, Easter Sunday, I photographed a full pond and noticed a pump in the upper right (southeast) corner of the pond.

Looking east over Preserve at Woodridge Forest detention pond on Easter Sunday. Note pump in upper right and pond level.

Three days later, the pump was still going and the pond was nearly empty.

Pump still working on Wednesday.

The ditch between the Preserve and Kingwood Park High School was filled with identically colored water.

Color of water in ditch matches color of water in pond. Note pile of silt in ditch below pump hose in lower left.
Looking north past pump and the near-empty detention pond.
Equipment apparently cleared paths for northern end of pond to drain toward pump.

Where did all the silty water go?

Bens Branch south of Northpark Drive.
One block downstream, Bens Branch at Woodland Hills Drive.
Bens Branch at Tree Lane approximately 2 miles south of construction site. Resident Chris Bloch followed the pollution even farther downstream.

Fish Story

As I photographed the silty water above going down Bens Branch, two young boys with fishing poles came up to me. They looked at the water in disbelief and then looked at me quizzically. “Do you think it’s safe?” they asked.

“Hard to tell,” I said. “It’s runoff from a construction site upstream.”

They left without even dropping a hook into the water or saying a word. Smart kids.

Dangers of Sediment Pollution

The EPA published this brochure that explains some of the dangers of sediment pollution. Among them, it says, “Sediment in stream beds disrupts the natural food chain by destroying the habitat where the smallest stream organisms live and causing massive declines in fish populations. Sediment increases the cost of treating drinking water and can result in odor and taste problems.” Bens Branch empties straight into Lake Houston, the source of drinking water for 2 million people.

Sediment can also clog streams, reducing their carrying capacity. Harris County Flood Control recently cleaned out Bens Branch in a 4-phase project. According to the Kingwood Area Drainage analysis, it had been reduced to a 2-year level of service in places. That means it would flood on a 2-year rain.

No Permit Posted

For these reasons, the Texas Commission on Environmental Quality closely monitors construction sites. But the Preserve at Woodridge did not have a TCEQ Construction General Permit posted at the street. This web page seems to indicate they should have one. See Step 5. It says, “Before starting construction, post a copy of the Site Notice at the construction site. Leave the notice posted until construction is completed.”

Posted by Bob Rehak on 4/23/22, with thanks to Chris Bloch for alerting me to the story

1698 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.

Big Picture

It’s always nice to start the new year by looking at the big picture. And big pictures don’t get much bigger than this. The image below comes from NOAA’s Global Data Explorer. It shows sea surface temperature anomalies in the Pacific and Atlantic. Reds show areas with warmer than normal temperatures. Blues are cooler.

Sea surface temperature anomalies from 12/20/21 to 12/26/21. Source: NOAA.

Degrees of Variation

The dark red areas are a whopping 4-5 degrees Celsius above normal. The dark blues are 3-4 degrees Celsius below normal. It takes 1.8 degrees Fahrenheit to equal 1 degree Celsius. So in terms of the temperature scale that most people in the US use, that’s up to 9 degrees warmer and 7.2 degrees cooler – a 16.2 degree spread.

This helps to explain the record warm December we just had. Houston is in that band of red that stretches across the northern hemisphere. Also notice how red the Gulf of Mexico is.

According to the EPA, an increase in sea surface temperatures can lead to an increase in the amount of atmospheric water vapor over the oceans. “This water vapor feeds weather systems that produce precipitation, increasing the risk of heavy rain and snow.” And we just had extreme snowfalls from the Sierras to the Rockies.

Role of Ocean Currents

Ocean currents help distribute this moisture around the world. According to NOAA, “almost all rain that falls on land starts off in the ocean.”

The world’s major ocean currents distribute heat and moisture across the globe. Source: NOAA.

“Ocean currents act much like a conveyor belt, transporting warm water and precipitation from the equator toward the poles and cold water from the poles back to the tropics,” says NOAA. “Thus, ocean currents regulate global climate, helping to counteract the uneven distribution of solar radiation reaching Earth’s surface. Without currents in the ocean, regional temperatures would be more extreme—super hot at the equator and frigid toward the poles—and much less of Earth’s land would be habitable.”

Cyclical Variation

Sea surface temperatures vary in cyclical, but irregular patterns (roughly every 3-6 years). Right now, we are under the influence of a La Niña pattern, that recurs every few years and can last as long as two years. This page on NOAA’s site explains what causes the changes. They often start with ocean currents veering off course for a period of time or stronger than normal trade winds.

The World Meteorological Association gives this La Niña an 80% chance of lasting through this spring before returning to normal (neutral) conditions.

Posted by Bob Rehak on 1/1/22

1586 Days since Hurricane Harvey

AP Article Cites Texas A&M Study Showing Pollution Surged 62% Since EPA Enforcement Rollback

An Associated Press article published this afternoon and already being picked up by many news outlets cites a Texas A&M study of air quality monitors in the most heavily industrialized parts of Houston. The A&M study reportedly shows that air pollution has surged 62% in the three weeks since the EPA announced that it would relax enforcement of pollution regulations due to the corona virus.

The new enforcement standard, announced March 26th, also affects water pollution which I reported on April 1.

The EPA claims its new stance represents a reasonable response to the virus crisis. Many plants, they say, have been crippled by worker absences.

I have no problem with that. I’m sure the virus has affected law enforcement agencies around the country.

I do have one problem, however: the public announcement that you will stop enforcing the law.

Can you imagine, for instance, what would happen if:

  • Houston Police Department announced it would pull all officers out of Kingwood?
  • The SEC announced it would no longer prosecute insider trading during the virus crisis?
  • The Defense Department signaled that it would not retaliate against foreign aggression?

While I do believe that the vast majority of people and companies would continue obeying the law, I also believe that some will take advantage of the lack of enforcement. The public announcement gave a green light to people in the latter category.

A 62% increase in three weeks sounds like a big jump.

Had the EPA used its enforcement discretion to quietly relax prosecution of businesses hampered by the virus, it could have shown compassion and reasonableness without harming the regulated community. However, the public announcement of the relaxed policy may have harmed residents living near pollution sources. The AP article cites many examples.

I wonder how the announcement impacted San Jacinto River sand mines and water quality. EPA enforcement in this area has never been aggressive in my opinion.

Confluence of Spring Creek and West Fork showing pollution coming off West Fork at Montgomery County Line. 20 square miles of sand mines lie upstream on the West Fork. Photo taken March 6.

When someone writes the history of this EPA enforcement controversy, the key question will be “Why the public announcement?”

Posted by Bob Rehak on 4/19/2020

964 Days since Hurricane Harvey

EPA Suspends Enforcement of Pollution Rules During Virus Epidemic

The EPA has suspended normal enforcement of air and water pollution rules during the corona virus epidemic. Critics fear it could cause more deaths. They also fear that rules forced through during the emergency could hamper future pollution control efforts. Specifically, a new, broadened rule would limit use of research based on confidential health information in regulatory decisions.

Full Text of EPA Memo

This 7-page memo from the EPA outlines the new policy. It says, the EPA will “generally not seek stipulated or other penalties for noncompliance…” The thrust of the memo: EPA is counting on industry to self-report violations. If violations relate to worker shortages due to the virus, EPA will not seek penalties. EPA will also give offenders time to remedy the situation.

Reaction from Interceptor

Sharon Lerner writes in The Interceptor that “EPA IS JAMMING THROUGH ROLLBACKS THAT COULD INCREASE CORONAVIRUS DEATHS.” The article cites the case of a Pasadena refinery exceeding benzene emission limits. It also cites problems in St. Johns, Louisiana. St. John reportedly has the highest cancer risk from air pollutants in the country. Area residents are routinely exposed to dozens of air pollutants, including the carcinogen chloroprene.

Residents worry that their weakened immune response from the chemicals will make them even more susceptible to the virus.

Review by New York Times

Lisa Friedman writes in The New York Times that “E.P.A., Citing Coronavirus, Drastically Relaxes Rules for Polluters.” The EPA, says the article, will focus during the outbreak “on situations that may create an acute risk or imminent threat to public health or the environment” and said it would exercise “discretion” in enforcing other environmental rules. In other words, they will focus primarily on the worst cases.

Ms. Friedman interviewed former EPA administrators. Gina McCarthy, who led the E.P.A. under the Obama administration and now serves as president of the Natural Resources Defense Council, called it “an open license to pollute.” Cynthia Giles, who headed the E.P.A. enforcement division during the Obama administration, said: “This is essentially a nationwide waiver of environmental rules. It is so far beyond any reasonable response. I am just stunned.”

A current spokesperson for the EPA, Andrea Woods, disagreed. “For situations outside of routine monitoring and reporting,” she said, “the agency has reserved its authorities and will take the pandemic into account on a case-by-case basis.”

Protest by 21 Environmental and Watchdog Groups

Meanwhile, Rebecca Beitsch reports in The Hill that “Coalition petitions EPA for disclosure as agency OKs suspension of environmental monitoring.” She says, “Environmental groups have characterized the memo as a license to pollute, as companies will not have to submit regular reports to the EPA showing they are not violating environmental laws.” She cites a petition spearheaded by the Natural Resources Defense Council which was signed by 21 environmental and watchdog groups. “We fully appreciate the disruption and harm caused by the COVID‐19 pandemic. But EPA’s unprecedented non‐enforcement policy creates a clear opportunity for abuse,” states the petition.

LA Times Reports on Reaction by California Officials

The Los Angeles Times reports in an article by Susanne Rust, Louis Sahagun and Rosanna Xia. “Citing coronavirus, EPA suspends enforcement of environmental laws.” The LA Times article focuses on the response of California officials. “The severity of the COVID-19 crisis should not be used as an excuse by the EPA to relax enforcement of federal environmental laws designed to protect public health and safety,” said Serge Dedina, mayor of Imperial Beach. His city, on the Mexican border, is under constant siege from pollution. “This crisis has only underscored why protecting public health and safety and our environment is more critical than ever.”

Is EPA Using Crisis as Cover to Make Concessions to Polluters?

Vox in an article by By Zeeshan Aleem claimed that “The EPA appears to be using coronavirus to make huge concessions to polluters.” It says the rule will remain in place indefinitely. And it gives factories, power plants, and other major polluters tremendous discretion. Now they can decide whether or not the coronavirus will prevent them from meeting legal requirements on air and water pollution and hazardous waste management. “Many experts and environmental advocates say that while case-by-case relaxation of rules for companies that are short-staffed due to the pandemic makes sense, the expansiveness of the EPA’s directive appears both unprecedented and designed to give a green light to polluters to act recklessly at a time when air quality is acutely important for public health.”

Other Reaction from Around the Country

For additional perspectives see:

Business Insider: The Environmental Protection Agency says it won’t enforce its own rules during the coronavirus pandemic.

USA Today: EPA suspends some public health monitoring and enforcement because of coronavirus crisis.

Texas Tribune: Citing coronavirus pandemic, Trump administration stops enforcing environmental laws.

CBS News: “An open license to pollute”: Trump administration indefinitely suspends some environmental protection laws during coronavirus pandemic.

An Associated Press Article in Marketwatch: Citing coronavirus, EPA has stopped enforcing environmental laws

The list goes on. A google search returned 11,800,000 results.

Will TCEQ Follow EPA Lead?

To say this is controversial would be an understatement.

At the very time when people’s lives and health are threatened by the virus, the EPA is dialing back enforcement of pollution rules that protect their lives and health.

At best, you could characterize the reaction to the new rule as “practical” given new constrictions we all operate under.

But, like the national press, I worry that this is part of a broader effort to dial back enforcement against polluters. We see examples of pollution threats right here in the Lake Houston area almost every month. And we saw them before the pandemic.

The day the West Fork ran white. TCEQ alleges Liberty Materials mine upstream dumped 56 million gallons of process water into the San Jacinto.
Aerial photo taken March 6 shows neighboring properties in foreground flooded by process water from the Triple PG mine in Porter, Tx. This process water migrated through the forest into the floodplain of White Oak Creek which ultimately leads to Lake Houston and the drinking water of 2 million people.

It will be interesting to see how the TCEQ reacts to the new EPA stance. Will they fall in line? I expect their report on the latest concerns about the Triple PG mine on Friday. The mine allegedly violated the terms of a temporary injunction in its case with the Texas Attorney General. Stay tuned.

Posted by Bob Rehak on 4/1/2020

946 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.

High-Rise Protest Letter from Former EPA Scientist Suggests Unique Approach

Letters to the Army Corps and TCEQ keep pouring in. Without exception, they protest the permitting of the proposed high-rise development near River Grove in the flood plain and floodway of the West Fork.

If researching ideas for your own letters, consult the high-rises page of this web site, specifically the right hand column. It explains the controversy and how you can protest the permitting if you wish.

I have posted many of the letters, both from groups and individuals, to help give people ideas for how this process works. Today, I received a letter from an environmental scientist who spent almost three decades with the EPA. His name is Ken Teague and his letter impressed me – for the points it made. the succinct way he made them and a unique twist.

Mr. Teague suggested trying to get the EPA to elevate consideration of the permit by asking to have the West Fork considered as an Aquatic Resource of National Importance. He gave me permission to reprint his letter. See it below.

Text of Letter from Former EPA Employee

To: swg_public_ notice@usace.army.mil; 401certs@tceq.texas.gov; Kaspar.Paul@epa.gov; Martinez.maria@epa.gov; david_hoth@fws.gov; Rusty.Swafford@noaa.gov

Subject: SWG-2016-00384

Dear Sir/Ms: I have reviewed the subject PN and have the following comments:

  • I suggest that the wetlands proposed to be destroyed by this project may be Aquatic Resources of National Importance, and if so, I recommend the U.S. EPA elevate review of this permit application under EPA/USACE procedures.
  • The applicant has not met the Clean Water Act Section 404(b)(1) Guidelines.  The information provided with the PN does not support that the applicant has conducted an appropriate alternatives analysis, or demonstrated efforts to avoid and minimize impacts to aquatic habitats.  I strongly recommend USACE require the applicant to demonstrate they have met the requirements of the Guidelines.
  • Most of the components of the proposed project are not water dependent.  The one component that is water dependent, the marina, has not been demonstrated to be needed. The USACE must review the proposed project for its water dependency.  Non water-dependent projects should not  be permitted if they impact aquatic habitats. Water dependent projects should only be permitted if they are demonstrated to be needed.
  • The applicant stated an existing 17.59-acre conservation easement exists within the commercial and residential district which is associated with a compensatory mitigation area for Department of the Army Permit SWG-99-26-012 verified on 25 May 1999. This permit was conditioned to place 21.90 acres (12.19 acres of wetlands and 8.99 acres of upland buffer) into a conservation easement. It is not clear what this means, but if it means the applicant is proposing to destroy aquatic habitats that were previously preserved as compensatory mitigation as compensation for previous destruction of aquatic habitats, such impacts to such mitigation absolutely must not be permitted.
  • The site is subject to flooding (see attached image).  I assert that it is not in the public interest for the USACE to permit development in flood prone areas, so USACE should not permit the proposed actions. The applicant proposes to greatly elevate the areas it proposes to develop using soil from an undisclosed location.  This elevation will change hydrology in surrounding areas, guaranteeing that nearby low elevation properties will flood much more frequently, for a longer duration, and greater depth, than is currently the case.  This will almost certainly negatively impact nearby infrastructure and habitats.  Permitting such changes would clearly not be in the public interest.
  • The applicant has not proposed mitigation, other than to say that they will either conduct permittee responsible mitigation or purchase credits from a mitigation bank.  The USACE must provide the public the opportunity to review and comment on proposed mitigation. This does not meet the requirement.
  • Do not permit the proposed activity.

Sincerely,

(Signed) Kenneth G. Teague, PWS, Certified Senior Ecologist

Aquatic Resource of National Importance?

I’m not sure if the specific 47 acres of wetlands are an Aquatic Resource of National Importance. But I have no doubt that the West Fork of the San Jacinto is. And these wetlands help protect that resource, by holding and filtering water before it reaches Lake Houston.

Why is it so important? Five reasons come to mind:

  1. This reach of the West Fork connects two lakes that provide water for two million people.
  2. It provides industrial process water for a large portion of America’s refining and petrochemical plants.
  3. Bald eagles, a threatened and protected species, live up and down the West Fork. Hundreds of other species of birds use the river and the forests that surround it as a migration corridor.
  4. The shores of the river contain many bottomland hardwoods, bogs, marshes and wetlands that are all integral parts of a unique connected environment.
  5. It’s a rare and beautiful natural resource that’s easily accessible to millions of people.

Long Shot, But Worth a Try

Lake Houston communities have proved for decades that low-impact development like we now have can co-exist with this unique environment without disturbing the wildlife that make it so special. But I doubt it could survive the kind of high-rise, high-density development that Romerica Investments has in mind.

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 statutes of the great state of Texas.

Posted by Bob Rehak on January 21, 2019

510 Days after Hurricane Harvey

Guide to Lake Houston Area Floodplain Regulations

Guidelines for floodplain development can bewilder even professionals. Overlapping jurisdictions often have different guidelines.  And guidelines often change, as Houston’s just did. Houston now manages the 100-year and 500-year floodplains differently. Cities also have building codes that include more requirements.


Site of the proposed new marina and high rise development. Shot from over the West Fork shortly after Harvey. Note sand deposited by Harvey. 25 and 50-story high-rises would be built on the narrow strip between the lake and the Barrington at the top of frame.

Overview

People ARE generally allowed to build and place fill in floodplains. However, they must follow local floodplain guidelines and obtain permits that restrict what they can do. They must also submit environmental surveys, mitigate wetlands, and provide hydrologic and hydraulic studies. In Houston, they may move earth from one location to another within a floodplain, but not add to the total volume. The general rule of thumb: zero negative impact on the conveyance of the river.

If a development destroys wetlands, wetland credits must be purchased from a mitigation bank. Mitigation banks place conservation easements on some of our most valuable wetlands. By helping to finance conservation of those areas, destruction of less valuable wetlands elsewhere may be permitted. Generally but not always, the mitigation credits must be within the same watershed. However, this is not always the case. Extenuating circumstances may exist.

KSA once considered placing East End Park in a mitigation bank as a way to help finance its long range parks plan. The conservation easement would ensure that the character of the park never changed. And the money raised would have provided needed improvements to other parks at no cost to residents.

Federal Guidelines and How They Relate to Local

FEMA establishes minimum standards for a community to enroll in the National Flood Insurance Program (NFIP). By enrolling and administering floodplain regulations, it allows their residents the opportunity to purchase Flood Insurance through the NFIP. You must at least build at FEMA’s base flood elevation (BFE). But communities can and do set higher standards. And each may have different guidelines.

Engineers and regulators often talk about “freeboard factors.” Freeboard, a nautical term, means “the height of a ships side between the waterline and the deck.” In a flooding context, freeboard means minimum elevation above the BFE. You often see it described as “BFE + 1 ft.” Or 2 feet. Or X feet. Think of it as a safety margin. Any freeboard above the BFE is considered a local community’s higher standard.

To provide a context, below are links to some of the floodplain management orders/ordinances.

Houston Guidelines

HOW Ordinance is Executed

Note Chapters 9 and 13. They changed on September 1, 2018. Changes address building code issues for FEMA X zones. Zone X includes the 500 year flood plain. Many such areas flooded during Harvey.

Humble Guidelines

Flood Damage Protection Ordinance

Harris County Guidelines for Unincorporated Areas

Main Website

Laws

Cheat Sheet: Quick View of Changes Implemented in January

Montgomery County For Unincorporated Areas

Floodplain

Drainage Manual For Commercial Developments Greater than 15,000 SF 

Army Corps

If a development affects a major waterway like the San Jacinto River, its wetlands, its flow, or endangered wildlife, the Army Corps will also review studies submitted as part of the permitting process. They would look at applications from the point of view of the EPA and Clean Water Act, especially Section 404.  Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. … For most discharges that will have only minimal adverse effects, a general permit may be suitable. This is the major focus of the permitting process now underway for the high-rise development in Kingwood.

TCEQ

The Clean Water Act also contains a section 401.  It specifically focuses on how States and Tribes can use their water quality standards in Section 401 certifications to protect wetlands. States and Tribes can review and approve, condition, or deny any Federal permits or licenses that may result in a discharge to waters of United States within their borders, including wetlands. States and Tribes make their decisions to deny, certify, or condition permits or licenses primarily by ensuring the activity will comply with applicable water quality standards. In addition, States and Tribes look at whether the activity will violate effluent limitations, new source performance standards, toxic pollutants restrictions and other water resource requirements of State or Tribal law.

Jurisdictional Divides

The Houston ordinance only applies to Houston’s jurisdiction. Houston does not influence neighbors and cannot control or force their policies on other jurisdictions. That is important since Kingwood is surrounded by Humble, unincorporated Harris County (Atascocita and Huffman), and unincorporated Montgomery County.

The Key

Understand that if a developer/individual meets the requirements identified in the floodplain ordinance(s), they can develop in the floodplain (including the floodway). Floodplain administrators must follow the law. However, they try to discourage dangerous floodplain development by “working to rule.” By strictly following all rules with no wiggle room, floodplain administrators can drag permitting processes out. A knowledgeable floodplain administrator can find problems with plans, surveys, and engineering reports for years. By requesting revisions, they can make life so difficult for applicants that it affects the economics of their developments. Eventually they may decide that a project falls into that great black box called “too hard to do,” and walk away.

Words of Wisdom

A regulator told me today that the more people who protest a permit, the harder they are to ignore.

If you have concerns about the high rise development in Kingwood, make sure you register them with the Army Corps (which is currently reviewing the permitting from a CWA 404 perspective). The deadline: January 29.

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 9, 2019
498 Days Since Hurricane Harvey

San Jacinto West Fork Watersheds Partnership Focusing on Water-Quality Issues

The Houston Chronicle yesterday reported on a coalition called the West Fork Watersheds Partnership (WFWP), tackling water quality issues on the West Fork of the San Jacinto and its tributaries. The article claims that the West Fork and one of its tributaries fail to meet water quality standards. It also cites the dangers of fecal material in the water.

The Houston-Galveston Area Council (HGAC), Galveston Bay Estuary Program, TCEQ, and EPA are leading the WFWP, which includes a wider group of organizations, businesses and residents concerned about water quality.


The map above shows critical levels of bacteria in the upper San Jacinto River basin. Red means “impaired.” Green means “not impaired.” In fresh water the indicator bacteria is E. coli. When present, it is likely that other disease-causing bacteria, parasites, and viruses may also be present. Source: H-GAC’s Water Resources Information Map.

The Houston-Galveston Area Council Water Resources Information Map above indicates just how critical bacteria have become. It features water-quality data from the H-GAC’s Clean Rivers Program, which helps ensure safe, clean surface water for the region by providing high quality data. H-GAC works with seven partner agencies to collect and analyze data from over 450 monitoring locations throughout the region.

Bacteria levels are measured at all monitoring locations. In fresh water the indicator bacteria is E. coli. These bacteria originate in the intestinal tract of warm blooded animals and can be harmful to humans. When either of these bacteria are present, it is likely that other disease causing bacteria, parasites, and viruses may also be present.

How does bacteria get into our waterways?

According to H-GAC, bacteria can enter surface waters through many pathways. Most water bodies have most, if not all, of the following bacteria sources.

  • Malfunctioning wastewater treatment plants
  • Sanitary sewer system overflows
  • Failing Onsite Sewer Facilities (OSSFs) and septic systems
  • Runoff from livestock
  • Pet waste
  • Wildlife and feral hogs

Each water body is unique in the combination of bacteria sources and the amount from each source that makes up the total bacteria present.

Why should we care about bacteria?

The water you drink from a tap has been treated to remove bacteria. However, anyone who ingests contaminated water, i.e., when swimming or during a flood, can become ill. People with compromised immune systems or individuals with open wounds or cuts that come into contact with contaminated water are especially vulnerable. A Kingwood resident who had a cut and was exposed to floodwater during Harvey died from flesh-eating bacteria.

Contaminated water can also cause diseases such as:

  • cholera
  • dysentery
  • giardiasis
  • hemolytic uremic syndrome
  • hepatitis
  • typhoid fever

Turbidity a Complicating Factor

The U.S. Geological Survey (USGS) indicates that excessive turbidity, or cloudiness, in drinking water may also represent a health concern. “Turbidity can,” says the USGS, “provide food and shelter for pathogens. If not removed, turbidity can promote regrowth of pathogens in the distribution system, leading to waterborne disease outbreaks, which have caused significant cases of gastroenteritis throughout the United States and the world. Although turbidity is not a direct indicator of health risk, numerous studies show a strong relationship between removal of turbidity and removal of protozoa. The particles of turbidity provide “shelter” for microbes by reducing their exposure to attack by disinfectants. Microbial attachment to particulate material has been considered to aid in microbe survival. Fortunately, traditional water treatment processes have the ability to effectively remove turbidity when operated properly. (Source: EPA)”

Any increase in sedimentation beyond the baseline level of nature increases the difficulty and cost of water purification. USGS data shows a spike in turbidity after every major rain. The rain carries exposed sediment to the river. Some comes from urban environments; some comes from stream beds, agricultural land and construction sites; and some comes from sand mines.

USGS has set up a special website that lets you monitor water-quality data from dozens of gages in and around Lake Houston, many of them in real time.  If you are ever concerned about water quality issues, this is a good place to start your investigation.

Graph showing how turbidity spiked in Lake Houston after three major storms in 2015, 2016 and 2017.

Posted by Bob Rehak on September 12, 2018

379 Days since Hurricane Harvey