Tag Archive for: EPA

How Floods Can Leave a Lasting Legacy of Loss

Long after floods recede, the residue of toxic chemicals carried by the water can leave a lasting legacy of loss. It can remain in homes and yards, affecting the health of both homeowners and neighborhoods. During Hurricane Harvey, for instance, sewage contaminated the cleanups of both Kingwood College and Kingwood High School. Decontamination, cleanup and repairs took years in each case. But individual residents often don’t have the money to afford expensive decontamination.

Flooding Near Rail Yards and Creosote

One of the most heartbreaking cases in the City of Houston/Harris County has to do with a controversial, decades-long creosote/dioxin cleanup effort associated with the Union Pacific Railroad yard in the Fifth Ward. The Texas Department of Health Services has identified several cancer clusters in the area. And the types of cancers found near the former “Wood Preserving Works” at 4910 Liberty Road in Houston have been associated with the types of chemicals used on the site for decades.

Wood Treatment Facility was located at far end of this yard.
FEMA flood map shows how tracks constrict the flow of floodwaters in Hunting Bayou. Water flows from upper left to lower right. Tan = 500 year floodplain. Aqua = 100 year.

Residents interviewed for this article discussed several pathways for possible contamination: airborne dust, groundwater, floodwater/runoff, and clothing of workers. Site runoff mixed with floodwater appears to be one of the most likely.

The map above and the photos below clearly show that the site is elevated compared to surrounding neighborhoods. And residents tell stories of multi-colored sheens on runoff channeled through their streets.

Dueling Studies

UP inherited the site in 1997 after a merger with Southern Pacific. Southern Pacific treated railroad ties with creosote at the site between 1899 and 1984. The creosote is a preservative that keeps ties from rotting and causing derailments.

Union Pacific says it has has found no relationship between the site and cancer clusters in surrounding neighborhoods after 30 years of study.

However, in 2020, the Texas Department of State Health Services published a study covering the years from 2000 to 2016. The study compared cancer rates in the area near the rail yards with those throughout Houston and Texas as the baseline. Researchers identified several cancer clusters in the Fifth Ward neighborhoods you see above.

But UP questions the validity of that study. The company claims that “The area also includes an industrial complex containing about 200 TCEQ-regulated cleanup sites and two superfund projects. The former Houston Wood Preserving Works site represents 33 acres, or less than .4 percent of the total cancer-cluster territory.”

In February 2023, the EPA demanded yet another study as the two sides locked in a stalemate.

Mayor Says “We Know Enough”

Then yesterday, Houston Mayor Sylvester Turner held a press conference. He escalated the conflict. Turner, who has just five months left in office, says he supported the additional study but, “we have studied the problem enough. The time for action is now. Time is the enemy.”

Turner urged relocating people in the most contaminated areas closest to the site. He emphasized finding safer places in the same general area to reduce the impact of relocation.

“Let me emphasize this,” said Turner. “Time is the enemy of people living in the highly exposed and dangerous zone with limited means to do anything else. How many more people must be diagnosed with cancer? How many more people – and specifically, how many more children – must die? How many more families must be trapped in a known danger zone while we watch, test and litigate? The city cannot and will not continue to wait until we know every single thing.“

The Mayor continued, “We know enough. The cancer cluster is clear. The presence of creosote beneath homes at levels above cleanup standards is clear. The presence of elevated levels of cancer-causing dioxin detected at some homes through the city’s limited studies is clear. You simply can’t wait for the test to be completed, and watch and litigate it, and then start the process further down the road.” 

Mayor Recommends Relocating Residents within 2-3 Block Radius of Site

“Today, I’m announcing a strike-force team composed of representatives of the city’s Health and Human Services, Housing and Community Development, Real-Estate Recovery, and legal teams, along with outside sources. They will begin work in earnest on a program to help relocate residents living above the creosote plume and in a 2 to 3 block radius around the site.”

If the results of the EPA’s Union-Pacific investigation reveal broader areas of impact, Turner says the program will be expanded to help those people, too.

Turner concluded with a personal anecdote that related to his own experience with cancer. He said that with cancer, “Time is your enemy.” That’s why he wanted to get people out of harm’s way who can’t fend for themselves.

Lasting Legacy of Loss – Case After Case of Cancer, Boarded Up Homes

When I flew over the UP site last year, I was astounded by its size. Ken Williams, chairman of the Harris County Community Resilience Flood Task Force who lives nearby, introduced me to some people in the neighborhood, including Keith Downey, the local Super-Neighborhood Council President.

They gave me a tour. It was one of my more gut-wrenching experiences since Harvey.

I also met a young lady, Sandra Edwards, who grew up across the street from the UP site. She walked us up and down the block, stopping in front of each house, to tell us the stories of the occupants. Within a half block, we counted about a dozen neighbors who had died or were dying from cancer.

Sandra Edwards, concerned neighbor turned activist
Every other home it seemed was abandoned.
One that wasn’t abandoned had children’s play equipment in the front. But the EPA warns not to let kids play in the dirt because of soil contamination.
Many of the homes had reportedly been victimized by arson. Edwards talked of a developer trying to buy up properties to redevelop the neighborhood whose future is still in doubt.
Edwards in front of former creosote site. Note slope. Water runs into neighborhood according to Edwards.
Looking NNE across creosote site. Note Fleming Middle School five blocks north, left of center near top of frame.

I returned to the neighborhood several times between July and December to photograph the progress of cleanup.

Toxic waste cleanup on creosote site
In November, cleanup was still going strong.
Note the covered dumpsters to keep excavated dirt from blowing out. Also note plastic liners under dumpsters to keep polluted rainwater from soaking back into soil.

Many of the people living here inherited homes that their parents or grandparents owned before there was an EPA and people knew about the dangers of substances such as creosote and dioxins.

This lasting legacy of loss has been developing for decades. It could be decades more before the parties find a mutually agreeable solution.

Check back for more news as it develops. For more information see this list of studies conducted by the Houston Health Department.

Posted by Bob Rehak on 7/14/23

2145 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 Development Delays Can Impact Flooding

For a variety of reasons, many new developments seem to be “on pause” these days. Developers clear and grade land. Then it may sit undeveloped for months or even years.

This leaves exposed soil unprotected by vegetation. That makes it more susceptible to erosion for longer periods. And the eroded soil can clog streams and creeks with excess sediment. That reduces conveyance and can contribute to potential flooding. The EPA classifies sediment as the most common pollutant in American rivers and streams.

I am not alleging that all of the developments below have flooded other properties – though some have. But in extreme storms, they may contribute to conditions that increase flood risk.

That raises the question: Can we reduce that risk? That, of course, requires understanding what’s slowing development. But let me show you some examples of stalled developments first.

Unprotected Soil

No one keeps statistics on how long cleared land remains undeveloped. But suddenly, it feels as though stalled developments surround us. Below are pictures of just a handful taken in the last few months near the Montgomery/Harris County border.

Royal Pines in Porter
Royal Pines in Montgomery County on White Oak Creek has flooded neighbors’ properties multiple times in the last six months. White Oak Creek actually rerouted itself across a portion of the development.
Royal Pines border with White Oak Creek (in woods). Note sediment escaping property into creek.
Royal Pines
After a 4-inch rain in January, White Oak Creek branched and started flowing across the cleared area.
Truck of Royal Pines neighbor one day after being washed. Flooding isn’t the only problem.

The neighbor stated that she spoke with the MoCo Engineers’ office last Friday and the stormwater detention plan still had not been approved. According to the neighbor, the developer was told by the county last January to submit revised detention and berm plans. The engineer also requested the developer to divert the runoff away from the neighbor’s property. But the developer evidently went ahead and built a detention basin without revising the plans. The development still floods neighbors’ property after every appreciable rain.

Los Pinos in Huffman

Phase I of Los Pinos in Huffman has sat virtually vacant for the better part of a year.

Saint Tropez in Huffman
Saint Tropez in Huffman, also vacant, drains into Luce Bayou.

Trailer Park in Hockley

New trailer park development in NW Harris County is sending sediment into the headwaters of Spring Creek. See below.

As you approach the creek, the slope increases…

…and despite the best efforts of the developer, sediment is escaping into the creek.
Hockley trailer park from ground
A river of mud…
Hockley trailer park from ground
…is flowing into Spring Creek.
Townsen Landing in Humble
A small part of Townsen Landing in Humble. The developer cleared land, but no homes have been built in the last year.
Valley Ranch in New Caney/Porter
Valley Ranch Medical Center construction in November 2021
20 months later they were building detention basins and channels to connect them. In March 2023, uncontrolled runoff was sending sediment into a ditch behind homes and businesses along FM1314.

Multiple Reasons for Development Delays

To do something about development delays, you need to understand the causes first. Those most often cited by developers and media have to do with:

  • Regulations. For instance, Magnolia officials enacted a moratorium on permit applications in December 2022 over concerns the city’s water supply couldn’t keep pace with growth in the area. The moratorium impacts new as well as current development projects.
  • Developers rank permitting delays as one of their biggest headaches.
  • Increasing land prices push developers into marginal, flood-prone land as a way to help control costs. But such land also causes permitting delays. Developers struggle with extra layers of studies and approvals from flood plain managers that can slow projects.
  • Rising interest rates that may undermine developers/builders economic assumptions.
  • Shortages of building materials. For instance, a global cement shortage, often linked to the war in Ukraine, makes planning difficult for land developers and road builders. According to a source at the Houston Contractors Association, Texas pours more concrete annually than the next two states (CA and FL) combined.
  • The pandemic, which led to other supply and labor shortages.

Such issues often loom larger for less experienced developers whose pockets may not be as deep as their more experienced competitors.

Regardless, silt fences are woefully inadequate in dealing with issues such as these.

Need to Re-Evaluate Construction and Permitting Practices

Some suggestions. Many areas do not require a permit to clear and grade land. Developers may begin the process assuming normal permitting time for their plans, but then run into unforeseen hiccups. As regulations have gotten more complex in the post-Harvey world, this has become increasingly common. Perhaps we need to require:

  1. Permit approvals before clearing and grading.
  2. Vegetated buffers around the perimeter of properties during development.
  3. Berms to protect neighbors and waterways during development
  4. Clearing and installing drainage in a portion of a property before moving onto another portion of the property (phased development).
  5. Governments throughout the region to standardize construction requirements.
  6. Governments to hire enough people to review plans a timely way.
  7. Some or all of the above.

Other ideas suggested by readers:

  1. Do not develop on land not suited for development in the first place.
  2. Stop developing so close to waterways.
  3. Zone land to allow natural drainage to exist in harmony with human occupancy.
  4. Keep some areas prone to flooding heavily vegetated permanently.

Half Billion Dollars for Sediment Removal

Sound expensive? Consider this.

Since Harvey, we have spent/plan to spend approximately a half billion dollars on dredging and sediment removal. Half of that has been spent on the East and West Forks of the San Jacinto, plus channels/streams around Lake Houston. The other half will be spent on sediment removal in:

  • Willow Creek
  • White Oak Bayou
  • Spring Creek
  • Little Cypress Creek
  • Greens Bayou
  • Cypress Creek
  • Barker Reservoir
  • Addicks Reservoir

We must find a compromise that works for everyone. People need places to live. Especially places that don’t flood.

Posted by Bob Rehak on June 7, 2023

2108 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 a Controversial, Little Understood Definition Affects Flooding

The definition of “Waters of the U.S.” (WOTUS) is changing again thanks to a new ruling by the U.S. Supreme Court. It could put half of the nation’s wetlands in peril and that could significantly affect flooding.

The Ping-Pong Match over Wetland Protection

I first started covering the definition of WOTUS in January of this year in a story about Biden’s changes to Trump’s changes to Obama’s changes.

The WOTUS definition defines the areas subject to EPA clean water regulations. 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?

Clarity is a good thing. But the last time I looked up WOTUS, the definition stretched for more than 100-pages. It has changed numerous times since 2015. And different government agencies follow different definitions. Complexity, change, ambiguity and conflict now give bureaucrats and developers almost unlimited power to interpret definitions as they see fit.

Local Example of Damage

For instance, when the developers of Woodridge Village clearcut their property, filled in wetlands and sent tons of sludge down Taylor Gully into Lake Houston, the question became “Were they acting legally?” The developer found no wetlands on their property even though wetlands were clearly indicated on the USGS National Wetlands Inventory.

Complaints piled into the EPA and Army Corps of Engineers. The Corps found that, even though the property contained wetlands, the wetlands lay outside the jurisdiction of the Corps to regulate.

Resident examines massive erosion on Woodridge Village flowing down Taylor Gully into Lake Houston in 2019.

Bureaucratic Overreach?

The Trump-era definition, finalized in 2020, was long sought by developers who complained about federal overreach. They said the WOTUS definition stretched into gullies, creeks and wetlands on private property.

But Biden reversed the Trump definition and now the US Supreme Court has reversed the Biden definition. That makes the fourth time the rules have been reversed since 2015. Worse, the EPA and Corps use overlapping, but different rules.

And as far as I can tell, the limit of regulation does not vary with the magnitude of violation, a serious flaw in my opinion.

NYT Article Puts Most Recent Changes in Perspective

A New York Times essay by Jim Murphy of the National Wildlife Federation summarized the most recent changes. Says Murphy, “The Environmental Protection Agency has long interpreted the Clean Water Act as protecting most of the nation’s wetlands from pollution. But now the court has significantly limited the reach of the law…”

The Court’s new definition hinges on the wetlands having “a continuous surface connection” to bodies of water such as streams, rivers, lakes and oceans. At least half of the nation’s wetlands could lose protection under this ruling, which provides an even narrower definition of “protected waters” than the Trump administration had sought, according to Murphy.

Congress has long failed to clarify language in the Clean Water Act that caused confusion among judges and put the law in the Supreme Court’s cross hairs.

Wetlands are nature’s sponges. They act as natural detention basins that hold back stormwaters and that has a direct impact on flooding.

Justice Brett Kavanaugh, who filed a concurring opinion in the judgment, acknowledged its impact, writing that it would have “significant repercussions for water quality and flood control throughout the United States.”

How Revised Definition Could Affect Local Development

Need an example. Look no further than the Colony Ridge development in Liberty County, where the developer is filling in and paving over wetlands…some immediately adjacent to wetland mitigation banks.

Colony Ridge Wetlands
Colony Ridge Wetlands
Colony Ridge wetlands being drained for development.

Many residents in adjoining communities such as Plum Grove and Huffman have complained bitterly about worsening flooding in their areas, which they attribute to such development practices.

I hope Congress can finally find a workable definition of WOTUS that protects public safety while allowing responsible development. The constantly changing definitions of WOTUS help no one.

Posted by Bob Rehak on 5/31/23

2101 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.

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.