Tag Archive for: fill

Concerns About Fill Height in New Atascocita Development

10/27/24 – Meritage Homes of Texas LLC has placed an estimated 5 feet of fill above street level in Phase 1 of its new development in Atascocita. The height has raised concerns among surrounding residents, who fear that runoff from the Meritage site could flood them.

Meritage Site Phase 1 fill bordering Texas Laurel Trail. Height of curb and silt fence = 2 feet. Top of fill is minimum 2.5X higher or 5 feet. Most surrounding homes are elevated about knee high above street level.

It’s hard to see the interior of the site from street level. That has fueled residents’ fears. Virtually all surrounding homes are knee high above street level, not head high, as here.

In February, I received preliminary construction plans and a drainage analysis from Harris County Engineering. But they had numerous problems and were not approved.

So, I can’t say for certain whether the fill is needed or whether it will raise flood risk in surrounding neighborhoods. Similar disparities have flooded homes elsewhere, so residents have cause for worry.

However, it appears that the developer is sloping the land toward a detention basin on the far side of the property (out of sight behind the car and ridge above).

Aerial photos taken today show distinct tiers in the landscape leading down to the detention basin. (See below.) So, runoff should be channeled away from Kings Park Way, Texas Laurel Trail and parts of Pinehurst Trail Drive.

Photo with car above was taken from other side of pipe in background of this photo.

Why So Much Fill?

Meritage, based in Scottsdale, Arizona, began clearing and grading 40.2 acres between Kings River and Pinehurst of Atascocita in February this year. Shortly, thereafter, it began excavating the detention basin for Phase 1, shown below.

Land on left slopes toward detention basin. Photo taken 10/27/24.

At first, I thought the fill might have come from the detention basin on the property. After Harvey, changes made to City and County building codes require a minimum .65 acre feet of stormwater detention per acre.

Meritage exceeds the minimum. But calculation shows that the amount of fill excavated would have only raised the rest of Phase 1 (the area outside of the detention basin) by approximately 1-2 feet, not 5. Plus multiple residents independently reported seeing trucks bringing fill into the location.

I could find no reference justifying the depth of fill in the preliminary plans supplied by Harris County Engineering.

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Future site of 200 homes by Meritage.
Conceptual plans that Meritage shared with surrounding communities earlier this year. They show one detention basin in Phase One and three in Phase 2.

I have requested the final, approved plans from Harris County Engineering, but still have not received them.

Building Codes Also Require 2 Feet Above 500-Year Floodplain

Post-Harvey building codes also require new structures to be built two feet above the 500-year water-surface elevation. But the Meritage development is not close to a mapped floodplain. So that’s not the likely cause for the all the fill.

Future site of 200 homes by Meritage is out of floodplains.
From FEMA Flood Hazard Layer viewer. Meritage development is about a half mile from the current mapped 500-year floodplain (tan color).

Protecting Neighbors

What should the developer do to ensure surrounding properties are not flooded by runoff?

As a rule, the engineer who prepares civil plans for the development must include drainage area maps and account for all runoff generated by the subdivision. This would include everything up to extreme 100-yr storms. 

So, Meritage’s drainage plan should account for all that fill and capture flows before they impact adjacent properties.

In general, the size of the detention basin is a positive thing. But the height of the fill it generated during excavation has the potential to flood surrounding homes – if not handled properly.

More news to follow when/if Harris County reveals the construction plans and drainage analysis.

On a sad note, many of those trees along the perimeter next to the fill may die. Putting too much soil over tree roots can suffocate them and cause tree damage or death.

Excess fill may smother tree roots around perimeter of site.

Posted by Bob Rehak on 10/27/24

2616 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.


Flood-Mapping Changes Recommended to FEMA

On October 30, 2023, the Technical Mapping Advisory Council (TMAC) recommended that FEMA implement six flood mapping changes. The objectives:

  • Reduce the number of uninsured losses
  • Reduce future flood losses compared to maintaining the status quo
  • Improve transparency around the potential impacts of climate change and proposed development

SFHA and FPA Definition Recommendations

FEMA currently defines a Special Flood Hazard Area (SFHA) as land “subject to a 1 percent or greater chance of flooding in any given year.” The SFHA may contain several different zones that show different degrees of risk. Historically, FEMA has equated the SFHA with “floodplain” or “flood-prone area” (FPA).

TMAC recommends redefining these terms to give them different meanings. TMAC also recommends using a higher standard of accuracy (95% confidence level as opposed to 50%), but more on that later.

If FEMA adopts the recommendations, the term “Special Flood Hazard Area” would apply to areas that currently require flood insurance for mortgages made by federally regulated lending institutions.

The term Flood-Prone Area, on the other hand, they argue, should be reserved to reflect future risks from climate change and development. See below.

Why separate the two? Lenders would face resistance to enforcement of the insurance-purchase mandate if it meant requiring flood insurance on homes or businesses not yet in the 1-percent-annual-chance floodplain.

But having a separate, second definition that reflects future risk could help floodplain managers lower the probability of future flooding for homes under construction by applying to building codes, elevation requirements, and more. It could also give home buyers additional information on which to base their decisions.

Recommendation for Higher Confidence Limits

Because of a perceived rise in flood occurrences on properties lying outside the SFHA, the lending community has become more suspicious of the standard’s accuracy. People see the SFHA’s flood insurance requirement as a binary choice. “I need it or I don’t.”

But the current definition is based on the AVERAGE chance of flooding. That means 50% of properties would have a higher risk than indicated and the rest would have a lower chance.

After a flood, surprised borrowers sometimes blame their mortgage companies. “How come you didn’t tell me I was at risk?” Many buyers conclude they are safe based on a misunderstanding of technical details related to the 1% annual-chance standard.

The new standard proposes a 95% confidence interval as opposed to an average risk. That would include homes expected to flood in all but 5% of floods. A confidence interval in statistics is another way to describe probabilities.

TMAC argues that an easily understood and interpreted standard would balance safe land use with economic benefit. It would also protect lenders, educate buyers, and encourage borrowers to act responsibly.

Redefining Flood-Prone Areas

The illustration below depicts TMAC’s concept for developing the FPA elevation and associated boundary. It includes an extra safety margin for climate change and future development.

This “freeboard factor” would be a proxy for estimated future conditions.

However, TMAC recognizes there may not be:

• Adequate land-use information to determine the impact of future development or
• Planned development expected to change flood conditions or
• Sufficient information to determine the impacts of climate change.

0.2% Annual Chance Flood Recommendations

For consistency and ease of communication/education, TMAC recommends applying the 95% confidence limit to .02% annual chance floods also. These were previously known as 500-year floods.

Fill Recommendations

Bringing fill dirt into a floodplain to elevate homes reduces the amount of storage capacity for floodwaters. Fill can also often increase hazards to nearby property owners and have negative environmental impacts.

Currently, a maze of regulations governs the use of fill. TMAC recommends consolidating and clarifying all fill requirements in flood-prone areas.

Among the recommendations: Prohibiting fill as a floodproofing technique.

Notice of Fill Impacts

TMAC recommends that FEMA should require participating communities, as part of permitting duties, to quantify and put on file the impacts of proposed fill and other development on flood height and the environment prior to issuing fill permits.

When increases in flood elevation or potential negative environmental consequences are found and cannot be mitigated, at a minimum, property owners and appropriate environmental agencies should be notified prior to issuing permits.

Many such requirements already exist for floodways. This recommendation would expand the requirement to floodplains.

The TMAC report observes that large amounts of fill placed in the flood fringe can potentially create significant impacts upstream, downstream or both. But there are no impact notification requirements in many communities and states.

“This is in effect a risk transfer to uninformed landowners and environmental stewardship organizations,” says the report.

“While a requirement to notify falls short of a requirement of consent, it is an improvement over today’s framing where risks are allowed to be transferred to others without their awareness.”

TMAC

Status of Adoption Unclear at this Point

Due to the holidays, I’ve had trouble determining where FEMA stands in adopting these recommendations. TMAC clearly labels these “interim recommendations.”

Congress plans to take up the subject of flood insurance in January or February. So we may get some clarity then. Check back often.

The problem with proposed changes to regulations is that they create winners and losers. People with risky land to sell may not want fuller disclosure. On the other hand, those in danger of flooding may want more information.

The states seem divided on flood-insurance reform. Some want to continue encouraging floodplain development by keeping NFIP premiums low. Others want to avoid burdening taxpayers with NFIP bailouts. They claim higher premiums help avoid development of flood-prone land.

It could take years to find suitable compromises. In the meantime, buyers beware. Perhaps TMAC’s recommendations will help improve awareness.

Posted by Bob Rehak on 12/27/2023

2311 Days since Hurricane Harvey


RV Resort Pumping Stormwater Into Edgewater Park, Bringing in Fill

Lakewood Cove residents reported yesterday and today that contractors at the Laurel Springs RV Resort are pumping stormwater from their detention pond into Precinct 4’s Edgewater Park. The reports are true. And it’s a permit violation.

I also found contractors bringing in fill from the outside that I thought was going to be “cut” from the detention pond. All photos below were taken on 1/18/22.

Pumping From Pond onto Neighboring Property

The approved permit plans clearly state that “Stormwater runoff shall not cross property lines.”

Stamp on many pages of approved Laurel Springs RV Resort plans.

I guess at some point the water in the pond ceased being runoff. Now it’s just a nuisance. The plans said pond water would be pumped into the City storm sewers. Hmmmm.

Photographed from Laurel Springs Lane looking west.
Here’s an aerial photo looking toward Laurel Springs Lane.
Check out all the muck being washed into the woods. Those woods belong to Harris County Pct. 4. That’s part of new Edgewater Park.

Note the lack of silt fences in the two photos above. Plans clearly state that silt fences will be installed to keep silt from escaping the property. Double Hmmmm!

Bringing in Fill instead of Moving It From Within the Site

As I photographed the pumping, I noticed a parade of dump trucks bringing in fill, dumping it, and leaving as a bulldozer spread it out and another machine quickly compacted it.

Looking NW toward Lowes in top center. Note dump truck depositing fill – one of many that I watched.
The area where they deposited fill just north of the pond corresponds to the plans. See below.
Detail from mitigation plan showing NW corner of pond and fill area. For full plan, click here.

From text on the image above, I assumed that the job was to be a routine “cut and fill” operation. Maybe I shouldn’t have assumed.

Cut and Fill is an industry standard in floodplains. It means you move dirt from one part of the site to another. So, there is no additional fill brought into the floodplain. The fill area above appears to be in the .2% annual chance floodplain, according to the old FEMA map below. However, the developer did not mark the .2% chance floodplain on plans.

FEMA floodplain map. Aqua = 1% annual chance. Brown = .2% annual chance. It appears the northern part of the detention pond (not shown on this old satellite image) cuts between the aqua and brown areas.

For the record, Chapter 19 of Houston’s Code of Ordinances currently does not prohibit bringing fill into the .2% annual chance floodplain. See Section 19.34.

Posted by Bob Rehak on 1/18/2022

1603 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.

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.