Tag Archive for: legislation

Three Baby Steps on Sand Mining Legislation

After Harvey, it became clear that the simplest and most effective way to avoid sedimentation due to sand mining, was to prevent any new sand mining in the floodway. State Representative Dan Huberty introduced three new bills to toughen legislation on sand mines yesterday. But these bills never mention words like river, setback, buffer zone, erosion, sediment, or floodway.

What the Bills Do

HB 907 – Doubles the penalties for not registering a sand mining operation. New penalties can range from $10,000 to $20,000 per year with the total not to exceed $50,000.

HB 908 – Provides for penalties up to $50,000 for water code violations by sand miners and every-other-year inspections by the TCEQ.

HB909 – Calls for the TCEQ to adopt and publish best management practices for sand mines (aggregate production operations) that comply with applicable environmental laws and regulations.

Good…As Far as They Go

HB 907

…is actually an amendment to the portion of the water code that HB 571 established in 2011. HB 571 targeted unregistered and, therefore, unregulated sand mining operations. If you search back through historical satellite photos of the West Fork between I-45 and I-69 in Google Earth, you can see several such bandit mining operations. Miners would take a backhoe and a dump truck down to a point bar. Then they would start mining sand right out of the river banks. The scars can still be seen today in many places.

I haven’t seen many instances, though, of these kinds of operations in the satellite images since the passage of HB 571 in 2011. That’s good news. But it makes me wonder whether the emphasis on un-permitted operations is misplaced. Most problems come from permitted mines, not un-permitted. So this makes it appear as though we’re putting teeth into mining regulation without really solving the big problems, such as mining in the floodway, breached dikes that remain open for years, and abandoning mines without any reclamation.

HB 908

…specifies that all mines will be inspected at least once every two years to ensure that they comply with “all applicable environmental laws and regulations.” The problem: nowhere does the law (or the TCEQ) specify what those are. So a canoeist, for instance, who spots something suspicious, like a backhoe intentionally letting sediment-laden water out of a mine, has no way to tell if the activity is legal or illegal.

One can spend days searching the TCEQ website looking for the regulations they are supposed to enforce.

Sand mine dike just five weeks after a breach.

Also, every-other-year inspections give grass 730 days to grow and cover up the evidence of breaches in sand mine dikes.

Imagine telling your kid to clean up his or her room; you’ll be back to inspect it in two years.

HB-909

… is a good first step. It directs the TCEQ to establish a set of best practices for sand mining and to publish them. However, the bill does not stipulate the type of best practices to include. Nor does it stipulate any penalties for non-compliance.

It’s like the State telling Porsche owners that those 20 MPH speed limits in school zones are a “good idea.”

Bill McCabe, a member of the steering committee of the Lake Houston Area Grass Roots Flood Prevention Initiative, had this to say. “If they don’t list the BMP’s in the statute, nor authorize any penalties for violation of these BMP’s, what good does this do us?  The TCEQ will merely adopt something similar to your BMP’s (the ones I proposed last year); TACA will agree; and everyone will go their merry way with no changes in sand-mining operations.  If we later complain, TACA will assert that these are merely suggestions, and not intended to be law. And even if they are law, there are no penalties.

The Appearance of Meaningful

As these bills work their way through committees and the legislative process, residents will have opportunities to testify about their Harvey experiences, provide comments on the bills, and suggest amendments to strengthen them.

But at this point it looks like an uphill struggle. We’ll be lucky to see any truly meaningful legislation in 2019.

TACA Should Be Delighted

TACA, the Texas Aggregate and Concrete Association, will be delighted by these bills. If these become law in their present form, they will create the appearance of protecting people. That could undermine momentum toward regulation that reduces sedimentation.

As always, these are my opinions on matters of public policy protected by the first Amendment of the United States Constitution and the Anti-SLAPP statute of the great state of Texas.

Posted by Bob Rehak on 1/18/2019

508 Days since Hurricane Harvey

First Proposal to Improve Sand-Mine Regulation in House

On December 11, 2018, Texas State Representative Terry Wilson introduced HB509. HB509 is a bill to regulate aggregate production operations (APOs). APOs include sand mines.

HB509 Stipulates Consideration of Hydrologic Impact During Permitting

Currently, sand mines in Texas are permitted and inspected by the Texas Commission on Environmental Quality (TCEQ).

New legislation proposed by Representative Terry Wilson of Marble Falls would require regulators to consider hydrologic impacts of sand mining during the permitting process.

HB509 enables the Texas Railroad Commission to work with the TCEQ; adopt, amend and enforce rules pertaining to aggregate production operations; issue and revoke permits; and inspect APOs without notice. It also:

  • Creates criminal penalties for non-compliance.
  • Requires a hydrology assessment of the operation’s impact on surrounding surface and groundwater – including water availability.
  • Enables regulators to consider the cumulative impact of multiple APOs in an area when evaluating new applications.
  • Requires the operation to prevent material damage to the hydrologic balance outside the permit area.
  • Requires public notice of permit applications
  • Provides for public comment on permit applications
  • Makes permit approval contingent on past performance
  • Requires permitting agencies to publish the public comments
  • Allows the agencies to deny permits based on public comments
  • Grandfathers operations with existing permits

New Fines and Creation of a Criminal Offense

A person commits an offense if the person “knowingly makes a false statement, representation, or certification, or knowingly fails to make a statement, representation, or certification, in an application, record, report, or other document filed or required to be maintained under this chapter or under an order of decision issued by the commission under this chapter.”

Violators may be punished by fines of up to $10,000 and a year in prison.

Positives of HB509 from Residents’ Perspective

While this bill will not immediately and directly address sand-mine issues on the San Jacinto, I think it could eventually help this area. Things residents will like include:

  • Significant penalties for false statements!
  • Having more eyes on the problem; TCEQ complains that it doesn’t have enough staff to enforce regulations.
  • River-impact assessments, especially the idea of looking at the cumulative impact of all providers in the area! Twenty square miles of sand mines between US59 and I-45 on the West Fork have decimated the environment immediately upstream from the drinking water source for 2 million people.
  • Public hearings for permits. Right now, regulators hear one side of the story.
  • Making the permit application approval contingent on past performance. This gives sand miners the ultimate incentive to comply with regulations: “Don’t comply and you’re out of business in this state.”

Shortcomings From Residents’ Perspective

Things residents probably won’t like include:

  • Grandfathering existing operations; the cumulative impact of sand mining is already a huge problem on the San Jacinto. However, I’m not sure a fair alternative exists, short of buyouts.
  • Lack of definitions for what they’re trying to prevent under “hydrologic impact.” That creates flexibility to cover unforeseen consequences, but also leaves a huge “out.” HB571 in the 2011 session, the first bill to regulate sand mining in Texas, also lacked specificity. It said for instance that the mines had to comply with all applicable laws and regulations, but did not specify what they were. It left lots of wiggle room. This could, too.
  • No prescription for minimum setbacks from rivers or prevention of mining in floodways.
  • Use of the words “designed to” in front of hydrological impacts. That creates a big “out.” Anybody who places a bale of hay in drainage ditch on the mine could say he designed the drainage to prevent erosion, However, the real issue is what happens when the river reroutes itself through mines during a flood.

Lack of Specificity Concerning Hydrologic Impact

My biggest concern is the lack of specificity re: adverse hydrologic impacts. No references exist in the bill to:

  • Dangers of river migration
  • River capture of sand pits
  • Draw down of the water table
  • Effects of such drawdowns on surrounding vegetation and farms
  • Repeated breaches of dikes
  • Increases in rates of sedimentation
  • Loss of downstream lake capacity at increasing rate
  • Poor water quality
  • Loss of river conveyance
  • Increases in erosion
  • Escape of chlorides from wash pits during floods
  • Contamination of groundwater and wells by chlorides
  • Pipeline corrosion
  • Loss of riparian vegetation
  • Downstream flooding
  • Eventual need for dredging and other costly remediation.

All in all, though, it’s a good start and can only help curb the excesses of sand mining in the long run.

Read the bill in its entirety. Here is the current text of proposed House Bill  509 for 2019.

About Congressman Terry Wilson

Congressman Wilson represents the area west of Austin. His district includes Burnet, Milam and Williamson Counties and the cities of Round Rock and Marble Falls. His web page in the House of Representatives states that he was born in Odessa, Texas, and that “He is a lifelong conservative Republican, committed husband and father, and a decorated combat veteran. He holds a BS in Business Administration from Texas A&M University and an MS in Strategic Logistics Plans and Management from the Air War University.”

Wilson retired from the Army after serving more than 30 years. Since retiring from the Army, he has leveraged his military experience as an advocate for small businesses.

No Other Bills Filed in House or Senate So Far

Neither Representative Dan Huberty, nor Senator Brandon Creighton, have so far introduced any new legislation affecting sand mining. Wilson’s HB509 appears to be the only bill regulating sand mining filed so far in either the House or Senate as of Christmas Eve, 2018.

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

Posted by Bob Rehak on 12/24/2018

482 Days after Hurricane Harvey

99% Solutions to a 1% Problem Are No Solutions at All

Today, I read a scientific article that talked about 99% solutions to 1% problems. It hit me between the eyes with the force of a freight train. It was written 30 years before Hurricane Harvey for a 1987 symposium sponsored by the U.S. Navy called Sedimentation Control to Reduce Maintenance Dredging of Navigational Facilities in Estuaries.

“SESSION A: SEDIMENT SOURCES AND TRANSPORT PROCESSES”  made months worth of arguments, complaints and frustrating meetings suddenly fall into sharp focus. I quickly realized our problem.

I can’t post the paper here for copyright reasons. So I will link to it and quote brief passages in a review. The author was Ronald J.Gibbs, Center for Colloidal Science, College of Marine Studies, University of Delaware.

His paper begins by looking at the largest rivers in the world and rank ordering them by their discharge (flow) rates. He then talks about factors that influence sedimentation, such as soil types, river gradient, and weather events. 

Rare Weather Plays Mammoth Role in Sedimentation

In case after case, extreme weather played a hugely dominant role in sediment transport. For instance…

…in one storm on the Delaware River, a two day discharge represented three full years of average discharge.

An even more spectacular example: a storm struck the Eel River in California. “In a three day period, the Eel River carried more sediment past Scotia, California than it had during the previous seven years.”

“In ten days, the transport was equivalent to the previous ten average years.”

“To put this into perspective, the total suspended discharge for the Eel River was 168 million tons that year, which compares with the 184 million tons carried by the Mississippi River past St. Louis during the same year.” I had never even heard of the Eel River, so this caught my attention. 

Difficulty of Measuring

The authors’ point: This tremendous variability, occurring over a period of many years, is exceedingly difficult to sample and to understand because it is normally very expensive to prepare for sampling these types of rare events. However, sudden events are extremely significant in terms of quantity of sediments discharged…”

A Storm Like Harvey 

Another example: the Susquehanna, which flows south through eastern Pennsylvania before entering Maryland and Chesapeake Bay. Gibbs referenced another study that estimated sediment discharged in one week (June 22–28, 1972) during a major storm. “The Susquehanna River probably discharged greater than 50 x 10(6) metric tons of suspended sediment than had been discharged during the past three decades, and probably even during the past half century.” 

50 million more tons of sediment in one week than during the previous fifty years!

Annual Patterns Follow Extremes, Too

Gibbs looked at both extremely rare events like this and typical annual patterns. He found that,

“During 1 percent of a year (3.6 days), most rivers discharge better than one-half to two-thirds of their sediments for that year.”

These observations illustrate how important rare events are in transporting sediment. Gibbs says, “They dominate deposition over many years and greatly affect dredging and shoaling activities.”

I knew that most sediment transport happened during floods. But I until I read this study, I did not understand how extreme the disparities between normal and flood transport were.

Implications for Regulators and Legislators

Suddenly, the tumblers clicked into place. I understood why the Brown & Root study quoted sediment transport figures for the West Fork, Spring Creek and Cypress Creek, and then told people to ignore them; they measured suspended solids when the streams were moving only at about 60 cfs, not 131,000 cfs as during Harvey. 

Suddenly, I also understood how TACA, the TCEQ and state legislators could conclude that mining in floodways was OK. They look at the 99%, not the 1%. But the 1% is when all the damage occurs.

As a business person, I might have made the same mistake. Conventional wisdom dictates that you design systems for the 99%, and that you’ll go broke chasing that last 1%. Or more to the point, the last .2%.

Design for Disaster: The 1% Solution

Very few industries design for extreme events. In the airline business, the cost of a crash is unthinkable. Nuclear power plants simply cannot go out of control.  Every pacemaker has to work. For almost everything else, 99% success gets you a nice Christmas bonus and a promotion. But when the cost of failure is a major portion of the nation’s fourth largest city…

As a legislator, you listen to the carefully crafted arguments of TACA and say to yourself, “This was a force majeure event, an act of God. We can’t ask them to design their mines for that. They’ll go broke!” And you never stop to think, “Yes, I can. No, they won’t. It’s simple. I ask them to move out of the floodway. It doesn’t cost them a dime out of pocket. They just don’t mine so close to the river.”

At least you don’t realize it’s that easy until the sediment sent downstream by Hurricane Harvey dams the river and contributes to wiping out 16,000 homes, 3,300 businesses, a college, a high school, a hospital, a fire station, entire subdivisions, and entire shopping centers. Repairs for all of the above also wiped out billions in equity, college funds and retirement savings.

We Need to Fix A Business Model that Destroys Growth

If that doesn’t move you, consider that it also slowed the growth of an area from 6% to 1%. That’s what happened in the Humble ISD right after voters approved a  $575 million bond referendum.

Attention: governor, developers, aggregate producers, concrete manufacturers, legislators, mayors, city council members, county commissioners, chambers of commerce, do you really want to bet on a business model that destroys growth?

Sometimes, it makes more sense to think of the 1% solution than the 99%. This is one of those times. In fact, the 1% is the ONLY thing we should be focusing on as we consider legislation to fix the broken sand mining model. What good is building cheap roads if you drive residents to move out of state?

These are my opinions on matters of public policy and protected under First Amendment of the U.S. Constitution and the Anti-SLAPP statute of the Great State of Texas.

Posted by Bob Rehak on 12/16/2018

474 Days since Hurricane Harvey

How to Protect Yourself from Flooding Due to Sand Mining

It’s hard for me to write this because I hate government regulation. But when an industry acts so irresponsibly in the pursuit of profit that it endangers my safety, my family, my property, and my community, I will fight to regulate it. I am at that point now with the Texas Aggregate and Concrete Association, which represents sand miners. 

The Problem

During Harvey, 131,000 cubic feet of water per second raced down the West Fork … through approximately 20 square miles of sand mines … located in the floodway … below a major dam … in a subtropical climate … prone to hurricanes and torrential rainfalls … where floods would blow through dikes made of sand … and reroute the river through the center of mines. (I’m guessing the Safety Committee was overruled.)

As a result, an abnormally large amount of sediment washed downstream; clogged rivers, streams and ditches; and helped create massive sediment dams. Those dams contributed to the flooding of thousands of homes and businesses with water contaminated by sewage when treatment plants were also overwhelmed. 

I don’t care how much TACA contributes to the economy or politicians. The flooding they helped create cost Kingwood College $60 million, Humble ISD $100 million, TexDoT $20 million, homeowners billions, businesses billions more, retirees their savings, and taxpayers $70 million for dredging. But worst of all, it cost 13 people their lives and endangered the life of my community. Forty-four percent of the businesses in the Lake Houston Area Chamber were damaged due to the flood.

Moreover, we have not yet begun to tally the long-term health costs of wading through floodwaters contaminated with sewage and years spent repairing moldy homes while trying to live in them.

The river took a shortcut through this West Fork mine during Harvey, blowing through dikes and roads as it carried sediment downstream. In other mines, it even swept away stockpiles.
The sediment swept downstream contributed to the growth of massive sandbars like this one that almost totally blocks the West Fork where it meets Lake Houston. As much as ten feet was deposited in this area during Harvey (five below water/five above). It continues to back water up throughout the Humble/Kingwood corridor.

If you want more responsible sand mining, the time to fight for it is now. 

Remember the Most Important Thing

 To reduce sediment during floods, move sand mining out of the flood plain. This should not be a huge economic burden. Houston became the fourth largest city in America overnight without sand mines in the floodway of the San Jacinto. 

The Solution

  1. Start with your state senator and state representative. Urge them to sponsor legislation that:
  2. Contact friends and relatives in other parts of the state. Urge them to do the same with their representatives and senators. Let them know that without their support, the homes, lives, businesses and health of their constituents could also be endangered by the same irresponsible business practices. It’s good to be business friendly, but not good to be resident hostile.
  3. Contact the heads of the transportation committees in the House and Senate. Contact Governor Abbott and Lieutenant Governor Patrick. Urge them to demand that TexDoT refrains from purchasing any sand produced in floodways. TexDoT is the miners’ biggest customer.
  4. If they refuse to support legislation that enforces responsible operation of sand mines, ask if they will support a progressive tax on sand mines.  The tax would be based on their distance from the river. The further from the river, the lower the tax. Set the tax so that mining in or near a flood plain becomes disadvantageous and mining outside of the flood plain creates a cost advantage.
  5. Contact other groups or associations that you belong to that may have lobbying efforts in place that could help. We need allies to counteract the millions that TACA has spent on lobbying and political contributions. For instance, is your insurance through USAA? They have an active lobbying effort and the flooding affected them adversely. They would form a natural ally. Look for similar allies – through your work, your church, your bank, your trade associations, insurance company, or environmental groups you support. You can bet TACA is doing the same – with developers, contractors and their trade associations. 
  6. Ask your local city council and county representatives to endorse your efforts. Sad to say, but a letter or call from them counts more than letters from an ordinary citizen.
  7. Put extra effort against committee chairs in the State Senate and House. They have seniority and clout. If this comes down to “scratch my back and I’ll scratch yours” at the end of the session, their influence could make the difference.

Keep track of your efforts. If you are so inclined, let me know about them. I will tabulate the results and publish them periodically. 

Some Tips

  • Start a grass roots movement in your neighborhood, church or club. Reach out to friends, neighbors and relatives – especially those who flooded.
  • Personal letters count for more than form letters.
  • Be polite.
  • Tell them how flooding personally affected you and why you feel regulation is important.
  • Emphasize that what happened here could happen anywhere in the state and that mining in floodways is not necessary for economic growth. 
  • In fact, it can contribute to flooding that causes people to move away.
  • Tomorrow I will post fact sheets for your reference on key issues related to sand mining and their role in flooding. Refer people to them.

This battle will not be won or lost because Dan Huberty or Brandon Creighton endorse it. It will be won or lost in places like West Texas and North Texas that don’t often flood. The majority of the votes live there. So cast a wide net. Remember: silence is an endorsement of the way things are now. If you want change, let others know. Speak up now.

As always, these thoughts represent my opinions on matters of public policy. They are protected by the First Amendment of the United States Constitution and the Anti-SLAPP Statute of the Great State of Texas.

Posted by Bob Rehak on December 13, 2018

472 Days after Hurricane Harvey

ReduceFlooding.com’s Recommendations for the 2019 Legislative Session

 As we approach the next legislative session, we have a rare chance to pass meaningful legislation that could reduce sedimentation from sand mining. Such legislation has been defeated repeatedly in the past by lobbying efforts of the Texas Aggregate and Concrete Association (TACA). TACA has spent millions to lobby against regulations that protect downstream citizens and property.

How Texas Fails to Protect Citizens & Property

Did you know that Texas, unlike other states and countries:

At the moment, people still hurt from Hurricane Harvey. By the next legislative session in 2021, the energy required for regulatory reform may die. The time to do something is now if we are going to do it. But what to do?

There are approximately 20 square miles of sand mines upstream from the Lake Houston area on both forks of the San Jacinto. 

ReduceFlooding.com Recommendations 

After studying government regulations and scientific literature from around the world for a year, I have concluded that citizens need three things to protect themselves from the ravages of Texas sand miners. The legislature needs to:

  1. Publish and enforce best management practices for sand mining that bring Texas standards up to those common in the rest of the country and the world. Among them, prohibit mining in erosion hazard zones. The water supply for two million people deserves nothing less.
  2. Put some teeth into penalties for non-compliance. Mines have left dikes unrepaired and open to the river for years without fines. Yet TCEQ fines average about $800 in the seven years since HB571. That’s a slap on the wrist and no meaningful incentive to change business practices.
  3. Establish a water protection district for the San Jacinto, such as the John Graves district on the Brazos. It pushes mining back beyond the 100–year flood plain and makes miners post a performance bond that ensures reclamation of the property when they are done mining.

TACA Recommendations

Not surprisingly, TACA has a different set of recommendations. See the full text here.

Instead of moving farther back from the river, they are lobbying to move INTO the river.

To “mitigate adverse impacts of sedimentation associated with flooding,” the association proposes:

  1. Building sand traps in the river that would allow them to mine river sand in exchange for payments to the SJRA.
  2. Selective dredging of impacted areas.
  3. Converting sand pits to a network of off-channel floodwater storage structures to mitigate flooding. 
  4. Letting land conservancies turn abandoned mines into wetlands or natural areas for wildlife habitat preservation.

Discussion of Differences

The ReduceFlooding.com recommendations would prevent damage from excess sedimentation currently attributable to sand mines.

TACA recommendations might help – in some cases – if miners actually implemented them. And if they followed best practices in doing so.

But those are big “IFs.” Nothing in TACA’s proposals actually obligates them to do anything. 

Sediment Traps

They say only that the option “can be” implemented, not that they will implement it. They also don’t specify what the traps are. While meeting in Austin with TACA, the TCEQ and legislators two weeks ago, I asked and got three different answers from three different people. They basically wanted to mine sand bars in the river adjacent to their property. However, river mining has proven so damaging in other parts of the world that it is outlawed in many countries, including most of Europe. 

“Selective” Dredging

Sounds good. But note the qualifier “selective.” Who selects? When KSA asked mines to remove the sand deposited in River Grove Park, no mine would take it. They said it was unsuitable for sale. And that’s the same kind of sand and sediment found in the mouth bar.

So is this offer an empty promise? I suspect it is. I’ll believe it when I see these words in print: “We promise to dredge the mouth bar at our expense.”

In the meantime, I will keep wondering. How will they get sand 10-20 miles upstream and make it cost competitive with the sand that they take from  their mines? It’s a pipe dream, no pun intended –

Off-Channel Floodwater Storage  

Note that they have committed only to developing a strategy. They say the lakes “could be” cost effective, but the Texas Water Conservation Association disagrees. The TWCA says that this strategy relies on pumps which cannot move water fast enough during floods. They also explicitly state that this approach is not cost effective. See page 10 of their report on Flooding in Texas.

Donating Abandoned Mines

Donating abandoned mines to land conservancies? Basically, they’re donating  liabilities (i.e., their obligation to reclaim mines) to a third party. 

We Need Promises, Not Puffery

In closing, TACA claims their recommendations will cost taxpayers NOTHING. Maybe TACA thinks Mexico will pay for everything. Or maybe they think they won’t have to do anything after this legislative session.

Before closing, TACA pats itself on the back. They claim, “As an industry that is focused on stewardship of our natural resources…we stand ready to work together with all stakeholders…”  

In my opinion, that’s where the BS gets nose deep and the English language – our currency of communication – is devalued to ZERO. I’ve met with these people three times (including the trip in Austin) and…

In six months, they haven’t once made any solid commitments to changing the way they do business in order to protect downstream residents and businesses. They haven’t even discussed it.

They just keep making the same empty promises in an attempt to delay any meaningful discussion of issues past legislative deadlines. This paper makes them appear positive when, in reality, their current business practices have contributed to the destruction of billions of dollars of property and helped undermine the infrastructure of entire communities.

Tomorrow…more about how you can help if you wish to get involved.

These are my opinions on matters of public policy, protected by the First Amendment of the United States Constitution and the Anti-SLAPP statute of the Great State of Texas.

Posted by Bob Rehak on December 11, 2018

470 Days since Hurricane Harvey