Tag Archive for: property rights

How Soon We Forget!

How soon we forget. Hurricane Harvey was just 4.5 years ago. Since then I have documented dozens, if not hundreds of questionable practices that erode margins of flood safety.

It Didn’t Have to Be That Bad

Harvey was the largest rainfall event in the history of North America. However, with better regulations and construction practices, it didn’t have to be as destructive as it was.

  • Lax regulations;
  • Willful blindness;
  • Development and construction practices that pushed the safety envelope;
  • Relentless destruction of forests and wetlands near rivers and streams;
  • And homebuyers who didn’t realize their true flood risk…

…made Harvey’s destruction worse than it otherwise would have been.

No one factor by itself would explain Harvey’s destruction. But put them all together, and it’s like “death of a thousand cuts.”

The sheer volume of material – more than 1,000,000 words on this site – makes it difficult for people to see the big picture sometimes. To put 1,000,000 words into perspective, the average novel contains only about 100,000. So I’m condensing the website into a book that includes the themes below.

No One Wins Arguments with Mother Nature

During an interview with Milan Saunders and his daughter Lori, Milan said, “No one wins arguments with Mother Nature.” How profound! It doesn’t matter how many surveys, studies and engineer stamps you have on your home’s title. If you don’t:

  • Respect the rivers.
  • Give them room to roam.
  • Protect wetlands.
  • Allow plenty of margin for safety…

…you will flood.

Thought courtesy of Milan Saunders, Chairman/CEO of Plains State Bank. That’s his daughter Lori’s house during Harvey.

Understanding the Causes of Flooding

Excess sedimentation is one of them. Sediment pollution is the single most common source of pollution in U.S. waters. Approximately 30% is caused by natural erosion, and the remaining 70% is caused by human activity.

Large islands built up during Harvey blocked both drainage ditches and rivers. Below, you can see a large sand island (top) built up at the confluence of the Kingwood Diversion Ditch where it reaches the San Jacinto West Fork at River Grove Park. This sand bar reached 10-12 feet in height above the waterline and helped back water up into Trailwood, the Barrington and Kingwood Lakes and Kings Forest. Before the Army Corps dredged this island, River Grove flooded five times in six months. It hasn’t flooded since.

The Kingwood Diversion Ditch and West Fork San Jacinto were almost totally blocked by sediment dams deposited during Harvey.

The second photo above was taken a few hundred yards downstream on the West Fork from the first. It shows “Sand Island” – so nicknamed by the Army Corps. It took the Corps months to dredge this island which they say had blocked the West Fork by 90%.

A certain amount of this sedimentation can be explained by natural erosion. But mankind also contributed to the sheer volume by other practices which I will discuss below.

Respect the Rivers

The red polygons in the satellite image below surround 20-square miles of sand mines on the West Fork of the San Jacinto in a 20 mile reach of river between I-45 and I-69. That exposes a mile-wide swath of sediment to erosion during floods and increases the potential for erosion by 33x compared the river’s normal width.

Even without floods, mines sometimes flush their waste into the rivers. The shot below on the top right shows the day the West Fork turned white. The TCEQ found the source of the pollution upstream: a sand mine that had flushed 56 million gallons of sludge into the West Fork (bottom right).

Influence of sand mines of West Fork San Jacinto water quality.

End the War on Wetlands

Wetlands are nature’s detention ponds. During storms, they hold water back so it won’t flood people downstream. But we seem to want to eradicate wetlands. The images below show the Colony Ridge development in Liberty County. Wetlands (right) are being cleared (left) to make way for the world’s largest trailer park. The acceleration of runoff wiped out FM1010 during Harvey. The road still has not been repaired.

Colony Ridge in Liberty County.

Conservation Costs Much Less than Mitigation

Halls Bayou at I-69 near Fiesta. Image on left shows whole subdivisions that that to be bought out before detention ponds on right could be built.

All across Harris County, especially in older areas inside Beltway 8, apartment complexes, homes and businesses are built right next to bayous and channels. This makes it difficult to enlarge streams or build detention ponds when necessary. One study showed that preservation of floodplains is 5X more cost effective than mitigation after homes flood. Yet private developers keep crowding bayous and residents keep demanding public solutions.

Respecting Individuals’ Property Rights While Protecting Others’

In Texas, it sometimes feels that an individual’s right to do what he/she wants with property trumps others’ rights NOT to flood. You may think you’re protected by all those public servants reviewing and approving plans. But what happens when developers and contractors decide to ignore the approved plans? Here’s a prime example: the Laurel Springs RV Resort near Lakewood Cove.

The approved plans said that “Stormwater runoff shall not cross property lines.” So what did the contractors do? They pumped their stormwater over the development’s detention pond wall. When that took too long, they dug a trench through the wall. Then they laid pipes through the wall to permanently empty the sludge into the wetlands of Harris County’s new Edgewater Park.

This apparently violated the developer’s City of Houston permit, the Texas Water Code, TCEQ’s construction permit and the developer’s stormwater pollution prevention plan. Four investigations are currently swirling around this development. The contractor also cut down approximately 50 feet of trees in Edgewater Park along the entire boundary line and received a cease-and-desist letter from the Harris County Attorney. But the damage is done.

Balance Upstream and Downstream Interests

About 10% of all the water coming down the West Fork at the peak of Harvey came from Crystal Creek in Montgomery County. But the wetlands near the headwaters of Crystal Creek are currently under development. And the developer is avoiding building detention ponds with a “beat-the-peak” survey. This loophole allowed by Montgomery County says that if you get your stormwater to the river faster than the peak of a flood arrives, then you’re not adding to the peak of a flood and you don’t have to build detention ponds. So developers conduct timing surveys to reduce costs and maximize salable land.

What happens when upstream areas develop without consideration for the impact on downstream property owners.

Of course, speeding up the flow of water in a flood is the opposite of what you want to do. To reduce flooding, you should hold back as much water as possible.

The slide above shows part of a new development called Madera at SH242 and FM1314 being built on wetlands near Crystal Creek.

The graph on the right shows what happened on Brays Bayou without suitable detention upstream. Floodwaters peak higher, sooner. Harris County has spent more than $700 million in the last 20 years to remediate flooding problems along Brays.

How much will we need to spend when more areas like Madera get built upstream on the West Fork?

How Quickly We Forget!

FEMA’s Base-Flood-Elevation Viewer shows that in that same area, developers have already built homes that could go under 1-5 feet of water in a 100-year flood. These homes are actually in a ten-year flood zone. And yet more homes are being built nearby. On even more marginal land!

In recent years, the price of land as a percent of a new home’s cost has risen from a historical average of 25% to approximately 40% today. This puts pressure on developers to seek out cheaper land in floodplains, reduce costs by avoiding detention pond requirements, pave over wetlands, and reduce lot sizes resulting in more impervious cover. All contribute to flooding.

Of course, smart homebuyers would not make such risky investments. But few lack the expertise to gauge flood risk. Educating such homebuyers will be one of the major objectives of the book I hope to write.

Posted by Bob Rehak on 2/23/2022

1639 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.

Recent Texas Supreme Court Ruling Clarifies Your Property Rights Versus Another’s

Sand miners may argue that their property rights give them an absolute right to do what they want on their own property. However, such claims ignore a 2016 Texas Supreme Court ruling that clarified nuisance law. The very word “nuisance” may conjure up images of “trivial or petty annoyances.” However, people often use nuisance laws to settle serious environmental and property-damage claims.

Texas Supreme Court Case No. 15-0049, Crosstex North Texas Pipeline L.P. v. Andrew and Shannon Gardiner, resulted in guidelines for deciding property rights conflicts in such nuisance claims.

I have summarized the 54-page decision below for convenience, but am not a lawyer and do not offer legal advice. Also, inevitably, editing involves selective omissions. After reading this, if you are interested, I urge you to review the full text of the decision by clicking on the link above.

Details of Case

This case applies to private (individual) nuisance cases. In Crosstex v. Gardiner, the Gardiners claimed that Crosstex built a compressor station adjacent to their ranch that made living there unbearable and diminished the value of their property. Up to four compressors, each the size of mobile homes, ran constantly; at least one ran at all times. According to the Gardiners, they literally shook the ground, caused vibrations, and created as much noise as jet engines or railroad locomotives. They asked the pipeline company to reduce the noise by enclosing the compressors in a building. The pipeline company instead built three walls around the compressors and planted foliage. However, it left the side facing the Gardiners open. A jury awarded the Gardiners $2 million.

Defendants appealed the case. The Texas Supreme Court ruled on it in 2016. The Court’s decision has been lauded nationally because of the clarity it brought to conflicting and confusing precedents in this area of the law. Googling the case shows more than 18,000 references to it, most by law firms, other court decisions, and national media.

What the Decision Includes

In the decision, the Court:

  • Defines “nuisance”
  • Explains that nuisance is a type of legal injury – not a cause of action
  • Discusses types of conduct that create nuisances and legal liability
  • Confirms that whether a defendant is liable presents fact issues for a jury to decide.

Court’s Definition of Nuisance

A nuisance, says the Court, can result from such things as “water, stones, rubbish, filth, smoke, dust, odors, gases, noises, vibrations, and the like.”

Early cases examined by the Court reflected efforts to balance a property owners’ rights. One person’s desire to use his property as he desires should not unreasonably injure a neighbors’ rights to the use and enjoyment of his property. The following passage could have been written about sand mines:

“…When expensive plants have been erected and are used in carrying on a useful business[,] adjacent property owners will not be permitted to maintain actions for every trifling annoyance which such business causes them.” Storey, 226 S.W.2d at 618. But “the fact that the business is a useful or necessary one or that it contributes to the welfare and prosperity of the community is not determinative,” and “the law does not allow one to be driven from his home or compelled to live in substantial danger or discomfort even though the danger or discomfort is caused by a lawful and useful business.” Id.

More recently, however, the Texas Supreme Court has consistently used a more comprehensive definition of nuisance:

“A ‘nuisance’ is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.”

The term “nuisance,” they say, does not refer to the “wrongful act” or to the “resulting damages,” but only “to the legal injury—the interference with the use and enjoyment of property—that may result from the wrongful act and result in the compensable damages.”

Requirements

The Court defines nuisance as a legal injury only if:

  • The interference is “substantial” and …
  • Causes “discomfort or annoyance”
  • That is “unreasonable.”

Duration

Further, the Court says, “[T]he duration or recurrence of the interference is merely one—and not necessarily a conclusive—factor in determining whether the damage is so substantial as to amount to a nuisance.”

Support for “Substantial”

“To support a claim for private nuisance, the condition the defendant causes may interfere with a wide variety of the plaintiffs’ interests in the use and enjoyment of their property. It may, for example, cause:

  • Physical damage to the plaintiffs’ property
  • Economic harm to the property’s market value
  • Harm to the plaintiffs’ health
  • Or psychological harm to the plaintiffs’ ‘peace of mind’ in the use and enjoyment of their property.”

“But to rise to the level of nuisance, the interference must be ‘substantial’ in light of all the circumstances.”

“Even a substantial interference, however, does not constitute a nuisance unless the effect of the interference on those who would otherwise use and enjoy their land is ‘unreasonable.'”

Support for Unreasonable

Unreasonable means “the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.”

Regarding this unreasonableness requirement, the Court highlighted three points.

  • First, it focuses on the unreasonableness of the interference’s effect on the plaintiff’s comfort or contentment, not on the unreasonableness of the defendant’s conduct or land use.
  • Second, unreasonableness must be determined based on an objective standard of persons of ordinary sensibilities, not on the subjective response of any particular plaintiff.
  • Third, as is typical with legal inquiries into reasonableness, the determination requires balancing a wide variety of factors, depending on the specific facts.

In summary, the court said, “Today we clarify that to prove a nuisance (that is, a legal injury based on interference with use and enjoyment of land), a plaintiff must establish that the effects of the substantial interference on the plaintiff are unreasonable—not that the defendant’s conduct or land use was unreasonable.”

Factors That May Be Considered

Determining whether a defendant’s interference with a plaintiff’s use and enjoyment of land is substantial or whether any particular effect of that interference is unreasonable requires consideration and balancing of a multitude of factors. Depending on the circumstances of the case at hand, these may include, among others:

  • the character and nature of the neighborhood, each party’s land usage, and social expectations;
  • the location of each party’s land and the nature of that locality;
  • the extent to which others in the vicinity are engaging in similar conduct in the use of their land;
  • the social utility of each property’s usage;
  • the tendency or likelihood that the defendant’s conduct will cause interference with the plaintiff’s use and enjoyment of their land;
  • the magnitude, extent, degree, frequency, or duration of the interference and resulting harm;
  • the relative capacity of each party to bear the burden of ceasing or mitigating the usage of their land;
  • the timing of each party’s conduct or usage that creates the conflict;
  • the defendant’s motive in causing the interference; and
  • the interests of the community and the public at large.

To summarize and repeat, “nuisance” refers to a “condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.”

“To establish such a legal injury, the plaintiff must prove that the interference is substantial and the resulting discomfort or annoyance is unreasonable, but need NOT establish that the defendant’s conduct or land use was unreasonable. That issue goes to whether the defendant can be legally liable for creating a nuisance and we turn to that question next,” said the court. (Emphasis added.)

Three Types of Conduct that Create Liability

The Court recognized three types of nuisance claims based on defendant’s actions:

  • Intentional Nuisance
  • Negligent Nuisance
  • Strict-liability Nuisance

Distinction Between Negligence and Nuisance

Negligence is one way that a defendant can create a nuisance. “To put it bluntly, a nuisance claim based on negligence is merely a negligence claim with harm to interests in use and enjoyment.”); HARPER§§ 1.23, at 102 (although “negligence is one way in which a nuisance may be caused, . . . where that is the case there is no distinction—the two coalesce”), 1.24, at 109 (“To the extent that one fails to take reasonable precautions to minimize the harmful effects of one’s activity, there is a case of common negligence.”)

“We think the better approach to reduce confusion is to clarify, as we do today, that the term ‘nuisance’ refers not to a cause of action or to a defendant’s conduct, but to the legal injury that the conduct causes and that gives rise to the cause of action.”

“We have no difficultly concluding that a defendant can be liable for ‘negligently’ causing a ‘nuisance,'” says the court. “In this category, the claim is governed by ordinary negligence principles. The elements the plaintiff must prove are ‘the existence of a legal duty, a breach of that  duty, and damages proximately caused by the breach.’”

Inappropriate Place or Abnormally Dangerous Activities

Even in the absence of intent or negligence, “a nuisance may arise where the defendant carries on in an inappropriate place an abnormally dangerous activity [that] necessarily involves so great a risk to its surroundings that its location may be considered unreasonable, and a strict liability may be imposed.’ PROSSER, 3d ed. § 88, at 596–97.” (Emphasis added.)

As I read this section of the decision, I thought about sand mining on point bars along the San Jacinto. Numerous academic studies cite river capture of the pits during floods as a “virtual certainty” over time. In fact, many of the pits were captured during several recent floods, not just Harvey. And as a result, much sediment was carried downstream which contributed to flooding that damaged homes and businesses.

Given the location of most of the West Fork mines:

… one could argue that pit capture and its consequences were eventually inevitable.

Sand mine pit capture during Harvey. The river took a shortcut across a point bar through the mine, sweeping sediment downstream. 

During Harvey, floodwaters swept through this complex and breached dikes in multiple locations. 

Some of that sediment now is likely part of this giant sand bar that was deposited during Harvey. It blocks the drainage ditch that empties the western third of Kingwood. Approximately 650 homes above this one blockage flooded during Harvey. While the sandbar looks small from the air, it is up to 15 feet high.

Liability Possible Even When Not Negligent

One precedent cited in the decision was a defendant who stored large volumes of water in a reservoir on his land. He was strictly liable for damage that resulted when the water escaped, “however skillfully and carefully the accumulation was made,” because the otherwise-unrestrained water was a “dangerous substance.” Later, the court observed, “the question is not really the nature of the defendant’s original conduct but whether he shall be permitted to continue it.”

“The mere fact that the defendant’s use of its land is “abnormal and out of place in its surroundings” will not support a claim alleging a nuisance; instead, in the absence of evidence that the defendant intentionally or negligently caused the nuisance, the abnormal and out-of-place conduct must be abnormally ‘dangerous’ conduct that creates a high degree of risk of serious injury.”

Remedies

“It is well-settled,” says the Court, “that three different remedies are potentially available to a claimant who prevails on a private-nuisance claim: damages, injunctive relief, and self-help abatement.”

However, not all remedies are available in every case. “Unlike the determination of whether a nuisance occurred, the decision to enjoin the defendant’s conduct or use is “a discretionary decision for the judge after the case has been tried and the jury discharged.” Damages could even include the cost of restoring land, says the Court.

Temporary vs. Permanent Damages

When the nuisance is temporary, the claimant may recover “only such damages as have accrued up to the institution of the suit or … to the trial of the action.”

When the nuisance is permanent, the claimant may recover lost market value.

Decision in Crosstex v. Gardiner Case

Said the Court: “The duty that Crosstex owed to the Gardiners was the duty to do what a person of ordinary prudence in the same or similar circumstances would have done. See Timberwalk Apartments, 972 S.W.2d at 753; see also Elliff v. Texon Drilling Co., 210 S.W.2d 558, 563 (Tex. 1948) (“In the conduct of one’s business or in the use and exploitation of one’s property, the law imposes upon all persons the duty to exercise ordinary care to avoid injury or damage to the property of others.”); Rhodes v. Whitehead, 27 Tex. 304, 307 (1863) (“The great principle which seems to control all the modern cases is, that men must so use their own as not to injure the rights of others, or to incommode others; they must not endanger health or comfort, or produce inconvenience, and there can be no prescriptive right in a nuisance.”)

Further, the court observed that: “The evidence of that breach included testimony that the noise was louder than even Crosstex anticipated, that the mitigation efforts Crosstex implemented did not lessen the noisome interference, and that Crosstex could have taken other steps to mitigate the noise but chose not to because of cost considerations. We agree with the court of appeals that some evidence supports the jury’s finding that Crosstex acted negligently in creating the condition that the jury found to constitute a nuisance.”

Net Takeaway on Nuisance

The court concluded:

“We hold today that the term “nuisance” describes a particular legal injury involving interference with the use and enjoyment of property but does not describe a cause of action; that a defendant can be liable for intentionally or negligently causing a condition that constitutes a nuisance; and that neither claim requires a separate finding that the defendant unreasonably used its property when creating a nuisance.”

My observations about sand mining within this review are matters of opinion on public policy and not intended to be legal advice. 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 November 24, 2018

452 Days since Hurricane Harvey

Whose Property Rights are More Important? Yours or Sand Miners’?

In the next two months, I expect to see legislation filed that will strengthen regulations on sand mining. Hopefully, legislation will prevent dangerous practices by the mining industry that have put residents at risk in the past.

Perhaps we can compromise on legislation that lets miners exercise their property rights without harming the property rights of others…or their incomes, safety, and families.

This is another post designed to raise awareness of sand mining problems and how other states have solved them. One of the main problems with sand mining in Texas: virtually all miners locate their mines in floodways. That almost guarantees a phenomenon called pit (or river) capture. Washington State has discovered the following about pit capture.

Causes of Pit Capture

Sand-pit capture happens when pressure from floodwater breaks through dikes and takes a short cut across sand mines instead of following the river’s course. A scientific paper called “Flood Plains, Salmon Habitat, and Sand and Gravel Mining” by David Norman and C. Jeff Cederholm describes the process.  The paper, published in Washington Geology by their Department of Natural Resources, says pit capture is almost inevitable in the long term.

“Regardless of the best planning and intentions, impacts of flood-plain mining may simply be delayed until the river is captured by the … pit,” they say. “While capture may not occur in the next 100-year flood event, it is likely to occur in the future as development and consequent flood magnitude increase. In the long term, stream capture by (sand and) gravel pits is a near certainty.”

Consequences of Pit Capture

The paper cites more than three dozen examples of pit capture. Consequences include:

  • Lowering the river bed upstream and downstream of mining operations
  • River bed erosion and (or) channel incision
  • Bank erosion and collapse
  • Undercutting of levees, roads, bridge supports, pipelines, utility towers and other structures
  • Increasing suspended sediment
  • Deposition of silts

I have described how those consequences happen in several previous posts. Also, the paper describes the processes in detail, so I will not repeat the explanations here.

As in Washington, the Houston area has had many instances of sand-mine pit-capture.

Video Shows Simulation of Pit Capture

This short YouTube video may help you visualize how this process works. A company called Little River made it with funding from the EPA and State of Missouri. Little River specializes in table-top, tank experiments for science classes. This video shows  how pit capture happens and how erosion results.

Depending on the area and depth of the pit, and sediment volume carried by the river, it could take “millennia” to restore the natural environment after pit capture.

Operators’ attempts to prevent pit/river capture by armoring dikes and channelizing rivers often accelerate floodwaters and increase erosion downstream, say the authors (page 13 and figure 17) .

Cures for Pit Capture

The Washington State Department of Ecology Shoreline Management Handbook recommends locating mining activities “outside the shoreline jurisdiction.” They recommend 200 ft. from the floodway or off the 100-year flood plain. The latter coresponds to Texas regulations for the John Graves Scenic Riverway District on the Brazos River.

Immediate Reclamation for Each Segment

The Washington State Department of Natural Resources administers their Surface Mine Reclamation Act (RCW 78.44). It generally requires reclaiming mines immediately after each segment is mined. The 1993 revision of this law requires that most mines in flood-plain environments be reclaimed as beneficial wetlands.

Avoiding pit capture requires thorough and immediate reclamation because of river migration. The longer a pit goes before reclamation, the greater the likelihood that river migration will capture it. We saw an example of that on the San Jacinto. The river is migrating 12 feet per year and is 38 feet away from breaking into a major sand pit.

The immediate reclamation requirement could benefit Texans. Texas law requires sand miners to file a reclamation plan to obtain a permit. However, there is no requirement to execute the plan before leaving the property. Many simply walk away from their obligations, much to the detriment of surrounding property owners and the safety of the public. Requiring miners to reclaim one section of a mine before permitting another would give them a powerful incentive to reclaim land.

Substitution of crushed concrete or quarry rock for gravel also has distinct environmental advantages.

Safeguards for Flood-Plain Mining if Necessary

The authors conclude: “If mine plans call for sites on flood plains, then wide, topographically higher, and thickly vegetated buffers should be considered as a means of reducing the probability of river avulsion in the near term. However, in most instances, buffers only delay the inevitable.:

“Determining an adequate distance between the flood-plain mine pit lake and the river will depend on understanding the rate of river meandering and the risk of avulsion.”

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 statutes of the Great State of Texas.

Posted by Bob Rehak on August 13, 2018

441 Days since Hurricane Harvey