Who owns our rivers? In Texas, the state owns navigable streams and rivers. People may not obstruct them, drive through them, dump waste in them, or mine them – at least not without a permit. But sand miners constantly violate those laws with only slap-on-the-wrist fines that amount to another “cost of doing business.” Meanwhile, you are the one who pays the price.
Navigable Streams/Rivers Protected for Public
What does “navigable” mean? This Texas Parks & Wildlife web page describes the concept of navigability “in fact” and “in statute.” There is no precise test for whether a stream is navigable in fact. One court observed that “[w]aters, which in their natural state are useful to the public for a considerable portion of the year are navigable.”
“Since the days of the civil law of Spain and Mexico, obstructions of navigable streams have been forbidden,” the page begins. “Nowadays the Texas Penal Code, the Texas Water Code, and the Texas Parks and Wildlife Code contain prohibitions against obstructing navigable streams, and the Texas Natural Resources Code forbids unauthorized private structures.”
The Commissioner of the General Land Office has some authority to grant easements for rights of way across navigable or state-owned stream beds.
No Right to Obstruct Navigation
However, in general, no one has the right to obstruct navigation or interfere with recreation.
Parks & Wildlife Code § 90.008 states regarding Public Access: “Except as otherwise allowed by law, a person may not restrict, obstruct, interfere with, or limit public recreational use of a protected freshwater area.”
The “protected freshwater area” referred to above is defined in § 90.001 to be “the portion of the bed, bottom, or bank of a stream navigable by statute up to the gradient boundary.” That gets complicated, but generally, it means between vegetated river banks. Sand bars in a river are normally considered part of the river bed even if above water.
Numerous posts on this website have dealt with the legal limitations on discharging wastewater from sand mines. In general, it’s supposed to contain no more suspended solids and be no more turbid than natural levels in water upstream from the mine.
The only problem with that concept: when you have 20 square miles of sand mines in a 20 mile stretch of the river, it’s hard to find unpolluted water. In effect, the procedure/standard continually “lowers the bar” as you move downstream.
Out of Sight Makes Blight
What sparked this inquiry? As I fly up and down the West Fork, I see things normally out of public view. Such as miners’ dredge lines stretched across the river, blocking navigation. Such as trucks crossing rivers. Such as mines flushing wastewater down the river. Such as mining the riverbed, without permits or paying appropriate taxes.
Few people ever see these violations. And that has led to boldness on the part of miners. There’s little chance they will be caught. It’s kind of like speeding through a barren desert.
I have no idea whether any of the miners involved in most of the incidents below bothered to obtain permits. I do know that in many cases they have not.
Here is a small sampling of what I see from the air, month after month.
Dredge Pipelines Blocking River
Vehicles Driving Through River
Breaches Dump Wastewater into Drinking Water
Abandoned Without Reclamation
Pumping Wastewater to River and Adjoining Properties
River Mining Without Permit
Effect on Water Quality
Contributing to Blockages and Flooding
Rivers transport sand and sediment naturally. But with 20 square miles of sand mines built in the floodway of the West Fork upstream from the Lake Houston Area, miners have increased the potential for erosion 33x compared to the average width of the river. The pictures below, taken shortly after Harvey, show the results.
Please share this post with friends and family. It’s time to start getting ready for the next legislative session.
Posted by Bob Rehak on 5/30/2020
1005 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.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2020/05/20191002-EF-WF-Aerial_632.jpg?fit=1200%2C800&ssl=18001200adminadmin2020-05-30 15:50:562020-05-30 16:59:03Sand Miners Act Like They Own Our Rivers
Romerica Investments, LLC has applied for a permit to build a high-rise development in the floodplain of the San Jacinto River. They call the proposed development the Kingwood Marina Project. Because it involves adding 12 feet of fill material to the floodplain of the San Jacinto River, the Army Corps of Engineers has become involved. The Corps rules on any permit application that involves “discharge” of fill into “waters of the United States.”
The fill would stretch approximately three quarters of a mile from north to south along Woodland Hills Drive and approximately .85 miles from east to west on both sides of the Barrington. If you want to know what the Corps considers when making such rulings, or why and how the TCEQ interprets “water quality” for them, read on.
The Corps’ main criteria for evaluating applications includes four high-level considerations:
Need for the project
Extent and permanence of detrimental effects
Effect on wetlands
Relative weight of various additional factors
The additional factors below also apply to the proposed High-Rise Kingwood Marina Project:
General environmental concerns
Historic, cultural, scenic, and recreational values.
Fish and wildlife values
Shore erosion and accretion
Water supply and conservation
Considerations of property ownership
Needs and welfare of the people
Public Interest Described in More Detail
“All factors which may be relevant to the proposal must be considered,” says the intro to Corps regulations on page 398. The regulations (33 CFR 320-332) then go into more detail on many of these factors. The regs elaborate on dozens of things that the law requires the Corps to evaluate.
Here’s my summary and interpretation of those that likely apply. Keep in mind that I’m looking at these with the proposed Kingwood Marina high-rise project in mind. So I have omitted some items that do not apply, such those for coastal developments. For the exact text of each, consult this Department of the Army legal document. I am not a lawyer and do not offer legal advice.
The regulations start with a discussion of four high-level, over-riding factors.
The first thing reviewers look at is the “need for the project.” If needed, they then consider the extent and permanence of any detrimental effects relative to any benefits that the project provides.
In that regard, wetlands play a major role and get special mention. But the Corps also reviews the 17 other factors listed above that have to do with “the public interest.” Then they weigh them all – pros and cons. Something that’s very important on one project may carry no weight on another. The reviewers have wide latitude to use their own judgment.
What Does the Army Corps Consider Value of Wetlands to Be?
Providing nesting, spawning, and rearing space for animals, birds and fish
Moderating natural drainage, sedimentation, salinity, flushing, and other environmental benefits
Shielding other areas from erosion or storm damage
Storing storm and flood waters
Providing unique natural value to a local area
Further section B (3) recognizes that although a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in major impairment of wetland resources. This section seems to say, “We can afford to lose some wetlands, but at a certain point, “Enough is enough!”
The Corps looks at each wetland as part of a complete and interrelated wetland environment.
Corps Consults Others on Wetlands
The district engineer may undertake, where appropriate, reviews of particular wetland areas in consultation with the:
Regional Director of the U. S. Fish and Wildlife Service
Regional Director of the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration
Regional Administrator of the Environmental Protection Agency
Local representative of the Soil Conservation Service of the Department of Agriculture
Head of the appropriate state agency to assess the cumulativeeffect of activities in such areas (TCEQ and/or TPWD).
The Regional Director, U.S. Fish and Wildlife Service
The head of the Texas Parks and Wildlife.
The engineer must consider conservation of wildlife resources and preventing harm to them due to proposed permit activity. The Army must give full consideration to the views of those agencies when deciding whether to issue, deny or condition permits.
Applications for permits for activities which may adversely affect the quality of waters of the United States will be evaluated for compliance with applicable effluent limitations and water quality standards, during the construction and subsequent operation of the proposed activity. The evaluation should include the consideration of both point and non-point sources of pollution. The Clean Water Act assigns responsibility for control of non-point sources of pollution to the states. In our case, that’s the TCEQ.
Scenic and Recreational Values
Full evaluation of the general public interest requires that due consideration be given to the effect which the proposed structure or activity may have on values such as those associated with scenic rivers.
Consideration of Property Ownership
Authorization of work or structures by the Corps does not convey a property right. Nor does it authorize any injury to property or invasion of others’ rights.
An inherent aspect of property ownership is a right to reasonable private use. However, this right is subject to the rights and interests of the public in the navigable and other waters of the United States. It includes environmental protection.
Because a landowner has the general right to protect property from erosion, applications to erect protective structures will usually receive favorable consideration. However, if the protective structure may cause damage to the property of others, adversely affect public health and safety, adversely impact floodplain or wetland values, or otherwise appears contrary to the public interest, the district engineer will so advise the applicant and inform him of possible alternative methods of protecting his property.
A landowner’s general right of access to navigable waters may not create undue interference with access to, or use of, navigable waters by others. If it does, the authorization will generally be denied.
The applicant’s signature on an application is an affirmation that the applicant possesses or will possess the requisite property interest to undertake the activity proposed in the application.
In the absence of overriding public-interest factors that may be revealed during the evaluation of the permit application, a permit will generally be issued. But first, the engineer must receive favorable state determination. That state determination must take into account:
Similarly, a permit will generally be issued for Federal and Federally-authorized activities; another federal agency’s determination to proceed is entitled to substantial considerationin the Corps’ public interest review.
The Endangered Species Act (16 U.S.C. 1531 et seq.) declares the intention of the Congress to conserve threatened and endangered species and the ecosystems on which those species depend. The Act requires that federal agencies, in consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, use their authorities in furtherance of its purposes by carrying out programs for the conservation of threatened species, (editorial comment: such as the bald eagle which nests and feeds near this property).
Floodplains possess significant natural values and carry out numerous functions important to the public interest. These include:
Water-resources value (natural moderation of floods, water quality maintenance, and groundwater recharge);
Living-resource values (fish, wildlife, and plant resources);
Cultural-resource values (open space, natural beauty, scientific study, outdoor education, and recreation); and
Cultivated-resource values (agriculture, aquaculture, and forestry).
Although a particular alteration to a floodplain may constitute a minor change, the cumulative impact of such changes may result in a significant degradation of floodplain values and functions and in increased potential for harm to upstream and downstream activities.
Executive Order 11988 and Floodplains
In accordance with the requirements of Executive Order 11988, district engineers, as part of their public interest review, should avoid to the extent practicable, long and short term significant adverse impacts associated with the occupancy and modification of floodplains, as well as the direct and indirect support of floodplain development whenever there is a practicable alternative. For those activities which in the public interest must occur in or impact upon floodplains, the district engineer shall ensure, to the maximum extent practicable, that the impacts of potential flooding on human health, safety, and welfare are minimized, the risks of flood losses are minimized, and, whenever practicable the natural and beneficial values served by floodplains are restored and preserved.
In accordance with Executive Order 11988, the district engineer should avoid authorizing floodplain developments whenever practicable alternatives exist outside the floodplain.If there are no such practicable alternatives, the district engineer shall consider, as a means of mitigation, alternatives within the floodplain which will lessen any significant adverse impact to the floodplain.
Water Supply and Conservation
Water is an essential resource, basic to human survival, economic growth, and the natural environment. Water conservation requires the efficient use of water resources in all actions which involve the significant use of water or that significantly affect the availability of water for alternative uses including opportunities to reduce demand and improve efficiency in order to minimize new supply requirements. Actions affecting water quantities are subject to Congressional policy as stated in section 101(g) of the Clean Water Act which provides that the authority of states to allocate water quantities shall not be superseded, abrogated, or otherwise impaired.
Protection of navigation in all navigable waters of the United States continues to be a primary concern of the federal government.
District engineers should protect navigational and anchorage interests in connection with the NPDES (National Pollutant Discharge Elimination System) program by recommending to EPA or to the state, if the program has been delegated, that a permit be denied unless appropriate conditions can be included to avoid any substantial impairment of navigation and anchorage.
The NPDES permit program addresses water pollution by regulating point sources that discharge pollutants into waters of the United States.
Some activities that require Department of the Army permits result in beneficial effects to the quality of the environment. The district engineer will weigh these benefits as well as environmental detriments along with other factors of the public interest.
When private enterprise makes application for a permit, it will generally be assumed that appropriate economic evaluations have been completed, the proposal is economically viable, and is needed in the market place.However, the district engineer in appropriate cases, may make an independent review of the need for the project from the perspective of the overall public interest. The economic benefits of many projects are important to the local community and contribute to needed improvements in the local economic base, affecting such factors as employment, tax revenues, community cohesion, community services, and property values. Many projects also contribute to the National Economic Development (NED), (i.e., the increase in the net value of the national output of goods and services
Deadline for Comments Extended to March 1
Because of the prolonged government shutdown, the Army Corps has extended the deadline for public comments on the proposed Kingwood Marina high-rise development.
Comments and requests for additional information should reference USACE file number, SWG-2016-00384, and should be submitted to:
Evaluation Branch, North Unit Regulatory Division, CESWG-RD-E U.S. Army Corps of Engineers P.O. Box 1229 Galveston, Texas 77553-1229 409-766-3869 Phone 409-766-6301 Fax firstname.lastname@example.org
The TCEQ will evaluate water quality issues for the Corps. You can email water quality comments to email@example.com. Please ensure that all comments reference USACE permit application no. SWG-2016-00384.
Rehak Comments To Follow
As I have studied the Corps’ and TCEQ’s decision-making processes and criteria, I have also studied possible impacts of the proposed high-rise project. I intend to send my comments to the Corps, TCEQ, Texas Parks and Wildlife, the US Fish and Wildlife Service and the EPA. I will publish those when complete – hopefully by the end of this week.
As always, these represent my opinions on matters of public policy. They are protected by the First Amendment of the U.S. Constitution and the Anti-SLAPP statute of the Great State of Texas.
Posted by Bob Rehak on 1/31/2019
520 Days since Hurricane Harvey
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2018/12/Pieces-of-Romerica-Dev-e1546040851855.png?fit=1500%2C1095&ssl=110951500adminadmin2019-01-30 17:57:382019-01-30 18:05:55How Corps Will Evaluate High-Rise Permit Application
A friend called my attention to Montgomery County Floodplain Management Regulations. These regulations govern permitting of sand mines in the county. The thoughts are great. But are the regulations being enforced? Are they actually protecting the people of Montgomery County and residents downstream? You be the judge.
Findings of Fact
The regulations start out with “Findings of Fact.” They state on page 4:
“The flood hazard areas of Montgomery County are subject to periodic inundation, which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, and extraordinary public expenditures for flood protection and relief, all of which adversely affect the public health, safety and general welfare.” Also…
“These flood losses are created by the cumulative effect of obstructions in flood plains which cause an increase in flood heights and velocities, and by the occupancy of flood hazard areas by uses vulnerable to floods and hazardous to other lands because they are inadequately elevated, flood-proofed or otherwise protected from flood damage.”
When they wrote that last statement, they may not have anticipated the specific problem of the giant sandbar at the mouth of the San Jacinto River, but it certainly applies. The bar is backing water up throughout Humble, Kingwood and Atascocita, and it was created – in part – with sand that came from mines built in the West Fork floodway.
Also on page 4, the next section, “Statement of Purpose,” says, “It is the purpose of these regulations to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas by provisions designed to:
Protect human life and health;
Minimize expenditure of public money for costly flood control projects;
Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;
Minimize prolonged business interruptions;
Minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in flood plains
Just downstream from River Grove Park in Kingwood, a new sandbar has formed on the west fork of the San Jacinto. Boats that draw 18 inches of water can no longer navigate upstream (foreground) past this sandbar.
Primary Threat of Sand Mining
The primary threat from sand mines is sand and sediment that washes out of the mines during floods and accelerates the natural rate of sedimentation. Sand mine pits probably lower floods within THEIR local area by a small amount. No argument there.
Google Earth shows many instances of river capture and not just in Harvey. Much smaller floods have captured pits, too. These repeated captures are caused by building mines in floodways, excavating too close to the river, and using dikes/levees that are insufficient to withstand the volume of floodwaters – especially when the San Jacinto River Authority releases water from the Lake Conroe Dam. Additionally, mines sometimes increase the height of their levees by piling up sand in a way that constricts the floodway.
Clearly, not all of that sand came from mines, but some did. I flashed on the City Sewage Facility that was inundated, the loss of six buildings at Kingwood College that were contaminated by that sewage, and the $70 million taxpayers will spend on a dredging project…that doesn’t even address the biggest sand blockage on the river.
The most obvious areas to explore for permit violations include:
Sec (B)(2) Ensure that the proposed … site … will be reasonably safe from flooding (page 15)
Sec (C)(2)(c) Consider the danger that materials may be swept onto other lands to the injury of others. (Page 17)
Sec (C)(2)(f) Consider the costs of providing governmental services during and after flood conditions including maintenance and repair of streets and bridges, and public utilities and facilities such as sewer, gas, electrical and water systems. (Page 17)
Sec (C)(2)(g) Consider the expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site. (Page 17)
Sec (C)(2)(c) Permits should be denied if there’s a danger that materials could be swept onto other lands to the injury of others. (Page 17)
Sec (D)(2)(b) Variances shall not result in increased flood heights, threats to public safety, extraordinary public expense, create a nuisance or victimize the public. (Page 18)
Sec (D)(10) Any person or persons aggrieved by the decision of the Commissioners Court may appeal such decision in a court of competent jurisdiction. (Page 19)
Sec (A)(2) All improvements shall be constructed by methods and practices that minimize flood damage. (Page 21)
Sec (A)(8) An engineer must certify that the proposed excavation will have no adverse impact to the drainage on, from or through adjacent properties. (Page 21)
Sec (E)(1) Permits can be revoked in cases where there has been a false statement or misrepresentation. (Page 27)
Sec (E)(5) Violators can be fined $100 per day for each violation. (One of those dikes remained open for 3 years and another for 8!) (Page 28)
Sec (E)(7) A permit holder in violation may be forced to restore property to pre-existing conditions. (Page 28)
To read the complete regulations, click here. As stated on pg 26, SECTION F. EXEMPTIONS (5) Commercial mining and dredging are not exempt and must have a professional engineer certify the development plans of sand mines. Therefore, one would expect that the engineer would have evaluated sediment transport from the mines and the potentially increased risk of downstream flooding – especially downstream of the Lake Conroe Dam.
As always, these are my opinions on matters of public policy, protected by the First Amendment of the U.S. Constitution and the Anti-SLAPP statutes of the great State of Texas.
Posted August 6, 2018 by Bob Rehak
342 Days since Hurricane Harvey
00adminadmin2018-08-05 20:34:052018-08-06 07:20:39Montgomery County Floodplain Management Regulations Affecting Sand Mines: Are They Being Enforced?
Regular readers of this site will notice something new today – a top-level page that contains links to information about sand mining best practices.
The page features four categories of information about sand mining:
Best management practices from other states and countries
Academic articles and case studies
Texas laws and regulations
The material within each category ranges from easy-to-understand to for-experts-only. Descriptions beneath each link hint at the nature, content and authorship of the entry along with its degree of difficulty.
I hope to expand the page over time. If you know of additional valuable references, please send me links.
Knowledge: Your Best Defense
People who have closely followed the sand mining debate in the Lake Houston area know that the Texas Aggregate and Concrete Association and others have pushed back against this website.
Sand mine in Porter next to Caney Creek covers approximately 600 acres as of Hurricane Harvey. Kingwood’s East End Park, just downstream from here, had 30 acres covered with sand up to 10 feet high after Harvey.
I believe that such debate is healthy. I also believe that informed people can make better decisions about what’s in the public interest and their own self-interest.
Start with Louisiana
If you want to learn more, the Louisiana Best Management Practices represent a great place to start. Louisiana has geology, topology, weather, climate and vegetation much like ours. Beyond that, the document is clear, concise, well-illustrated and well researched…and balanced. It contains sections that explain why we need sand mining and how it’s done. It also contains good descriptions of the dangers. Then it describes best management practices and explains how they can help mitigate those dangers.
Similarities Around the World
As you explore best practices, notice their similarity throughout the world. Our problems are not unique.
Pay particular attention to recommendations pertaining to:
Setbacks from the river
Slopes of dikes
Location and protection of stockpiles
Vegetative ground cover
Huge Gaps Exist Between Desired, Required, and Actual Practices
Be mindful of the distinctions between desired, required and actual practices. Best practices lead to best outcomes. Required practices usually lead to minimally acceptable outcomes. Actual practices sometimes fall short of even those. That’s why I’ve also included the section on laws.
Statewide, sand mine operators received more than 600 fines for violations in the last five years.
After reviewing laws and best practices, browse through the aerial photos of sand mines on this site and ask yourself, “Are they complying with laws and observing the industry’s best management practices?”
If your answer is “No”, ask “Why?” And DEMAND answers.
Finding the Solution to Pollution
Sand comes at us from many sources, some natural and some man-made. We can’t stop nature, but we can stop harming ourselves.
Our lake and river are rapidly filling with sediment.
Drainage ditches are backing up into neighborhoods.
Water filtration costs are high.
Turbidity is high.
Oxygen in the water is low.
Recreation, boating and fishing are impaired.
Dredging will cost tens, if not hundreds, of millions of dollars.
Maintenance dredging will cost even more.
Demand Excellence, Not Just Compliance
We must hold the mines to the highest standards if they want a license to operate next to the source of drinking water for millions of people. Violations are simply not acceptable.
Also, any solution must acknowledge that this region is prone to repetitive flooding. We’ve had FIVE five-hundred year storms in the last 24 years (1994, 2001, 2015, 2016, 2017). During each, we also had huge releases from Lake Conroe that exacerbated flooding.
If mine design cannot withstand these types of events, we invite disaster. The most sediment transport happens during floods; it’s time we started planning for them.
How You Can Help
All of us are smarter than one of us. You may see things that I missed. Please review the aerial photos, best practices and laws. If you see opportunities for improvement, send them to me.
Example: Alaska, I noticed, discourages mining within 1000 feet of a public water source. Here, the sand mines operate right next to ours and even drive trucks through it.
Sand mines on the west fork of the San Jacinto adjacent to Kingwood. Note how close they are operating next to the source of our drinking water. Also note what appears to be a breach of the dike between the mine on the left and the river about two-third of the way up the left side of the photo. Photo taken after Harvey on 9/14/2017.
Sand mine on the West Fork of the San Jacinto adjacent to Kingwood. Industry best practices elsewhere discourage running vehicles through water sources. Here the operator built a road right through the river. Also notice the steepness of the dikes. Most best management practices recommend setting them back from the river, sloping them at 3:1 to 10:1 and planting them with vegetation such as grass to retard erosion.
Fresh sand deposits after Harvey coming out of the sand mines on the west fork of the San Jacinto adjacent to Kingwood. Note that the height of the dune is engulfing several medium sized trees on the right. Also note the road leading to the river on the left and machinery at work in an area unprotected by dikes.
Let’s compile of list of such observations, then start a dialog with the sand mining industry to encourage voluntary compliance with best practices and improve disaster planning.
Posted on 6/15/18 by Bob Rehak
Day 290 since Hurricane Harvey
00adminadmin2018-06-15 12:56:152018-06-16 12:02:17More About Sand Mining than You Ever Wanted to Know