The case of Emil C. Shebelbon, II v. Upstream Holdings, LLC ET AL (Montgomery County Cause No. 15-10-10710) provides fascinating new insights into how sand mines can affect flooding. This case is NOT about broken dikes, unauthorized discharges of sediment-laden water, or mines inundated by super-storms such as Hurricane Harvey. It involves the opposite of all those things. Yet it still has implications for state regulations – or lack thereof. Specifically, I’m talking about setbacks of mines from rivers, lack of best management practices, reclamation of mines after the completion of mining and monitoring of floodway development.

Defendants in this case appear to have filled in or walled off more than 200 acres of floodway property north of Shebelbon. That should have raised eyebrows from Washington to Conroe City Hall, but didn’t.

Plaintiff’s Property Did Not Fill Floodway

The plaintiff in this case, Emil Shebelbon, purchased approximately 200 acres of land on the southwest corner of the San Jacinto West Fork and I-45 North about 20 years ago. He operates a motorsports facility there with dirt tracks and jumps for cyclists. Most of his land is in the floodway at the original level. He did not bring in fill. However, he did push some dirt into mounds to create the jumps. Very little impervious cover exists. It resembles a park. If you were going to build a business in the floodway, this is one of the few you might consider. It does not obstruct floodwater.

Increase in Flood Frequency, Depth and Erosion

When Shebelbon bought his land, everything north of him was farm, ranch or forest land. Then one mine came in and another. They expanded and started building up their property or walling it off from the floodway with dikes.

Shebelbon soon started to notice an increase in the depth and frequency of floods. He also started to lose land to erosion during statistically small floods.

Allegations in Lawsuit

Shebelbon’s lawsuit alleges that:

• Mines blocked half of the floodway, forcing their flood water south onto his property, a violation of state law.
• Cutting the floodway width in half forced floodwaters up to 3-4 feet higher on his property.
• The increased flow in a smaller area increased the velocity of floodwaters.
• That increased what hydrologists call “sheer stress,” the force necessary to start erosion.

Modeling showed shear stresses increased upwards of 0.5 pounds per square foot. The hydrologists claim that’s enough to cause substantial land and bank erosion near and within the Shebelbon Property. That, in turn, widened the river, eroding Shebelbon’s property, they say. Shebelbon estimates he lost seven acres due to erosion caused by constriction of the floodway (see photos below).

Federal, state, county, and city regulations all prohibit restricting the conveyance of floodways. So how did this get permitted? That will be the subject of another post.

Court documents show that the mines deny any connection to Shebelbon’s damages. They issued simple, general denials and are fighting Shebelbon tooth and nail.

Surprising Expert Witness Testimony

Shebelbon, however, has produced hundreds of pages of expert witness testimony to support his claims. This 197-page document downloaded from the Montgomery County Clerk’s office contains the testimony of several experts. For this post, I’m focusing on Exhibit E-22: Flood Impacts from Surrounding Activities, prepared by Dr. David T. Williams and Dr. Gerald Blackler. Their testimony and credentials run from pages 19 to 101 of the PDF. (Caution: 19 mb download.)

Surprisingly, experts for the plaintiff found that the problem is most visible in smaller floods, i.e., less than 18-year floods. 100-year floods can overtop dikes and spread out. But smaller floods cannot.

Despite hundreds of posts on the relationship between sand mining and flooding, I have not previously focused on the phenomenon described by these experts. But every flood expert I talk to – at local, county and state levels – says their findings make perfect sense.

Public-Policy Concerns Raised by Shebelbon

Shebelbon’s case has not yet gone to trial. But I see similar situations every time I get in a helicopter. Together, they raise some disturbing public-policy issues. For instance:

• Do we need greater setbacks of mines from rivers? Greater setbacks would allow greater expansion of floodwaters and help protect neighboring properties.
• Do we need a comprehensive set of best management practices for sand mines that cover reclamation and abandonment? Restoring the natural floodplain instead of leaving an elevated mine next to the freeway might have prevented some of Mr. Shelbelbon’s damages.
• What happens when local officials turn a blind eye to those apparently violating regulations? Is there a higher authority to enforce compliance – short of expensive lawsuits?

Hopefully, the TCEQ or State Legislature can address these questions. But it won’t happen without public pressure.

I would simply ask.

Why should miners’ property rights outweigh those of a neighboring business or resident?

Food for thought as we approach the upcoming legislative session!

Posted by Bob Rehak on 11/4/2020

1163 Days after 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.