A few weeks ago, I organized a meeting and tour with the U.S. Army Corps of Engineers (USACE) to see what has been done to improve Barker and Addicks dams since Hurricane Harvey. There were eight of us, representing various HOAs and organizations. We weren’t there to criticize or talk about the past, but rather to learn first-hand about what upgrades have been made.
The tour and interview were recorded on video.
Richard Long, the Army Corps’ Natural Resource Management
Specialist, spent a great deal of time showing us maps and information on his
office computer. He answered some very
tough questions. Many of us had flooded when the flood gates were opened after
Since the Addicks and Barker dams are nearly identical, he
took us to Barker dam on Highway 6, south of I-10 to show improvements.
Just north of the old flood gates, modern new gates and
conduits are in place – plus a second set of gates added as backup behind the
new ones. Previously, there were no backup gates.
Also, new water gauges, observation decks, buildings, video
camera surveillance, and generators have been installed.
The view from the top of the dam is dizzying. Over 17,000
concrete blocks (1.2 tons each) are laid like tiles in the channel beneath the
gates to guide the exiting water.
For security reasons, the flood gates cannot be controlled
remotely. Bluetooth and Internet systems can be hacked, so operation of the
gates is dependent on human heroes being physically on top of the dams, during
any kind of weather Mother Nature doles out – even tropical storms and
The dams were built in the forties, and during all this time
there was never a shelter for operators. During Harvey, two operators stayed
for three straight days and lived out of their trucks on top of the dams, going
in and out of the weather to do what was needed.
Shelters at each dam are now constructed, housing not only
the operations controls but also a place for operators to hunker down indoors
rather than in their vehicles. We were able to walk around inside and get a
close look at the equipment and Mr. Long explained what each was used for.
If electrical power should fail, there are multiple backups:
a room-sized generator in its own building; portable generators;
battery-operated hand-held equipment (resembling giant drill drivers) which can
turn the gates’ wheels to open. The last resort is human power, manual turning
of the wheel to open the gates. It takes
90 turns of the wheel to open the gates 1/10th of a foot. Operators would have to stand in line to take
turns to turn the wheel. The Barker gate is 12 feet and Addicks is 10 feet.
The operations manual has been updated since Harvey. As we’ve all heard, what is done at the dam
is “by the book”.
The upgrades are nearing completion and expected to be
finished by summer. Hopefully, before Hurricane Season, but the important parts
Our group is very grateful to Richard Long, Andrew Cook,
David Mackintosh, and others with the Corps for spending the time (over 2 hours
for some of them) to help us see the improvements for ourselves and better
understand the operation of Barker and Addicks dams.
Also, I’m grateful to those concerned citizens who
participated in our tour and who didn’t mince words with their questions:
Ed Browne, chair/founder, Residents Against Flooding; Kim
Parker, Woods on Memorial and Memorial Super Neighborhood; Greg Johnson,
Somerset Place Town Homes; Mary Eberle, Memorial Drive Acres and Memorial Super
Neighborhood; Susanne Blake, Woods on Memorial Town Homes; Kay Haslam,
Residents Against Flooding and formerly Legend Lane Town Homes; Lois Myers,
Residents Against Flooding and former candidate, City Council District A.
Congressional Candidates Todd Litton and Dan Crenshaw to address flooding at Residents Against Flooding event; Bill King to speak on ballot’s ReBuild Houston.
Originally proposed new 100-year rainfall amounts posted shortly before hurricane Harvey. It shows 18″ of water falling across a large swath of the city. Houston only requires 6″ of detention. Where does the other ~12″ of water go?
Final NOAA rainfall maps were changed dramatically after Harvey. The area where more than 18″ of rainfall occurs now extends from East Houston to Beaumont.
Residents Against Flooding, the nonprofit group working nearly ten years to prevent man-made flooding in Houston, will host three speakers at its annual meeting:
Dan Crenshaw (R) and Todd Litton (D), two candidates seeking the seat of retiring U.S. Representative Ted Poe in the 2nd Congressional District this November will offer what they, if elected, would do about Houston’s dire flooding situation.
Attorney Bill King, former Chronicle Editorial Board Member and 2015 Houston Mayoral Candidate, will offer an alternative opinion about ReBuild Houston, also on the November ballot, as it relates to drainage and flooding.
As a nonprofit, RAF cannot endorse one candidate over another, however we can advocate for drainage improvements or policies that reduce flooding.
7:00 – Please be seated
Brief Introduction – Ed Browne, Chairman of RAF
Discussion of “Prop A” – ReBuild Houston Program/Drainage Fee – Bill King, Guest Speaker
District 2 Congressional Candidate’s Flooding Discussion moderated by Ed Browne.
Introduction of the Candidates by Ed Browne. Dan Crenshaw & Todd Litton.
Candidates have 1 minute introduction.
There are up to nine total questions with each candidate having up to 2 minutes to respond.
1 minute closing for each candidate
Starting at 8:00 to 8:15 – Audience Questions for Bill King, Todd Litton & Dan Crenshaw. Only Questions pertaining to flooding will be allowed by the audience. Please respect this!
8:30 – We hope you enjoyed this discussion!
Bill King, a lawyer, is a respected civic leader in the Houston area. He is a former mayor of Kemah, former Houston Chronicle columnist, and has served on many civic boards. In 2015, he narrowly lost the closest mayoral election in Houston’s history.
Dan Crenshaw is a decorated former Navy Seal with a Masters in Public Administration from Harvard’s Kennedy School of Government and has been published in the National Review.
Todd Litton has served on numerous non-profit boards and committees, with his leadership recognized with the Children’s Defense Fund, Texas Lyceum and others. He has practiced law and worked in investments. He holds a law degree from the University of Texas and an MBA from Rice.
RESIDENTS AGAINST FLOODING is the oldest 501(c)(3) non-profit in the city focusing on policy matters to make Houston resilient to flooding. We have been taking flooding seriously since before 2009 and predicted the current flooding crisis. We are appealing our federal lawsuit against the city to the U.S. Supreme Court later this month. The goal is to force the city to focus its spending on flooding infrastructure and not pet projects for campaign donors. The city is fighting dirty, and we expect they will continue.
What is your big-picture strategy for solving flooding in the Houston region? What will be your urgency level?
What major federal flood infrastructure projects, if any, do you think are needed for the Houston area?
Government is known for partisanship and gridlock. How would you get Congress moving, along with agencies like the US Army Corp of Engineers, Houston Public Works, Harris County Flood Control, FEMA and TxDOT?
Are development practices causing increased flooding?
Neither the city of Houston nor Harris County will endorse a policy for new construction to have “No Adverse Impacts,” yet that policy is endorsed by the Association of State Floodplain Managers. What is your position?
Independent mapping companies have mapped the entire country with better accuracy and resolution than FEMA has available, showing Houston as more exposed to flooding than the FEMA maps indicate. Private companies are already using these maps to better manage their risk by avoiding flood-prone areas. Should FEMA replace their outdated Flood Insurance Rate Maps with these more accurate private maps?
The City of Houston lobbied Congress to change FEMA rules to allow redevelopment of properties bought by the government due to repeated flooding. If a Professional Engineer says it won’t impact flooding, the city will allow construction in the floodway using fill dirt to elevate properties. What is your position?
The National Flood Insurance Program (“NFIP”) is insolvent. What solutions would you propose?
Houston’s economy is dependent on petrochemical plants along the ship channel, which a hurricane storm surge could seriously damage. What is your opinion on solutions like the Ike Dike or the Coastal Spine (or other) and would you actively support funding?
** Woodview Elementary is where we held our first meeting after 500 area homes flooded during an unnamed thunderstorm in 2009. Since then more impervious cover has been added to once permeable ground, more upstream and downstream development has occurred, and whole tracts of land – large and small – have been elevated, transferring water to nearby lower elevation properties. Woodview is slated to be redeveloped within a few years and RAF thinks it would be a premium site for area detention – either above or below ground.
Although the event is free and open to the public, it still costs to hold meetings like this (school rental, safety officer, media operator, etc.). Contributions are encouraged to help support the nonprofit and a hat will be passed. Further details will be posted at:
our webpage www.ResidentsAgainstFlooding.org,
as well as on Facebook at Residents Against Flooding aka MCDDC,
The first few questions were to establish public statements for which we will hold whoever wins accountable. No doubt they are obvious. But consider how often our elected officials and their appointees have been unwilling to admit to the most basic and obvious truths.
Some of the questions listed were loaded; that is, we put enough information in the question to hint that we wanted the candidates to come up with a nuanced answer. Question 5, for instance, talks about No Adverse Impacts (NAI) as a possible policy. What we didn’t say, but hoped the candidates would recognize, is that a policy of NAI only maintains the status quo; i.e., flooding doesn’t get worse. Anything less, ANYTHING, makes flooding worse. And we’re not even capable of establishing p0licy to stop it from making things worse.
In question 6 we pretty much answered the question, “Should FEMA replace their outdated Flood Insurance Rate Maps (FIRM’s) with these more accurate private maps?” Here’s what we said, “Independent mapping companies have mapped the entire country with better accuracy and resolution than FEMA has available, showing Houston as more exposed to flooding than the FEMA maps indicate. Private companies are already using these maps to better manage their risk by avoiding flood-prone areas.”
Of course we should look at the private sector maps – they’re done; Congress is broken; FEMA is financially broke; and there’s too much development money in local politics that’s resulted in some very bad decisions, including pulling land out of the floodplains for development. The private sector has already completed what FEMA cannot seem to get started – it’s done and it was done without developer or governmental fingers on the scales.
Question 7 pointed to one of the main causes for flooding. “The City of Houston lobbied Congress to change FEMA rules to allow redevelopment of properties bought by the government due to repeated flooding. If a Professional Engineer says it won’t impact flooding, the city will allow construction in the floodway using fill dirt to elevate properties.”
Building in a floodway absolutely should be forbidden, and it should be done on the federal level, not at the local level. A floodway is guaranteed to flood in a rain event. Anything built in the floodway will obstruct water flow and back up water upstream, causing further flooding.
Current federal (FEMA) rules say that no fill dirt can be added in the 100-year floodplain; i.e., no net fill. Dirt used to elevate structures must be scalloped out from the floodplain itself. Changing this national policy at the local level will cause additional flooding, even if a professional engineer is willing to certify that it won’t. Further, professional engineers have made some very bad analyses in several areas that we are familiar with; e.g., Pine Crest Golf Course and the Conrad-Sauer detention pond.
We had hoped Question 8 would spur a little research. “The National Flood Insurance Program (“NFIP”) is insolvent. What solutions would you propose?” Congress passed the Biggert-Waters Flood Insurance Reform Act of 2012, which established true actuarial rates for insurance that significantly raised the costs of flood insurance for at-risk properties. These property owners made so much noise that Congress repealed much of the previous Act with the Homeowner Flood Insurance Affordability Act of 2014. Point is, Congress knows that we cannot continue to subsidize risky behavior and we had hoped that our candidates would know that, too, and would have strength in their convictions.
In Question 9, we defined what is vital to our nation’s security and economy to protect: “Houston’s economy is dependent on petrochemical plants along the ship channel, which a hurricane storm surge could seriously damage.” Then in the question, we hinted that there were other solutions rather than just the Ike Dike or Coastal Spline. “What is your opinion on solutions like the Ike Dike or the Coastal Spine (or other) and would you actively support funding?”
Why did we add “other” and why is it so important to us? Because neither of the other approaches will adequately protect the jewel, the ship channel, from a storm surge. The huge storage tanks along the ship channel hold millions of gallons of toxic materials, but they are designed to hold fluids inside, not to protect against storm surge waters. Scientists and engineers say that they will likely collapse, releasing their contents and contaminating the region, creating one of the worse ecological and economic calamities the World has seen. The Rice SSPEED Center has done extensive modeling that shows there is sufficient water in the Bay so that hurricane winds can recreate the storm surge behind the Ike Dike or the Coastal Spine, meaning they wouldn’t be effective for stopping ship channel damage.
The good news is that the SSPEED Center has identified a solution and we think that it’s important for our Congressional candidates to know about that solution since they would need to vote to support it.
A man carries salvaged food from his flooded two story home in Spring, Texas, a northern suburb of Houston in August last year.PHOTO:MICHAEL WYKE/EPA/SHUTTERSTOCK
HOUSTON—A year to the day since Hurricane Harvey slammed into Texas, Houston area residents are set to vote on whether to overhaul the region’s beleaguered flood-protection system, an election that local officials have cast as critical to the area’s future.
On the ballot in Harris County is a $2.5 billion bond backed by property taxes that could more than quadruple the annual funding available to help shield Houston and the surrounding cities from flooding. The proposal, set for a special election on Aug. 25, is the largest bond measure ever offered in Texas’ most populous county. If approved, proceeds from the bond would help fund a range of projects aimed at significantly bolstering the area’s aging network of bayous, which serve as a drainage system for the flood-prone county.
At stake, public officials say, is whether Harris County can ever realistically hope to protect itself from another storm of Harvey’s might.
“It is the most important local vote in my lifetime,” said Judge Ed Emmett, the county’s chief executive and one of the architects of the measure. “If Harvey came next week, we’d be in a world of hurt.”
The storm caused 36 flood-related deaths in Harris County and flooded more than 159,000 homes, apartments and other dwellings, while also damaging thousands of commercial structures and businesses. But even before Harvey hit, some officials and experts had warned that flooding was going to worsen in the Houston area and that upgrading an antiquated drainage system would be costly.
Local officials said increased funding would allow the county to finally complete flood-prevention projects that have been slowed because of a lack of money, as well as take additional measures it otherwise couldn’t afford. More than 200 potential projects have been identified including the widening of bayous, repairing flood-damaged infrastructure and buying out more than 1,000 flood-risk homes.
Matt Zeve, director of operations for the Harris County Flood Control District, said some of the projects the county could finish could have helped thousands of homes flooded during Harvey. If the proposal is approved by voters, the flood control district’s annual budget could rise to more than $500 million from $120 million, he said.
There is also the possibility of getting matching federal funds for projects the county can pursue if the bond measure passes, Mr. Zeve said.
According to county estimates, the bond proposal would increase the total property tax by no more than 1.4% for most homeowners in Harris County.
Weathering the Storm: Struggles Continue After Hurricane Harvey
When disaster strikes, having a safety net like flood insurance, a stable income, or savings can mean the difference between getting back on your feet, and living every day among the wreckage. We profile two families in Houston still recovering from Hurricane Harvey six months after the storm.
“There is literally a case of countywide PTSD to this day over Harvey,” he said. “I will talk to someone after a meeting, and they will be visibly emotional, crying in front of me. This is very emotional topic for people here.”
The measure has largely generated bipartisan support. Judge Emmett is a Republican, while Sylvester Turner, Houston’s Democratic mayor, also backs the bond. Gov. Greg Abbott, a conservative Republican who has called for reducing property taxes, approved the county’s request to hold the emergency special bond election, a requirement of state law.
Kaaren Cambio, whose home flooded during Harvey, said she at first had concerns that the public wouldn’t be given enough of a say on how the money was spent. But after attending a community meeting, Ms. Cambio, who heads a flooding task force for the Harris County GOP, said those concerns were allayed.
“I am never for higher taxes but in this case, this bond is necessary,” she said.
Roger Gingell, general counsel, for Residents Against Flooding, a Houston group that advocates for flood prevention measures, said that while he planned to vote for the bond, he had concerns about what projects the money would be used for. Mr. Gingell said he wanted the county to take a more nuanced approach to flood prevention in areas that it had not previously focused on, in addition to emphasizing some of the same bayou widening projects it had in years’ past.
Flood victims are evacuated as floodwaters from Harvey rise in Houston in August last year.PHOTO: DAVID J. PHILLIP/ASSOCIATED PRESS
“It’s pretty clear that we need the money to fund flood prevention infrastructure, but the government at both the city and county level has never articulated a big picture strategy for flooding in the region,” he said.
Charles Goforth, president of the Brays Bayou Association, a residential group that works on flood prevention issues and represents 30,000 homes in an area of Houston hit hard by Harvey, said most people he has spoken to are supportive of the proposal.
While some are uneasy with letting local government lead the flood prevention effort, Mr. Goforth said those fears have been eclipsed by an acknowledgment that since Harvey, there’s no longer much of a choice.
“We live here and this is a situation we’re going to have to keep dealing with. So we have to bite the bullet,” he said.
Don’t blame Mother Nature for flooding. Blame City Council.
The disasters are predictable. Why aren’t we preventing them?
By Cynthia Hand Neely and Ed Browne, Residents Against Flooding
April 19, 2016 Updated: April 20, 2016 12:37pm
Photo: Jon Shapley, Houston Chronicle
Meital Harari pushes water out the back door at her Meyerland home, Monday, April 18. (For more photos from the Tax Day flood, scroll through the gallery.)
Man-made, preventable flooding has surged dirty, sewage-ridden water through Houston living rooms three times now in seven years, yet city government fails to prevent these recurring emergencies.
Really? If losing homes, livelihoods, retirement savings, health and sanity (and at least one life) aren’t reasons enough to make emergency detention and drainage improvements, what in the world does it take?
Right now, too many real-estate developments do not detain storm water run-off from their new construction, and instead allow it to flow downstream into other neighborhoods, into people’s homes. This new development is responsible for unnecessary flooding of neighborhoods that previously weren’t flood plains, weren’t prone to flooding. That new development is also responsible for flood insurance rising 100 to 200 percent (before the Tax Day flood) in these non-flood plains.
City government is allowing this to happen. Developers use loopholes and grandfathering to avoid doing what the city’s laws require them to do. Is it ethical to allow a new office building to flood an entire neighborhood even if a loophole makes it legal?
Photo: Melissa Phillip, Houston Chronicle
Emergency personnel carry a woman from a rescue boat as people are evacuated from Arbor Court Apartments in the Greenspoint area Monday, April 18, 2016, in Houston.
And why on earth would a developer be allowed to use tax money (yours and mine) to build the stormwater detention required by law as part of a profit-making project? New development on the north side of I-10 and Gessner is using the already-stressed Conrad Sauer detention basin for a spiffy retail/residential complex under construction. The deal is an interesting card trick: They are making a few improvements to the basin, adding a little drainage near it and — especially important — are going to make the basin look pretty with trails and landscape for their future tenants/residents. They’ll get paid back $23 million (taxpayer dollars) for doing this. So they really didn’t pay for anything.
For seven years Houston homeowners have begged and pleaded with the mayor (previous and present) and City Council members to treat man-made flooding as urgent, as if it were a deadly fire to put out in a hurry. Yet despite hundreds of emails, calls, meetings, petitions from homeowners’ associations (at least 18), Super Neighborhoods, civic associations, and person-after-exhausted-person speaking at City Hall, there is more talk about bike trails and recycling than critical, focused action to address our flooding.
Photo: Venkat Ramamurthy, Reader-submitted Photo
Rain floods streets in Spring Shadows neighborhood near Gessner and Kempwood in northwest Houston.
Years ago the city signed a contract promising several detention basins in the Memorial City TIRZ 17 area. (“TIRZ” stands for Tax Increment Redevelopment Zone. It’s an arrangement in which any growth in property taxes is reinvested directly into the area). This city contract is yet to be honored, and we are told it is not “legally” binding. (But isn’t it morally binding? People are losing everything — three major floods in those six years!)
A capital improvement budget, including plans for detention and drainage projects, for the TIRZ 17 area, was submitted to Houston’s chief development officer, Andy Icken. And there it’s languished for almost a year, never presented it to the City for approval. Had Icken not “pocket vetoed” the budget, we would be a year closer to getting some relief.
Photo: Karen Warren, Houston Chronicle
A Waugh Street exit sign is submerged on Memorial Drive, flooded by the over flowing Buffalo Bayou, Monday, April 18, 2016, in Houston.
At City Council Tuesday, the mayor made it appear that the budget delay was TIRZ 17 board member John Rickel’s fault. Not so. Mr. Rickel (the neighborhood representative for homes south of I-10) and the whole board passed the budget and handed it off to the city.
Underhanded, unethical things are being done to keep big developers happy while homeowners suffer needlessly. That’s why a nonprofit group called Residents Against Flooding was formed in 2009: to show the Houston-area public that the cause of our troubles isn’t Mother Nature, but rather our city government’s failure to act.
After being ignored, Residents Against Flooding was forced to raise funds for a lawsuit. This is not for money or for damages but to get the City of Houston to protect its citizens. We expect the new mayor to wail that the city doesn’t have the money to address the problem. But for years, there has been money in the TIRZ 17 budget that could have been used toward our crisis. Please see that the TIRZ uses that money to build our detention basins!
And it should be noted that the problems weren’t addressed when the city’s finances were better. Incumbent council members, such as District A’s Brenda Stardig, have had ample opportunities to address the problems.
Stardig recently ignored pleas of hundreds of her district’s homeowners, as well as petitions from the Spring Branch West Super Neighborhood and Spring Branch Civic Association, to keep their choice of neighborhood rep on the TIRZ 17 board. Instead, last week Mayor Turner put his own “neighborhood” choice on the board with Ms. Stardig’s blessing.
The Mayor’s choice does not live in the TIRZ 17 area, is not affected by it, has never flooded. What kind of neighborhood representative is that? When Mayor Turner ran for office, one of his campaign promises was to address flooding. Yet after only three months in office, he is already letting us down.
We need your support to keep fighting the good fight, or more and more of our homes are going to flood — again, and again, and again.
The photograph was taken by Leif Reigstad and is from a Houston Press article that ran the day after our meeting. The article missed that this is a joint issue among residents North and South of the freeway. This is being driven by very concerned groups on both sides of I-10.
We had a good crowd, most of whom even stayed for public comments, donating both time and money. If you made a pledge, please honor that pledge. Even if our show of strength leads to more TIRZ 17 promises in order to placate us, without a lawsuit or the credible threat of one, those can evaporate just as easily as earlier promises have already. Please keep in mind that Capital Improvement Project (CIP) funding was in place for detention and drainage projects last year and removed this year in order to advance the construction of Gessner Road. Our primary concern about the Gessner Road project is that its stormwater has no valid places to go and projects that would help alleviate additional homes being flooded have been delayed or removed from the CIP. Let’s make sure this time.
We heard first from our attorney, Jim Blackburn, then his associates, Charles Irvine and David Kahne, who spoke generally about our ability to make Constitutional arguments in federal court and who spoke in detail about a specific game plan. Jim has donated tens of thousands of dollars of legal fees to the cause. He can’t do it alone. We need to support him. He won’t really be getting much of the fees. Lawsuits are pricey, but together we have plenty of people to fund this if everyone steps up to the plate.
While we have an easy-to-use credit card links on our website, there is a usage fee, so we would prefer a check in order to maximize our dollars. Here is the address for sending tax-deductible contributions:
RESIDENTS AGAINST FLOODING (a 501c organization)
P.O. Box 430574
Houston, Texas 77243-0574
There were a number of things that we promised neighbors that we would post on our website:
Link to our visit to City Council “pop-off” on September 1, 2015. Go directly to the Public Speakers section , then move the cursor at the bottom ot the screen to about 58.55 minutes to hear Jane Cahill West discuss changes made to Chapter 9 of the Infrastructure Design Manual. Keep listening to hear all 12 of us.
The expired 2003 Contract between the City and the TIRZ that required 4 detention ponds be built by the TIRZ.
What can you do to help?
Please talk to your neighbors and direct them to our website or printout some of the literature that we passed out at the meeting along with pledge sheets and take them to your HOA, Super Neighborhood, or Civic Association meeting and ask for their help. Contact your Council Member and the 5 At-Large Council Members to enlist their support. Speak at City Council “pop-off” session on Tuesday afternoon to voice concerns. Contact newspapers, radio stations, TV stations and post on social media.
After the meeting, we found out that our neighborhood representative, Dr. Bob Tucker, was not being reappointed to the TIRZ Board. As a retired Reverend, Bob has provided a moral compass for the Board. Apparently, he incurred the wrath of one of the larger area developers when he suggested that Klotz and Associates had a conflict of interest working for both Metro National in the redevelopment of the Conrad-Sauer detention pond and as TIRZ design engineers for projects on the north side of I-10. We are soliciting the help of CM Stardig to keep Bob on the Board.
Where: Memorial Middle School Auditorium; 12550 Vindon Dr., Houston, TX 77024
Who: Meet Our Legal Team and Hear Their Strategy – Jim Blackburn, Charles Irvine, Mary Conner, David Kahne, Larry Dunbar
Topic: What can we as homeowners do about flooding?
There is good reason for neighborhoods in the TIRZ 17 area (both north and south of I-10) to worry about being flooded, even if they haven’t flooded yet. As impervious cover from new development increases without mitigation for storm water run-off, our neighborhoods have become detention ponds for displaced water.
Over 500 homes in this area (which is NOT designated as a flood plain) flooded last Memorial Day, many for the second time in six years. Despite this, drainage and detention HAVE NOT BECOME A PRIORITY of TIRZ 17 nor the City of Houston to whom they directly report. THIS ISSUE HAS NOT BEEN RECOGNIZED AS THE CRISIS THAT IT REALLY IS.
Property owners in these affected areas should seek remedy from both the City and TIRZ 17 to prevent further property damages, financial loss, lowered property values, health impairment, and anxiety brought about by the City’s irresponsible decisions and policies.
A contract was signed in January 2003 between the City of Houston and TIRZ 17, describing a Project Plan which promised FOUR detention ponds — two south of I-10 and two north of I-10. To date, ONE detention pond has been constructed but it is also being used by development south of the pond and it overflowed during the Memorial Day rain event. There is not another detention pond currently on the TIRZ Capital Improvement Plan.
Attend this meeting to hear what these experts have to say. If we don’t unite and act now, we can only expect more of the same. Please share this message with your contacts who are concerned about the City’s drainage and flooding issues.
Per the request of area residents, beginning May 5th, 2015, TIRZ 17 opened a 30 day public comment period ending June 6, 2015, for the Memorial Drive Drainage and Mobility Improvements project. People can go to the home page of the TIRZ website and post their comments at www.houstontirz17.org. All questions and comments from the Town Hall Meeting and public comment period will be addressed and posted on their website within 60 days of closing date. This post presents some concepts that we would like to see incorporated in the Memorial Drive reconstruction project. Please feel free to borrow in whole or in part for your own comments.
For those that missed the TIRZ 17 Memorial Drive Town Hall Meeting April 14th, 2015, you can find the Power Point slide show here. The Memorial Drive reconstruction project will extend from Beltway 8 east almost to Tallowood and will add a sidewalk, a median, a 10-foot mixed-use shared hike and bike way, and over 10 acre-feet of underground detention. We applaud TIRZ 17 for designing a Complete Street, and for us a complete street includes improving the underground infrastructure when the less expensive opportunity presents itself, as during reconstruction. Below is a cross section of the planned roadway. Click on the drawing to open a clearer version.
Even though we consider this to be an improvement, we would like to offer some suggestions. First, it is important to consider what the priorities are for the roadway.
Our priorities are:
Safety – the road must be safe for motorists, bicyclists, and pedestrians;
Mobility – the road must convey through traffic smoothly while providing easy access to area homes and businesses, but it should not promote excessive speed;
Stormwater – this roadway must store excess stormwater runoff in an area known to have serious flooding problems;
Infrastructure – the roadway must have underground infrastructure installed capable of supporting expected future Chapter 42 residential density and continuing expansion of commercial interests;
Quality of Life – the roadway should mirror the lush landscape and amenities for which the Memorial area is known.
From a safety standpoint, it’s best to separate pedestrians and bicyclists from the roadway by trees – better to hit a tree than a person. As the trees grow, their canopy not only provides shade, air filtration, and noise reduction, but the presence of a canopy also encourages drivers to slow down and psychologically conveys the impression of a higher quality of life to an area. Perhaps equally important, as trees grow it becomes increasingly more difficult and expensive to widen the road because the trees must be replaced by trees with girth equivalence.
Traffic studies of Memorial Drive do not justify widening the roadway to more than four lanes, however, inserting a 24 foot median easily allows the roadway to be widened at a later date. When the TIRZ raised the possibility of taking the Gessner esplanade for underground detention, even if it was to be replaced and replanted, neighbors vociferously objected – and rightfully so. The esplanades along Gessner and other Memorial roadways are one of the reasons the area is such a desirable place to live, but they are always vulnerable to road widening (see Project ID 12282).
If that is so, then why create an esplanade as a placeholder for a future road widening? Lane widths for a major Houston thoroughfare are generally defined as 11 feet wide. A 24-foot esplanade therefore allows two lanes of 12 feet each with only stripe separation or two 11-foot lanes with a 2-foot raised separator. If it is desired that the esplanade never be removed, then it needs to be too narrow to create two lanes; that is, it needs to be 20 feet or less. Combined with trees between the street and sidewalks, a 20-foot esplanade would make it difficult to remove the median or widen the roadway. Ostensibly, a two way left turn lane (affectionately called suicide lanes) could be added, but it seems unlikely. Suicide lanes are a serious source of accident fatalities, so should be avoided whenever possible.
A 20 foot esplanade also frees 4 feet of the 100-foot Right of Way (ROW) that can be used elsewhere. We have elected to use the 4 feet to expand the 6-foot sidewalk into another 10-foot mixed-use shared hike and bike way on the north side. The graphic shows the widened sidewalks, a 20-foot median, and trees placed between the street and sidewalks. Hopefully, our reasons for these changes will become more obvious. Again, clicking on the graphic opens a larger version.
Porous concrete has begun to make inroads into some areas of building. Rice University has paved many of their sidewalks with porous concrete and it is used in the parking lot at Frostwood Elementary. So we asked ourselves, why not make the 10-foot sidewalks of porous material and install underground retention? If the soil quality was sufficient at Frostwood to support a similar underground system, certainly it would also be expected to work less than a mile away. The graphic to the right indicates how this would work. These systems are finding their way into design manuals in many communities, including Houston, where they are being used in lieu of surface detention systems.
Below is a quote that we presented to the Houston City Council’s Transportation, Technology, and Infrastructure (TTI) Committee when the City proposed replacing sidewalks for homeowners. This system costs approximately the same that then Public Works and Engineering (PW&E) Director, Dan Kruger, testified before the Committee that the City would charge to install a sidewalk. A permeable sidewalk is not a detention system and does not need continuous connections so pipes and communication lines don’t interfere. Because it is an open bottomed pipe, it also recharges the aquifer and water eventually percolates into the soil, reducing the possibility for mosquito breeding. Concrete pipes are notorious breeding grounds for mosquitoes. Puddling is eliminated with porous sidewalks, so bicyclists can use the sidewalk just after the rain without spraying “rooster-tails” over themselves and everyone else.
We got a quote from Triton because they happened to answer the phone when we called and were willing to provide this information. Residents Against Flooding has no affiliation whatsoever with Triton. Moreover, there are numerous other companies producing similar systems , , so this technology clearly works and is readily available. It’s useful to note that if the ground is deemed to have a poor water infiltration rate, then this system can serve as more flexible normal detention, although the chambers would then need to be interconnected.
In the PowerPoint presentation, LAN states that over 10 acre-feet of detention can be achieved using dual underground 10-foot by 10-foot rectangular culverts. In a 100-foot ROW, more than two rows of culverts can be installed. Can we add more? Is it a matter of construction difficulty or the cost of the culverts?
Suppose that additional 10-foot by 10-foot pipes extending from W153 were placed under the permeable sidewalk drainage system. These would not be used to convey water, but would be used to add capacity to W153. Therefore, they would be closed at one end and fully open to W153 at four places where it crosses under Memorial Drive underneath the north and south sidewalks: two would connect under the bridge underneath the southern 10-foot sidewalk with one extending east and the other extending west; and two more underneath the northern sidewalk – again, one east and one west. The graphic to the right shows the concept. Since they add capacity, they would dead-ended some practical distance east or west of the W153 bridge and need to be sloped so that water would drain back into the channel after a rain event. A 1% slope is probably sufficient, meaning that the elevation of top of the pipe rises 1 foot for every 100 feet of pipe.
To the right is a picture of W153 at Memorial Drive. There is a 9-foot by 9-foot channel under the roadway; the smaller pipe was added to compensate for lost capacity due to bisection of the main channel by a large water line and reconnects into the main pipe under the roadway. Hopefully, much of this will be corrected in the Memorial Drive redesign. For reference, nearby residents measured the distance from the bridge surface to the channel bottom at 23 feet, so there should be sufficient space under the sidewalk drainage system, which takes about 5 feet, even if the roadway is lowered. For every 217 feet that a pair of these pipes extend, one acre-feet of detention is added. Since elevations rise more to the west, it’s expected that more capacity can be added in that direction. During construction, fill dirt around the pipes can be selected to complement operation of the sidewalk drainage system. Again, these pipes are in addition to the drainage systems currently planned by the TIRZ.
In summary, Residents Against Flooding recommends:
A median less than 20 feet wide;
Two 10-foot mixed-use permeable concrete sidewalks and underground open-bottom drainage systems;
Trees planted between the roadway and the sidewalks;
Additional large box culverts to expand detention capacity of W153.
The culvert size under Memorial Drive should be increased during reconstruction to be whatever is needed if more W153 water is allowed in Buffalo Bayou.
The RAF Annual Meeting:
Will be held on APRIL 8th, 2015 in the auditorium at Spring Branch Middle School, 1000 Piney Point Drive. Our speaker will be Mr. John Rickel, a TIRZ 17 Board Member & Citizen-Appointee to the Board.
John Rickel is resident and citizen-appointee within the Spring Branch / Memorial District, appointed by the District G Council Member Oliver Pennington to serve on the TIRZ Board.
Mr. John C. Rickel has been Senior Vice President and Chief Financial Officer of Group 1 Automotive Inc. since December 2005 and also serves as its Chief Accounting Officer. Mr. Rickel served as Chief Executive Officer of Group 1 Automotive Inc. Previously, he held a number of executive and managerial positions with Ford Motor Company. He has served as Controller of Ford Americas, where he was responsible for the financial management of its western hemisphere automotive operations. Immediately prior to that, he served as Chief Financial Officer of Ford Europe, where he oversaw all accounting, financial planning, information services, tax and investor relations activities. From 2002 to 2004, Mr. Rickel served as Chairman of Ford Russia. He received his BSBA in 1982 and MBA in 1984 from the Ohio State University.
This Meeting will explain current, past, and upcoming development & infrastructure projects, & consider the means necessary to avoid or remedy impacts on area properties.
RAF our DRAINAGE COALITION, a 501(c)3
dba RESIDENTS AGAINST FLOODING
The “Residents Against Flooding” dba was adopted in April 2012, reflecting infrastructure impacts that exist throughout the City of Houston.
The Public Works and Engineering Department has released the long awaited Chapter 9 revisions of the Infrastructure Design Manual. Most of our requests were ignored, although the City did add back text stating, “The combined system is intended to prevent Structural Flooding from extreme events up to a 100-year storm.” This was necessary to maintain Houston’s extraordinarily good FEMA rating and discounted flood insurance rate.
PW&E didn’t remove “Grandfathering” (see below) and significantly decreased detention requirements for lots 15,000 square feet or less, which represents the vast majority of residential properties (94%). Detention requirements for these properties have been reduced to 7% from 10% proposed earlier this year. Compare this to 50% detention required to develop on virgin properties over 2 acres.
The new Chapter is still not harmonized with Chapter 42 of the City’s Code of Ordinances, which designates the entire incorporated City as urban. For example, runoff coefficients still reflect suburban densities, meaning that new road construction need only assume 55% runoff rates in areas with residential lots of less than 1/4 acre (10,890 square feet). Given that Chapter 42 allows up to 90% concrete coverage on properties this size and that Chapter 9 only mitigates for 7% of the runoff, this discrepancy will produce street and structure flooding in the extreme event. There is clearly a disconnect between the claim of preventing structural flooding up to a 100-year event and its Chapter 9 implementation.
Super Neighborhood Alliance (SNA) Chapter 9 Comments
• What’s at Stake?
Increased Risk of Flooding
Reduced Detention and Drainage Capacity
Rising Insurance Rates
Decreasing Economic Competitiveness
• What Needs to Change?
• Chapter 9 should be revised to insure consistent and transparent enforcement and eliminate unwarranted variances (§ 9.02.A.2).
Chapter9’sstandards for evaluating the storm water impacts should be revised to reflect both increased amounts of impervious cover and time of concentration.
Raise and reduce number of run-off coefficients (§ 9.05.B.3)
Protect existing development from increased risk of flooding (§ 9.05.D.5)
Specify more than two Manning numbers for roadside ditch design (§ 9.05.F.2.d)
• Chapter 9 should be revised to eliminate “grandfathering” and require full mitigation for the storm water impacts of all types of new development
“What is Grandfathering?”
Off-Site Mitigation (§9.05.H.3.b)
On-Site Mitigation (§9.05.H.3.d-e)
• Chapter9 should be reorganized or harmonized with City Code of Ordinances.
• Chapter 9 should be revised to improve city records by require maintenance of public records showing the location and capacity of detention on private property so that capacity is not lost during redevelopment (§ 9.07).
• What Should City Council Do?
Provide resources needed to enforce standards consistently and transparently
Demand compliance with Chapter 19 of the City Code
Educate and inform
Call special meetings
What’s at Stake?
• Increased Risk of Flooding
Amendments to Chapter 42 of the City Code of Ordinances passed in 2013 expanded “urban” standards for residential development from the Inner Loop to the entire city.
The amendments to Chapter 42 increased allowable density of single family housing outside Loop 610 from roughly 8 to 27 units per acre without requiring corresponding increases in supporting infrastructure or full mitigation for storm water impacts.
Local watersheds already have tens of thousands of properties in existing floodplains. Unless Chapter 9 is amended to require full mitigation for storm water impacts of new development, more properties than ever will be at risk of flooding.
Harris County Flood Control has recently changed its mitigation requirements from 1/2 acre-foot per acre of increased impervious cover to 1/3 acre-foot per acre.
• Reduced Detention and Drainage Capacity
Most of our drainage system is designed for low density suburban development with low discharge flows.
Unless Chapter 9 is amended to require the calculation of detention and drainage needs using coefficients that assume high density development with higher peak discharge flows than currently exist, city engineers will continue to evaluate detention and drainage needs using calculations that incorrectly assume low density development with low discharge flows.
Calculations that incorrectly assume low density development with low discharge flows where density and discharge flow is increasing will reduce detention and drainage capacity.
High density development increases demand for street and parking capacity that is often satisfied by filling-in roadside ditches that further reduces detention and drainage capacity.
New roads need to be constructed assuming full urban density since it is impossible to know where very dense development will occur. Likewise, roads reconstructed under Rebuild Houston should also have drainage systems assuming runoff from fully developed urban density.
Biggert-Waters Flood Insurance Act of 2012 mandates rates based on actual risk of flooding. Even though the Affordable Homeowner Flood Insurance Affordability Act of 2014 rolled back or slowed many rate increases for homeowners, businesses are still impacted fully. All rental and vacation homes will all have a yearly $250 surcharge to help subsidize at risk homes.
Flood maps are being revised to capture true costs of structural flooding. 55% of homes flooded in Houston are not in a FEMA floodplain compared to 33% nationwide. A 100-year rain event occurs on-average about every 5 years, and a 500-year rain even occurs about every 8 years. Under Biggert-Waters, FEMA will need to capture these anomalies. As a result, the floodplains will continue to grow.
Revisions to flood maps are increasing the size of the city’s 100-year flood plains and the number of structures at risk of flooding.
PW&E is removing references to meeting a 100-year Level of Service (LOS) from Chapter 9. FEMA has publicly stated that without this verbiage, Houston will loose its extraordinarily good FEMA Community Rating System (CRS) rating of 5. For each point lost, Houstonian’s flood insurance premium will increase 5%. For reference, the national average is 7.6 and Harris County is an 8. Only 4 communities of 872 are better than Houston’s CRS rating .
• Decreasing Economic Competitiveness
Reduced drainage and detention capacity, increased risk of flooding, and rising insurance rates will threaten economic competitiveness.
What Needs to Change?
Chapter 9 needs to retain references to meeting a 100-year level of service and rather than giving up on achieving it, PW&E needs to rework Chapter 9 in order to achieve it and stop worrying about hurting development.
Chapter 9 should be revised to insure consistent and transparent enforcement and eliminate unwarranted variances (§ 9.02.A.2). Section 9.02.A.2 allows the city engineer to grant site-specific variances that result in annual increases to 100-year flood plain. Site specific plans should be considered openly and have stringent requirements
Chapter 9’s standards for evaluating the storm water impacts should be revised to reflect both increased amounts of impervious cover and time of concentration
Raise and Reduce Number of Run-Off Coefficients (§9.05.B.3): Chapter 9 should be revised to reflect higher run off coefficients because drainage from all types of new development will have higher flow than from existing development. And now that high density development can occur throughout the city, the number of run-off coefficients should be reduced to two, e.g., (e.g., 75% for residential development and 100% for roadways).
Protect Existing Development from increased risk of flooding (§9.05.D.5): Roadways are designed to capture water in excess of two-year events up to 100-year events, but emergency routes are not allowed to flood even in 100- year events. Absent full mitigation for all types of new development, existing neighborhoods are wrongfully forced to serve as de facto detention ponds.
SpecifytwoManning numbers for roadside ditch design (§9.05.F.2.d): Using a large Manning number (e.g., 0.045) when replacing an earthen ditch with a concrete conduit will result in a channel that does not have as much conveyance capacity as the original ditch and thus increased flooding.
Chapter 9 should be revised to eliminate “grandfathering” and require full mitigation for all new development
“What is Grandfathering?” Chapter 9 allows property that either has impervious cover or had impervious cover in the past to be fully redeveloped without any on-site mitigation for storm water impact. Exemptions and/or reductions in detention and drainage requirements for redevelopment on such properties is referred to as “grandfathering.” “Grandfathering” needs to end because it shifts the cost of flood damage and reduction from developers to neighboring landowners, public agencies, and taxpayers.
Off-Site Mitigation (§9.05.H.3.b): When drainage from new development is directed to public right of way (ROW), Chapter 9 should require infrastructure to receive and convey water into storm sewer system and not redirect water to neighboring properties as occurs when roadside ditches are filled-in or curb and gutters don’t work properly. SNA has proposed that developers be allowed to install underground detention for lots smaller than 15,000 sq.ft. in the ROW to allow for maximum development and adequate detention.
On-Site Mitigation (§9.05.H.3.d-e):Chapter 9 requires detention as a % of existing impervious cover as follows: up to a maximum or 4% of the property size for lots of 1-10 acres, and up to a maximum of 7.5% for lots of 10-50 acres. Use of equations to determine the amount of detention are difficult and expensive to police. The best action is to eliminate the equations and require 0.5 acre-feet per acre for all types of new development.
Chapter 9 should be reorganized and harmonized with relevant chapters of the City Code of Ordinances.
Chapter 19: Chapter 19 of the City Code governing floodplains embodies a “No Adverse Impact” policy that should require full mitigation for all impacts of new development.
Chapter 42: Standards for storm water detention and drainage on private property should be moved out of Chapter 9 of the Infrastructure Design Manual and into Chapter 42 of the City Code of Ordinances to insure that (1) development standards are approved by City Council; (2) variance requests will be considered and approved the in open meetings, e.g., by the Planning Commission; and (3) variance requests will be subject to public comment.
Chapter 9 should be revised to require maintenance of public records showing the location and capacity of detention on private property so that capacity is not lost during redevelopment (§9.07). Parking lots can be used for detention, but such does not need to be recorded. Because analysis for new development assumes no detention, such properties are treated as “grandfathered,” and as a result run off increases.
What Should City Council Do?
• Provide resources needed to enforce standards consistently and transparently
Recent amendments to Chapter 42 of the City Code of Ordinances and proposed revisions to Chapter 9 of the Infrastructure Design Manual necessitate additional inspectors and engineers. Failure to provide adequate staffing to support these changes further exposes the city risk of flooding. Clarifying the standards will simplify the enforcement.
• Demand compliance with Chapter 19 of the City Code.
Chapter19alsostatesinseveralplacesthatthecityengineermustusethestrictestinterpretationregardingconflictingprovisionswheninterpretingprovisionsrelatingtofloodcontrol.Amongtheseistheexpressobligationofthecityengineerregardingtheuseof data provided in Sec. 19-4.b.1: “To the extent of any inconsistencies between the study data and the effective FIRM, the more restrictive base flood elevations and special flood hazard areas shall be controlling.”
Schedule presentations: Chapter 2, Sec. 2-2 of the City Code of Ordinances, rules of procedure for meetings and proceedings of the city council, Rule 2.a.3 governing presentations to the city council by persons, groups, or organizations allow presentations to be scheduled by council members through the office of the mayor pro tem. Presentations on the issue of flooding and drainage could be scheduled to educate council and the public on these issues.
Calla special meetings: Article VII of the City Charter, Sec. 3 titled “Meetings” provides: “Special meetings shall be called by the City Secretary upon the written request of the Mayor or three Council Members.”
Summonwitnesses:Article VII of the City Charter, Sec. 5 titled “City Council May Summon Witnesses” provides: The City Council shall have power to summon and compel the attendance of witnesses and the production of books and papers before it whenever it may be necessary for the more effective discharge of its duties, and shall have the power to punish for contempt . . .”
Since May, the Super Neighborhood Alliance and the City of Houston were supposed to be discussing changes to Chapter 9 of the City’s Infrastructure Design Manual. We haven’t been.
Instead, we have been discussing one small part, a “fee in lieu of detention” for development and redevelopment of properties less than 15,000 square feet. For reference, that’s approximately a third of an acre and detention is already required by Chapter 9, so a change in this requirement can affect 94% of single family residences. As an elevation challenged city, Houston needs all the detention that it can get, and it needs to be where the new density is occurring, but land to build large regional detention ponds where needed for maximum benefit is often unavailable.
We have proposed an alternative, a single paragraph to the existing wording that permits a fee to be used for under sidewalk detention of up to 15 cubic feet per linear foot of sidewalk. The fee would be paid to the City who would subcontract one of several companies who do this sort of thing. A phone call to the company at the top of a search list resulted in an estimated cost of $5.50-$6.75 per cubic foot of detention. The proposed “fee in lieu of detention” was to have been $7.50 per cubic foot of required detention as calculated by a formula in the City’s Infrastructure Design Manual and didn’t include the cost of a sidewalk. The maximum fee for “under sidewalk detention” would be $5000 for a 15,000 square foot lot. For the City’s average lot of 5,000 square feet, the cost would be $1667.
Under the sidewalk detention provides an immediate solution to rainwater runoff when construction occurs, rather than delaying to gather enough funds to build a regional detention pond. Distributed detention can provide surprising large amounts of detention and it’s located where the detention is needed, so doesn’t need to be piped to the lowest cost land when, and if, it becomes available. And the open bottom system drains water into the aquifer, rather than letting mosquitoes breed as they do in regular storm sewers.
If you think “under sidewalk detention” is a more reasonable alternative than a “fee in lieu of detention” for single family residential properties under 15,000 square feet, please contact your City Councilmember.
Update (3/29/14) CM Larry Green has put Chapter 9 on his Agenda for the TTI Committee meeting on Tuesday April 1st, 2014 in City Council Chambers at 9:00AM.
Update (10/8/13): The City has refused to release Chapter 9 of the Infrastructure Design Manual to the public or to the TTI Committee Chair for review. As a result, TTI Chair Melissa Noriega is not calling a Public Meeting.
Update (9/25/13): Our meeting with CM Costello regarding “fee in lieu of detention” was a waste of time. His position was that either we agree to a fee in lieu of detention or he would march across the street and have the Mayor sign it anyway. He refused to consider our proposal for under sidewalk retention at all.
Update (7/10/2013): The 5-year look-back has been tabled. Now they are exploring no look-back, but instead using the current drainage fee area as the existing impervious cover for new construction; i.e., if no fee is paid now, the land is permeable so detention is required. I asked that in addition to this, the clause adding some detention for existing impervious cover also be kept. In the future, sites that have been fallow for a long time can no longer use grandfathering to eliminate detention requirements; for example, under these rules the Heights Walmart would have required detention.
Update (7/9/2013): The TTI Committee meeting on Chapter 9 will be delayed once again by approximately 60 days, now meeting sometime in September. The delay is to allow CM Costello and Andy Icken to advocate for a fee in lieu of detention for smaller lots and to address the look-back time for the “grandfathering” clause added by CM Costello that requires a small amount of detention for preexisting concrete.
Update: The public meeting on Wednesday, June 12th was cancelled. It has been rescheduled for July 17th at 5:00PM. Although the City promised final revisions by July 1st, they are only required to make them available 1 week prior to the meeting. Consequently, revisions will be available July 9th at 5:00PM.
The public comment period for revisions to Chapter 9 of the City of Houston Infrastructure Design Manual closes on May 24, 2013. Comments must be submitted to email@example.com no later than that date. The draft of the revisions for Chapter 9 was released prior to the final City Council vote on Chapter 42 (which deals with urban development) of the municipal Code of Ordinances. Please note that these two manuals, the municipal Code of Ordinances and the Public Works and Engineering (PW&E) Infrastructure Design Manual (IDM), are distinct but different. The Code of Ordinances are voted upon by City Council after public hearings, while the IDM is approved by a PW&E Standards Committee not subject to a vote or hearings.
Here’s a link to our comments on proposed revisions to our red-lined copy of Chapter 9.
There are several points that are particularly important to note:
This sentence was removed in the new version of Chapter 9: “Drainage criteria administered by the City of Houston and complemented by Harris County and the Harris County Flood Control District (HCFCD) for newly designed areas provides protection from Structural Flooding from a 100-year storm event.” We hope that the City doesn’t quit trying to provide protection from a 100-year storm event and that FEMA and commercial insurers don’t abandoned Houston to our floods. Removing a sentence does not remove the City’s responsibility to protect its citizens from preventable disasters. (see Section 9.02.A.1)
Chapter 9 is not harmonized with Chapter 42. Recent Chapter 42 changes include increasing development density for single family residences dramatically (from 7 to 27 homes per acre) and designating all of incorporated Houston as urban. Urban density means more concrete and more concrete means more water runs off of properties. The stormwater runoff coefficient, C, that percentage of a property that is impermeable, needs to be changed in Chapter 9 to reflect an all urban City. Any roadways being reconstructed by Rebuild Houston need to assume stormwater runoff of 90% or higher. (see 9.05.B.3.a.1)
Chapter 9 allows fees in-lieu-of detention (see Section 9.05.H.2.a.). Section 9.02.J. says that payments in-lieu-of detention will be allowed only if deficit drainage systems are improved to sufficient capacity to convey new and existing runoff. If conveyance systems are being asked to carry all the runoff, then they need to have been designed using urban stormwater runoff (C>90%) that assumes all the water will be carried by the roadway conveyance and have capacity in excess of this. If Rebuild Houston intends to install sub-regional detention ponds, then all conveyance routes must be designed and built to handle more than the 100-year event; i.e., C >100%. Any fee paid in-lieu-of providing detention needs to go to a Rebuild Houston fund earmarked to build subregional detention in the subregion where the fee was paid. It should not go towards the General Fund, nor to be used on any road project anywhere within the City.
Attempts by the City to deal with “Grandfathering” will cause more confusion than anything. Inspectors will be unable to discern the small amount of new detention added when redeveloping properties with existing impervious cover (concrete). Enforcement would be virtually impossible. Our suggestion is that all development or redevelopment install the same amount of detention. Inspectors could very easily tell whether detention was installed or not and requiring everyone to install the same detention would reduce, if not eliminate, creative ways to avoid detention. We also recommend that elevating properties would require mitigating for 100% of runoff due to the elevation. (see Section 9.05.H.3.)
Sub-regional (huge) detention ponds have been touted as the means to save us from flooding by several Houston Mayors, but that’s misleading. It will be years (if ever) before Rebuild Houston funding begins to accumulate enough funds for these detention ponds. Back-of-the-napkin math suggests that we would need approximately 600 sub-regional detention ponds, each of about 320 acre-feet (huge), if we want to do away with requiring local detention. This would cost tens of billions and land available for purchase may not be optimally placed for detention; moreover, land will become scarcer as Chapter 42 is implemented. Clearly, we’ll need to build some anyway, even if local detention is used, because we’re only mitigating for half the runoff produced. A more subtle problem is our insistence that our roadways are designed to convey excess water in heavy rains, so the roadways will need to carry the water to the sub-regional detention ponds. Trouble is, major thoroughfares that need to carry emergency vehicles, or provide an evacuation route, must not flood even in an extreme event. Theoretically, all neighborhoods will have access to emergency and evacuation routes, so the question becomes, “How will the need to convey water to sub-regional detention ponds and the need for safe passage be reconciled?” The answer is that they cannot unless major thoroughfares are designed with much larger drainage systems than currently used, and that costs even more money and adds more delay. Chapter 42 densification will not wait for Rebuild Houston money to accumulate, so we strongly advocate for local on-site detention with no in-lieu-of payments. (See section 9.05.D.5)
Please refer to our other pages for more information about the relationships between Chapter 42 and Chapter 9. Use whatever comments you wish to get your own talking points or to send comments to the City (firstname.lastname@example.org).
Previous Chapter 9 comments were written to show what would be necessary if Houston wants to improve flood protection to a 100-year level of service. Those comments are at Can We Stop Houston Flooding?
Interspersed in the last bullet are pictures of detention ponds being installed along Brays Bayou by HCFCD as part of Project Brays, which will remove about 60,000 homes from the 100-year floodplain. Some of the detention ponds are quite large, for example, Eldridge Detention Pond is 4500 acre-feet and Arthur Storey Park detention pond is 3500 acre-feet, yet Bellaire Boulevard at Beltway 8, very nearby to Arthur Storey Park, floods during relatively small rain events. If the water cannot get to the pond, it doesn’t matter how large it is. In spite of the numerous detention ponds (picture – Brays at 610 Loop), home flooding in SW Houston occurred along Brays Bayou for a bad but not unusual event. This should be some indication of how bad the situation really is.
Chapter 42 of the City of Houston, Code of Ordinances passed as proposed by the Mayor’s administration with minor amendments at the April 24, 2013, Houston City Council with only three votes against: CM Andrew Burks, CM Helena Brown, and CM Jerry Davis. It is now the law. As a consequence, our Chapter 42 discussions have been removed. If you have linked to them, please let me know and we’ll work something out.
CM Laster’s two amendments passed as well. CM Laster’s amendment to reduce from 60% to 55% the level of support needed to complete an application for minimum lot size protection passed with only one vote against (Bradford), and his amendment to allow development on less than an acre of land outside of existing neighborhoods had unanimous support. CM Brown’s two amendments (1) to keep most of District A “suburban” and, alternatively, (2) to refer Chapter 42 back to the administration, both failed.
Chapter 42 extends the “urban” density formerly found only inside Loop 610 to all of incorporated Houston; i.e., inside the City limits. Suburban density now only applies to the extraterritorial jurisdiction (ETJ).
What should homeowners do? You should begin scheduling somebody from COH Planning to come explain how to adopt minimum lot size criteria for those neighborhoods that don’t have provisions in your deed restrictions. If you haven’t started already, you should also begin the process of modifying deed restrictions to add protection verbiage. You cannot start too soon.
Also, plats not associated with any neighborhood are eligible for redevelopment instantly, so drive through your area to see if you can identify any that don’t seem to be a part of any subdivision; for example, abandoned utility ROW or abandoned drainage ROW. Likely it’s too late to do anything about these, since developers have had 6 years to identify these odd parcels, but it may not be too late to begin planning for denser development.
If you are building a new home or rebuilding on an existing site, consider pier and beam construction. Construction costs may be slightly higher, but ultimately the serviceability and flexibility offered over the life of the home will make up any difference. If water shows signs of rising in the neighborhood, it’s relatively simple to raise the house higher and install more porch steps. Despite the fact that Rebuild Houston doesn’t credit pier and beam as being permeable, it does allow water to flow under the house and provides less surface area to flowing water. Piping is accessible and less prone to stress cracking as the ground shifts during Houston’s periods of torrent and drought.
Finally, Chapters 9 and 13 of the City of Houston Infrastructure Design Manual that deal with Stormwater are up for revision. With the increased density that Chapter 42 will provide will come increased stormwater runoff. This is particularly problematic in areas where flooding is already prevalent and may migrate to areas that are marginal. Chapter 9 deals with the “grandfathering” of existing permeable surfaces. Currently, if a property has existing concrete, mitigation of on-site detention need only be done for increased imperviousness, but only at 50% of the impact rate for properties above 1 acre in size. Smaller properties are mitigated at 20% with properties below 15000 square feet only requiring 10% of increase impervious cover.
Because of objections by homeowners, minor changes to these requirements have been made already, but these are insufficient to prevent an increase in flooding. Instead, we recommend complete elimination of any special provisions for already developed areas because many were originally installed without adhering to detention requirements, so should not be grandfathered. Arguments that it is unfair to burden new developers with the transgressions of the past don’t seem logical. We think that it is unfair to developers of virgin properties to have to mitigate stormwater runoff while those of older properties are allowed to remove existing concrete to elevate their property without any mitigation. It is also unfair to adjacent property owners.
Please help us protect Houston from future flooding. Please join us to get these provisions updated.
Overview – Chapter 9 of the City of Houston Infrastructure Design Manual, Stormwater Design Requirements, is up for comments. We have reviewed Chapter 9 and recommend that the following changes be made in order to prevent future flooding. Our central concern is the yearly rise in Base Flood Elevations and the increase in the size of the 100-year floodplain, which we believe is largely caused by the practice known as “Grandfathering.”
Our issues with Grandfathering are: unwarranted variances have been granted to builders, such as elevating property with no consideration of sheet flow obstruction or compensating detention; proper detention simply wasn’t installed; the land was developed prior to annexation by the City; or, for any number of other reasons, adequate detention and/or site drainage wasn’t installed. Once built, these properties are forever Grandfathered and new ones are added every year, so that the floodplain will continue growing until Grandfathering is removed from City Design Manuals.
Each year that the 100-year floodplain grows, Houston’s viability as a good location for new businesses is diminished. Moreover, the cost to residents increases in the form of diminishing home values, increased insurance rates, or actual flood damage to property. Our practice of using streets as drainage channels and neighborhoods as detention areas routinely brings the City to a standstill with untold property damage and work hours lost.
While water flow in roadways is certainly preferable to flooded homes, going forward with Rebuild Houston, we need to design to a higher level of service using realistic numbers. Progress has been made over the years; new subdivisions do a much better job at protecting structures than older neighborhoods, but developers and City engineers need to be cognizant that most people live in older homes that still need to be protected.
Temporarily waiving Rebuild Houston’s presently unimplemented Developer’s Fee can be used as a positive incentive for, for instance, adding more detention than necessary or building using low-impact design criteria. (editor’s note: the developer’s fee was passed by City Council Spring 2013 and will only add approximately $1.5M to Rebuild Houston. Final deadline for comments on the revisions is May 24. It is located here.)
Change Section 9.02 F. to add the lines in italics. The most interesting comment about disallowing development in areas that have deficient drainage systems is that it would “bring development to a standstill.” Nothing could have proven the point better because that’s equivalent to saying, “Houston is knowingly developing in areas that negatively impacts flooding in adjacent properties and neighborhoods. If we continue to insist upon following this path, then it needs to be done in a more responsible way. A development so located must completely mitigate the effects of their project in-situ to a particular level of service (TBD). To incentivize Development despite the additional costs, the Rebuild Houston Developer’s Fee could be waived for a finite period.
Section 9.02 F. Development or Redevelopment in Areas that have Deficient Drainage Systems: Development or Redevelopment will not be allowed in areas that have deficient drainage systems until existing drainage infrastructure is improved to sufficient capacity to convey all existing and new run-off. Payment in-lieu of detention (Section 9.05 H.2.a.) is only possible if drainage infrastructure capacity is improved to carry all area run-off and runoff from the Development. Alternatively, Development may continue if project impacts are completely mitigated on-site. The City will consider joint project funding with a private entity for construction of drainage systems that improve existing drainage infrastructure. The City’s first priority will be to fund those projects included in the Capital Improvement Plan (CIP). Where feasible, City funding will be leveraged with other funding sources including private entities, civic organizations, and other public agencies (Harris County, HCFCD, Corps of Engineers, Housing and Community Development, and other funding sources). For drainage systems that have been identified as deficient and are not scheduled to receive funding in the current CIP, the City will consider authorizing improvements performed by the private entity that comply with the City’s objectives.
Amend Section 9.04.D to combine the definitions of “in-fill” and “redevelopment” to provide for two, instead of three types of development; i.e., development that is either (1) “new” because the storm drain infrastructure has not been constructed, or (2) “in-fill”/“redevelopment” because the storm drain infrastructure is already in place and takes advantage of the existing infrastructure in place as a drainage outlet. The only reason to bother to make the distinction is because redevelopment might take advantage of Grandfathering clauses and in-fill would not. Removing Grandfathering obviates this need.
Section 9.04 D. Development – The term includes New Development, and In-fill/RedevelopmentDevelopment.
In-fill/Redevelopment Development – Development of open tracts of land in areas where the storm drainage infrastructure is already in place and takes advantage of the existing infrastructure as a drainage outlet.
New Development – Development of open tracts of land in areas where the storm drainage infrastructure has not been constructed and a drainage outlet must be extended to a channel under the jurisdiction of the HCFCD.
Find a more realistic way of defining rainfall events in Section 9.04 K.
In my relatively short time in Houston (35 years), my area has suffered no less than six 100-year events – something that is statistically improbable:
A rate of 6 events in 35 years is the same as 17 events in 100 years so:
Assuming independent stationary random events
(PA) = (PB) = (PC) = (PN) = 0.01
PT ~1 in 1034
This very large number strongly indicates that hypothetical water level tables used by the City when defining the frequency of rainfall events (2-year, 10-year, 50-year, 100-year, etc.) are grossly inaccurate. Even if only six events occurred in one hundred years, the probability of such an occurrence would be one in a trillion – still indicating the tables are wrong. Given improved record keeping and technological improvements that can permit near real-time water-level monitoring, the Houston Metropolitan area needs to begin creating better definitions by analyzing actual long-term rainfall history.
Judging from the following comment, HCFCD’s grasp of probability is not much better. “In fact, about half of all flooding events in Harris County occur outside a mapped 1 percent (100-year) floodplain.” If there’s a 50/50 chance of getting flooded outside or inside of the 100-year floodplain, then the distinction is moot – we are allin the 100-year floodplain.
Section 9.04 K. Rainfall Frequency – Probability of a rainfall event of defined characteristics occurring in any given year at a given location. Information on Rainfall Frequency is published by the National Weather Service. For the purpose of storm drainage design, the following frequencies are applicable: (insert mathematically correct numbers here)
Section 9.05 B.1.a Rainfall Durations specified render the runoff coefficients in the Rational Method useless.
Section 9.05 B.1.a Rainfall Durations
For design purposes, the rainfall duration for drainage areas less than 200 acres will be no less than 3 hours in duration.
For design purposes, the rainfall duration for drainage areas more than 200 acres will be no less than 6 hours in duration.
Remove all calculations in Section 9.05 B.3.a.(1) for the runoff Coefficient for the rational method, particularly for areas designated as “urban.” Runoff coefficients are determined based upon the amount of impermeable cover, but it may be assumed that with increasing density, 100% impermeable cover will eventually occur. Certainly everything designed for use inside the urban zone needs to assume that it will see maximum runoff, and hence, should use the maximum runoff coefficient.
Why is the maximum runoff coefficient only 0.8? The rational Formula fails to account for storm duration and can provide low estimates of actual runoff. If, for example, the intense duration of the storm exceeds the time that it takes water to flow to the watershed outlet from the most remote part of the awtershed, then the facto, C, should be 1.0.
TxDOT defines maximum runoff coefficients for downtown areas as 0.95. Using 0.95 for the runoff coefficient in urban areas would skew calculations toward more underground capacity. Clearly, application of 0.18 for the runoff coefficient for all parks ignores the dramatic permeability differences between pedestrian trampled parks like Hermann versus wooded portions of Memorial Park. I n reality runoff will also be dramatically different.
If we are truly interested in reducing the 100-year floodplain, then all development and redevelopment should be returned to runoffs equivalent to a pre-Columbian condition; i.e., prior to development, and every property would mitigate their runoff on-site. Adoption of better methods to compute runoff rates would likely improve drainage efficacy. There are valid arguments for defining all drainage requirements in terms of runoff volumes and peaks rather than impervious cover.
Section 9.05 B.3.a.(1) Determination of runoff
Use 0.95 for the runoff coefficient C values in urban areas when using the rational method formula.
If Houston wants to stop increasing the 100-year floodplain, runoff from New Development must be mitigated on-site, otherwise downstream areas will be subjected to greater runoff than experienced before the New Development. Change Section 9.05 C. 1.a. and Section 9.05 C. 1.b. to add the lines in italics. This is one of the Grandfathering clauses that need to be changed.
Section 9.05 C. 1.Design Frequencies
a. New Development: The Design Storm Event for sizing storm sewers in newly developed areas will be a 2-year rainfall. In addition, on-site detention must be installed for 100% mitigation of New Development runoff.
b. Redevelopment or In-fill Development: The existing storm drain (sewer, ditch) will be evaluated using a 2-year design storm, assuming no development takes place. The storm drain will then be evaluated for the 2-year design event with the Development in place.
(1) If the proposed Redevelopment has a lower or equal impervious cover, and the existing storm drain (sewer, ditch) meets 2-year level of service, then no modifications to the existing storm drain are required; otherwise, the property will need to be brought up to this code.
(2) If the proposed Development results in the hydraulic gradient of the existing storm drain below the gutter line, no improvements to the existing storm drain are required. Detention shall comply with Paragraph 9.05.H. Flow discharged to the storm drain shall be in compliance with Paragraph 9.05.H.4.b.
(3) If the analysis of the existing conditions finds that the existing storm drain is deficient (i.e. the hydraulic grade line is above the gutter line), the applicant should check with the City to see if a CIP project is proposed that will require a capital contribution. If a CIP project is not proposed for the subject system, then on-site detention will be required in accordance with Paragraph 9.05.H. Flow discharged to the storm
The City has long touted Regional Detention Basins as the answer to regional flooding, but the obvious problem with this approach is that drainage systems under Houston’s roadways were only designed to carry water from a 2-year event. They were not designed to also carry all the water from a large Development. Doing so clearly exacerbates regional flooding. If drainage capacity from the new Development to the Regional Detention Basin is insufficient, then the Development should not be allowed to forego on-site detention. This entire section needs to be rewritten, but the salient points are there.
Section 9.05 H.2.a.
The use of on-site detention is required for all Developments within the City and for new or expanding utility districts within the City’s ETJ. Detention will not be required if the City has developed detention capacity for a drainage watershed, and/or infrastructure improvements, to serve the drainage watershed in compliance with the requirements of this Chapter. Drainage capacity from the Development to the City’s detention capacity must be capable of carrying not only the water from the Development, but it must also do so while maintaining 2-year level of service for all neighborhoods and Developments already located in the drainage watershed. If these criteria cannot be met, on-site detention must be installed. In lieu of this, either the City or Development may elect to improve area drainage capacity to insure 2-year level of service. Under these conditions, the City will consider a funding contribution in lieu of on-site detention volume constructed by the owner.
We recommend that Section 9.05 H.2.d be replaced. This is the primary Grandfathering clause responsible for much of Houston’s increasingly bad floods. First, the old verbiage, then recommended changes.
Section 9.05 H.2.d.If Redevelopment occurs without increasing the overall impervious character of the site, then no detention will be required by the City.
Section 9.05 H.2.d. Redevelopment of preexisting sites must be brought up to current code for detention requirements. If the site cannot easily be altered and there are adequate existing storm sewers to convey site runoff, detention may be installed within 0.5mile of the site. If adequate storm sewers do not exist, developer may petition PW&E for upgrades.
Section 9.05H.2.e.1. needs to be modified to make it clear that the conveyance channels must be large enough between the Development and the regional facilities to not increase the risk of flooding to adjacent regions.
Section 9.05 H.2.e.1.
Development is located in an area determined by the City to not need detention due to the geographic location in the watershed, the Development’s proximity to regional facilities, or the capacity of the receiving outfall facilities and there are adequate existing storm sewers to convey site runoff while maintaining a 2-year level of service for all neighborhoods and Developments already located in the drainage watershed. Such conclusion by the City shall be supported by submittal of a Hydraulic Report as described in Paragraph 9.05.H.2.e(2).
Neighborhoods have requested that the Hydraulic Report in Section 9.05 H.2.e.(2) be accessible on-line. Too often totally fabricated analyses have been permitted, which have resulted in neighborhoods being flooded. City Permitters and the Professional Engineer who signs his name on the report would know that their work can be seen and reviewed. While there may still be honest mistakes made, fraud would be dramatically reduced. Transparency is miraculous for preventing corruption.
Section 9.05 H.2.e.(2) Hydraulic Report: Submit a hydraulic analysis prepared, signed, and sealed by a professional engineer, registered in the state of Texas, to demonstrate compliance with the conditions stated in this Chapter. The hydraulic analysis shall consider (1) the current developed condition of the watershed of the stormwater conveyance system, and (2) the fully developed condition of the watershed. The probable land use for the fully developed condition will be determined by the design engineer for review and approval by the City. The hydraulic analysis shall demonstrate no negative impact to upstream or downstream conditions and shall demonstrate that a positive impact will be achieved (reduced flood crest due to the exemption. The City of Houston will post Hydraulic Reports in a public database indexed by actual property address.
Once again, if Houston wants to stop increasing the 100-year floodplain, runoff from Development must be mitigated on-site, otherwise downstream areas will be subjected to greater runoff than experienced before the New Development. Section 9.05.H. 3. should be modified accordingly.
Section 9.05H. 3. Calculation of Detention Volume
a. Detention volume for Development areas is calculated on the basis of the amount of area of increased impervious cover. Impervious cover includes all structures, driveways, patios, sidewalks, etc.
b. Single family residential (SFR) lots of 15,000 square feet in area or less: If an adequate area stormwater conveyance system is available that meets 2-year minimum criteria, then SFR Lots are exempt from detention if proposed impervious cover is less than or equal to 75.0 %. Detention volume of 0.20 acre feet per acre required for impervious cover over 75%.
Existing SFR lots of 15,000 square feet or less may be further subdivided and exempt from detention provided the proposed impervious cover remains less than or equal to 75.0%. If an adequate area stormwater conveyance system is not available that meets 2-year minimum criteria, then 100% of runoff must be mitigated on-site.
c. Areas less than 1 acre: If an adequate area stormwater conveyance system is available that meets 2-year minimum criteria, detention will be required at a rate of 0.20 acre feet per acre of increased impervious cover. The subdividing of larger tracts into smaller tracts of 1.0 acre and less will require the detention volume of 0.5 acre-feet per acre of increased impervious cover. If an adequate area stormwater conveyance system is not available that meets 2-year minimum criteria, then 100% of runoff must be mitigated on-site.
d. Areas between 1 acre and 50 acres: 100% of runoff must be mitigated on-site.
Missing piece 1: Drainage systems that were designed years ago had different requirements than those existing today and often slab foundation’s base elevations are lower than those required now. As a result, these older neighborhoods are more prone to flooding. Yet, when redevelopment begins in a region, City code has no provision to check surrounding locales to make sure that increased flooding does not occur. This common-sense check should be mandatory. Tools exist to study the cumulative local, nearby, and downstream impacts – impacts that should be mitigated whenever possible and disclosed when not. This impact review should be part of the initial platting review process and should not wait until after a plat has been approved.
Missing piece 2: Public and private detention ponds can be breeding grounds for mosquitos. Either these ponds must be graded so that water drains toward the exit channel, reducing the possibility of standing water, or redesigned as permanent wet-bottomed detention ponds containing mosquito fish (Gambusia).
There is a MISCONCEPTION that the planned Memorial Drive
Reconstruction Project (from Beltway 8 east to Tallowood Road) will provide
much needed relief to our area’s flooding.
A group of concerned homeowners from the neighborhoods of
Frostwood, Woodland Hollow (Hollow Drive/Broken Bough) and Legend Lane met
January 24th with the two state engineers overseeing the Houston District project
who confirmed that ONLY 11.5 ACRE FEET OF STORM WATER DETENTION WILL ACTUALLY
BE GAINED in this endeavor in which the construction alone will cost an
“estimated” $22.2 million in public funds.
To put this into perspective, engineer Ed Browne, chair of
the nonprofit organization Residents Against Flooding, explains, “Under current rules
11.5 acre-feet would mitigate runoff from less than 23 acres.” Considering that
over 800 homes flooded in this immediate area, such a small amount of detention
is, forgive the pun, a mere drop in the bucket.
Also, the project will provide NO added protection from
major storms (such as Memorial Day, Tax Day, Halloween – much less hurricanes).
In the words of TxDOT’s Pat Henry, Director of Project Development, this is a
“small” project to make “aesthetic improvements” to the roadway. TxDOT drainage expert Elie Alkhoury, Director
of Hydraulics, Survey and Mapping, made clear that the flooding issues in our
area are “regional” and cannot be addressed within the scope of this road
Let that sink in.
$22.2 million of public funds PLUS millions more for 4 ½
years of studies and preliminary engineering. AND NO MAJOR FLOOD PREVENTION TO SHOW FOR IT.
While two massive 10’ by 10’ culverts will be installed,
large enough to drive through, the water will be moved faster to the very same
destinations which cannot handle it now and even with “restrictors” in some
pipes, the waterways will again back up and overflow. It won’t take a hurricane
for this to happen. It didn’t before. Our problem is man-made.
All area homeowners should have received a letter of
invitation to a Public Meeting February 7th at Frostwood Elementary regarding
this road reconstruction (meeting details below). Those who care about life-and-death
flooding in their backyards should put this on their calendars in red ink. It’s
not that so much can come from the meeting (the representatives behind the
reconstruction project will be there defending what they want – and are being
paid – to do) but the number of homeowners attending will make an impression on
the state officials. Whole families should pack the place.
The state, through TxDOT, is required to oversee this
project because federal grant money is involved. They must make sure it is spent according to
federal guidelines. TxDOT did not design the project, however. The board of
directors of the Memorial City TIRZ 17 (a City of Houston Tax Increment
Redevelopment Zone) hired engineering firm Lockwood, Andrews & Newnam (LAN)
to design this reconstruction.
In what appears to be a direct conflict of interest, the
same engineering firm, LAN, has been hired by Harris County Flood Control to
study our severely overwhelmed tributary (officially known as Ditch
W153-00-00). What most times looks like an innocent little creek, this
tributary runs under Tallowood Road and along Hollow Drive until it flows under
both Memorial Drive and Somerset Townhomes and finally empties storm water into
Buffalo Bayou. It has caused massive erosion at the outfall (requiring Somerset
homeowners to fork over more than $300,000 for repairs) as well as collapsed
pipes and a reoccuring sink hole at the Memorial Drive bridge over W153. MEMORIAL
DRIVE’S RECONSTRUCTION WILL NOT ADDRESS EROSION.
Before the development of CityCentre, Memorial Hermann
Hospital, etc., the tributary could safely transport storm water to the bayou,
but now as more and more water runs off from new concrete and buildings, our
living rooms have become the holding basins for its overflow instead.
The Memorial Drive Reconstruction Project will do very
little to aid this dire flooding situation and we are investigating whether it
will be put on hold until the results of the Harris County Flood Control’s study
of W153 are known. LAN is being paid nearly a million dollars in public funds
to conduct the study of this tributary and another one nearby, W151-00-00. The
contract was only finalized by Harris County Commissioners in November.
Homeowners should also recall that the new $1.5 billion Harris
County Flood Bond earmarked $10 million to address the issues of our tributary
W153. UNTIL THAT PLAN IS KNOWN AND THOSE MODIFICATIONS MADE, IT DEFIES LOGIC
THAT A ROADWAY PROJECT WHICH WILL EMPTY VOLUMES OF WATER INTO W153 WOULD
PROCEED AHEAD OF IT.
Solving Memorial’s flooding is a massive dilemma and granted
no one project will do it. Buffalo Bayou cannot handle any more water, nor can
W153, yet new development, concrete, sidewalks, roads continue to be built
without being required to detain 100% of the storm water runoff. Mayor Turner
has refused to require “no adverse impact” by developer’s projects.
While the Memorial City TIRZ 17 has a $2 billion valuation, those
(our) public funds are mostly spent on developer’s pet projects, landscaping
and lighting, roads and entrances to their developments, and not towards improving
drainage, detention, or replacing antiquated infrastructure. Yes, new culverts
will be installed in the reconstruction of Memorial Drive, but many very old
pipes will remain in place. If the new roadway is expected to have a life span
of 50 years, that means some of the pipes remaining in service will then be
over a hundred years old.
The reconstruction of Memorial Drive will create a lovely,
smooth road, new sidewalks and medians. Developments such as Memorial Green,
whose chairman sits on the TIRZ 17 board of directors, will greatly benefit
from a pretty and improved road in front of their property. (Memorial Green’s
storm water empties into W153.)
Yet there is only so much money, as Mayor Turner reminds
us. It should be used to save and
protect people first and make aesthetic improvements later. And, of course, the
City should wait until expensive studies are completed and their resulting
recommendations implemented before proceeding with the road reconstruction
which will impact that very property.
Those of us who have flooded unnecessarily, and some who
have even demolished and rebuilt to have their new homes flood as well, have a different perspective than those
with the municipal wallet in their pocket. We feel PUBLIC FUNDS SHOULD BE USED
TO PREVENT FLOODING BEFORE ANY OTHER NON-LIFE-AND-DEATH PROJECTS ARE
Perhaps friends and relatives of the people who drowned in their homes near Memorial Drive feel the same way.
ABOUT THE PUBLIC MEETING: February 7, 2019 5:30 pm to 7:30 pm (Open House format) Frostwood Elementary School, 12214 Memorial Drive There will be NO formal presentation, NO public Q & A
Written comments may be submitted at the meeting or afterward
if received/postmarked no later than February 22 via:
Dean Bixler used to go golfing near the top of Brickhouse Gully, a neglected drainage canal, at a course called Pine Crest. It was near his house in west Houston, and not a bad place to play until it closed down a couple of years back. In the months after Hurricane Harvey, savoring his $30,000 floodproofing investment, including metal doors with gaskets that had kept water out of his house, Bixler heard from a neighbor that the golf course was being developed. The neighbor was concerned that the new subdivision would replace low-lying grass with roofs and roads and that the runoff would flood their neighborhood in a heavy rain. In Brooklyn or Boston, residents worry new neighbors will take their sunlight or their parking spaces. In Houston, the concern is new neighbors will bring flooding.
Bixler downloaded Federal Emergency Management Agency maps and found something strange. For the past decade, the entire course had sat in the 100-year flood plain—land, usually near bodies of water, that has been assessed as having a 1 percent chance of flooding every year. What that official designation means is both practical risk to the homeowner and, for anyone with a Federal Housing Administration mortgage, a potentially onerous requirement to buy flood insurance. In most places in the U.S., a flood plain encompasses beach houses and ribbons of properties along fast-rising rivers. In Houston, the 100-year clings to the bayous, gullies, and ditches that give the city its natural character and duck beneath the roads and lurk behind houses. On a map, the flood plain is to the bayous as foliage is to a branching tree. The maps Bixler pulled indicated that, according to government-approved estimates, Pine Crest golf course could be expected to sit beneath 2 feet of water during what would be called a 100-year storm.
In a city locked in a mortal battle with water, that was no small thing: That much water spread across the course (at least briefly detained, in water-management lingo) would mean that much less water flowing immediately downstream in a big storm. The water from the course would flow into Brickhouse Gully, which would in turn rush east to empty into a bigger channel, the White Oak Bayou, along which more than 8,000 houses were flooded during Harvey. But then Bixler saw the FEMA map had been revised once already, with a further revision conditionally approved—essentially showing that as long as the owner, a developer in Houston, dug a channel where the golf course’s water hazards lined up, the whole property could gradually emerge from the FEMA danger zone. The 100-year flood plain the course sat upon would, as far as the official map went, disappear.
Now the revisions made sense. The new owner, an Arizona homebuilder called Meritage Homes, could terraform the flood plain into 100 acres of dry land ready for 900 houses selling for about $400,000 a piece. Approximate revenue: $360 million. Homebuyers with FHA mortgages wouldn’t be required to buy flood insurance or grapple with the fears that come with living on a flood plain every time the sky darkened. The new houses, perched on fill more than 2 feet above the safer 500-year flood mark, were expected to stay dry in a major storm. But if the water that had once sat on the golf course went downstream, where would it end up?
Houston is as flat as a tile, and about as resistant to water. It rains a lot (more than it used to), and it rains hard (harder than before). Water ripples across the fields of concrete and tends to flow right over the raw earth, too, a clay mix called “black gumbo.” Despite the best efforts of civil engineers, the natural streambeds that carry water from the county line to Galveston Bay aren’t much bigger than they were in 1950, when this was a city of 600,000. It’s grown fourfold since then.
If the water that had once sat on the golf course went downstream, where would it endup?
Unprecedented storms have brought three straight years of biblical floods, culminating in Harvey, which inundated 154,170 homes in Harris County—the Delaware-sized area that contains the city of Houston and another Houston’s worth of people outside it. Nearly half of those houses were in neither the 100-year nor the 500-year FEMA flood plain. Why did they flood? In part because Harvey was a leviathan of a storm swollen by a carbon-thick atmosphere, a once-in-10,000-years rainfall event. The weight of the water flexed the earth’s crust and temporarily sank the city a half-inch. And the homes flooded in part because Houston, like other cities, has reshaped its natural flood plains with concrete. Human construction now decides where the floods go.
Bixler is tanned and stocky, with close-cropped, thinning hair and a goatee. He used to work as a seismic engineer in oil and gas, and he brought a sheaf of printed maps and charts to a strip-mall Starbucks to demonstrate what he perceived as the dirty tricks that had been used to extract the course from the 100-year flood plain. “It’s very clever engineering,” he told me. In his white pickup, classic rock radio on the dial, we cruised the roads around Pine Crest. It is hard to imagine a flood on a sunny day, but Bixler did his best to assist. Near the top of Brickhouse Gully, as we looked down on a still pool teeming with turtles, he smoked a cigarette and reflected on his struggle to bring the development to a halt. “To be quite honest, I wish my neighbor had never shown me this. I’ve lost faith in the city,” he said. “It makes me ill that the people supposed to be protecting us, Harris County Flood Control, is helping these guys.”
In November of last year, shortly after Bixler dug up the flood maps, Meritage sought city approval for a special tax district to develop Pine Crest. Two months after Harvey, the prospect of a flood-prone 18-hole golf course on the upper watershed being paved into a thousand driveways was treated as a scandal. The editorial board of the Houston Chroniclewrote, “Our city can no longer tolerate a civic philosophy that insists on construction at any cost. We can no longer allow developers to treat our city as their playground for profit. … A natural sponge for floodwater would be transformed into a concrete pipeline that drains right into Buffalo Bayou.” And it was all happening along Brickhouse Gully, where, to avert future flood damage, the city had bought out 30 homes before Harvey and wanted to buy 15 more. Now, just uphill, it was enabling the construction of 900 more.
The outcry managed to postpone the vote, but little more—in April, the city gave the same proposal a unanimous go-ahead. Not everyone thought this was the best use of one of the largest remaining single infill parcels in the city. “If the Flood Control District had been able to purchase that land, I’d be designing and planning to construct a large detention basin in that area,” said Matt Zeve, the director of operations for the Harris County Flood Control District. By August, Pine Crest was well on its way to becoming Spring Brook Village, a project that embodies the challenges that Houston faces as it confronts an existential question: Did the city build its way into cataclysm?
Part 2: Terraform
On Aug. 25—the one-year anniversary of Harvey’s landfall—an astounding 85 percent of Harris County voters approved a $2.5 billion bond issue to fight flooding. It’s the largest bond issue in the history of Texas’ largest county and, everyone agrees, long-awaited recognition of the dangers that Houston faces. The support is a testament to how deep an impression the storm has left; it will quadruple the Flood Control District’s annual budget.
On a recent night, a friend took me to a party in west Houston where an older couple was celebrating the move back into their house, nearly a year after Buffalo Bayou came in through their back door. It was a hot, still night, but you couldn’t hear the stream through the woods, let alone see it—or, for that matter, imagine this group of older Houstonians in polo shirts launching kayaks out their garage doors, through brown water rushing in rapids over submerged pickup trucks.
Among the Harvey survivors I met were Patti and R.J. Simon; last August was the fifth time their ranch house on Brays Bayou had flooded. They waded to a neighbor’s elevated home. Then they finally moved. At 75, Patti told me she was done with the routine that had accompanied the years in their house since Tropical Storm Allison in 2001. Done putting the couch up on the kitchen counter each time they saw a bad forecast—and too old for it besides. So they left the neighborhood they’d known for decades, where Patti could walk to her job teaching French at the high school, and friends from church could come by and help move the boxes in and out every time the water came in the door. They lost the door frame where they measured the kids. This wasn’t their children’s main concern. “They would have committed us to asylum had we stayed,” she said. Harvey was their third flood in three years.
The Simons aren’t alone: Homes that once flooded rarely, if ever, are suddenly flooding more. The flood plains are on the march, creeping inland from surging bayous. All three of the conduits below Pine Crest—Brickhouse to White Oak to Buffalo, a double-play combination that drains this stretch of northwest Houston—are among the 12 fastest-rising urban waterways in the state of Texas. Since records began more than 50 years ago, Buffalo Bayou’s peak flows are up 250 percent. Brickhouse Gully’s peak is up nearly 400 percent. And White Oak Bayou, over a slightly longer time frame, is up nearly 600 percent. That doesn’t include Harvey, said watershed scientist and consultant Matthew Berg, who published the data. “Pretty much all the time, development is a piece of it,” he asserted. “It’s just a question of how much.” Two in three Houstonians believe lax regulations have made the city’s flooding problems worse.
Dean Bixler is one of them. The house where he and his wife live was built in 1960. It has now flooded three times, all in the past decade. What changed? He pointed to a giant, raised shopping center up the hill. It’s hard to prove these things, but Bixler felt it was obvious: The project had displaced scores of acre-feet (an acre-foot is an acre of water, 1 foot deep), some of which had wound up in his living room. Three times in 10 years. He lost two cars, and, like many people in Houston, he has learned to park up the block, on higher ground. (A joke I heard, which might not be a joke, was that the highest points in Houston are the soaring ramps of highway interchanges.)
Bixler saw in the Pine Crest development a supercharged version of his domestic battle. It wasn’t even in his watershed. But with 900 homes on a little more than 100 acres, Pine Crest was to be among the largest infill projects in the city of Houston, an irresistible morsel for builders and a red flag for wary residents. A Meritage executive said last spring to the Houston Business Journal, “What we saw was the biggest opportunity available in the city in terms of one tract of land.”
Members of Residents Against Flooding, including Bixler, allege that the map revisions distort how and where the water flows. The revisions were prepared by local hydrological engineers working for the site’s previous owners, MetroNational, and certified by the Harris County Flood Control District on behalf of FEMA. The 2007 map shows the golf course could be under roughly 200 acre-feet of water during a 100-year storm; as the developers carve a channel through the property, removing the banks from the 100-year flood plain, some of that water appears to go missing.
The course has been closed for only a couple of years, but in the tropical climate it has rapidly reverted to nature, with black-eyed Susans and dense scrub filling the fairways between stands of pine. It won’t be wild for long. At the low end is the wide grass halfpipe that will one day funnel runoff from 900 driveways into Brickhouse Gully, part of what Meritage says will be a state-of-the-art drainage-and-detention system that will actually improve conditions downstream relative to the old golf course. On sunny days, it will double as a lovely water feature along which residents can walk their dogs and ride bicycles. To pay for it and other improvements, Meritage got the city to approve a “special utility district,” a geographic tax assessment that will allow a $280 million infrastructure bond issue to be paid off through buyers’ future property tax bills. (It’s a way to pass costs onto buyers.) At the high end, the trees have been felled, and grassless fill rises from the street to escape the 500-year flood mark. Two-story homes, modest and with little flair, are open for tours.
The Harris County Flood Control District, for its part, has looked into all of this at the behest of Residents Against Flooding and stands by its certification of the work by the developers’ engineers. According to Todd Ward, a risk specialist and hydrologist at the Flood Control District, the revisions are just more accurate than the maps from 2007. (After complaints, the agency did its own analysis to verify this.) “When you look at it in more detail, you find there’s a lot more high ground than you might think. The actual volume stored on the site is quite a bit less than [what the 2007 map implies].” The new channel would be deep enough to bring the adjoining land safely out of the 100-year flood plain. The agency also promises that the Meritage development plan will have “no adverse impact” on water levels downstream, meaning that any flooding should be the same or less than if the development weren’t there.
“There’s no question that the amount of impervious surface … has impacted the amount of runoff andflooding.”— Shannon Van Zandt
In normal times, the complaints of neighborhood cranks might not be worth much against the word of the county’s hydrological authorities. But confidence in local water guardians is not high. Thousands of plaintiffs whose houses flooded during Harvey have filed suit against the Army Corps of Engineers, which runs the city’s two giant dams, for flooding their homes without warning by releasing water from the reservoirs as they neared capacity.
Meanwhile, the Harris County Flood Control District insists that the past three decades of new development have not caused more flooding—a view that is not widely shared. “People have always said the guy upstream of me is making me flood,” Zeve, of the Flood Control District, told me. “That has been a common theme throughout Houston history and always will be. No one is going to deny that development increases the volume of water, but detention regulates the peak flow.” Not just in theory: Zeve said the agency’s watchful eye has successfully mitigated the effects of new development since the early 1990s. To prove it, the agency has commissioned a peer-reviewed investigation of its own detention requirements (otherwise, he notes with some self-awareness, no one would believe them), and preliminary results suggest their requirements are effective. The city’s recurring flood issues, he argued, can be attributed to huge storms hitting a city largely built before anyone knew what a flood plain was.
Several experts I spoke to found that suggestion—that new development was not having an effect on flooding—ridiculous. As Houston has sprawled westward over the Katy Prairie, 75 percent of its flood-absorbent grasslands have been paved over, turning natural detention basins into roads and houses. In Brays Bayou, on the south side of the city, Rice environmental engineering professor Philip Bedient has found that rainfall is up 26 percent over the past 40 years—but runoff is up 204 percent. From 1996 to 2011, impervious surface in Harris County increased by a quarter, and from 1992 to 2010, the area lost almost a third of its wetlands—nearly 16,000 acres. It’s a correlation that’s been noted again and again. “There’s no question that the amount of impervious surface and the destruction of natural ecosystem surfaces has impacted the amount of runoff and flooding that we have seen,” said Shannon Van Zandt, the head of the landscape architecture and urban planning department at Texas A&M. “There’s no question about that. I don’t think it’s plausible to suggest that the detention is taking care of the issue.”
Critics say the system is built to approve more housing, not deliver objective science. Engineers who sign off on developments, assuring the public they will not contribute to flooding, bid for work from developers, who hire engineers who can make things pencil out. Those houses inside the dam basins whose owners are suing the Army Corps? Certification work for some of those projects was done by an engineering firm run by Houston’s current flood czar, Steve Costello. His firm was so deep in the trade that, when later elected councilman, he had to recuse himself “from more than 60 matters involving his firm, including city flood-control contracts and reviews of municipal utility district deals spread across the region,” according to an investigation in the Houston Chronicle.
Jim Blackburn, an environmental lawyer and professor in the Rice Department of Civil and Environmental Engineering, thinks the county must find a way to end this cozy relationship between engineers and their dual masters, developers and (according to state licensing) the public. One step would be to prohibit the types of flood plain map revisions that the developers had undertaken at Pine Crest. And then some. “As far as I’m concerned, Pine Crest proves the larger point, that we don’t have proper respect for the flood plain. We’re going to have to turn land over to water. Water will demand space in this city whether we like it or not.”
Part 3: Progress
Judge Ed Emmett, the chief executive of Harris County and most powerful politician in the region, agrees: “We’re not going to build our way out of this problem.” The saga over the development of Pine Crest is a Houston city issue, Emmett emphasized, but he said candidly: “It has been a mess.”
In the year since Harvey, the Republican has emerged as a born-again advocate for better flood control. He said Harris County has the strictest building codes and flood plain regulations in the country. It was his decision to schedule the bond issue for the one-year anniversary of Harvey. “When was the last time you saw 85 percent for anything?” he asked the crowd at a supporters’ gathering Saturday night. He’s criticized the way development was conducted for decades (some of it on his watch). Though a champion of the Grand Parkway, the outermost western beltway under construction, Emmett talked conservation at a forum in February: “We need to completely protect the Katy Prairie,” he said of the great plain in western Harris County. “Just set it aside and not touch it.”
There are signs of awakening in the city, too. First Harris County, and then Houston, mandated that all structures in the 500-year flood plain must be built 2 feet above the base flood elevation. The “zero net fill” rule forces all 500-year flood plain builders to dig an equivalent hole for every hill they construct. That’s among the strictest city building codes in the nation, in a place so famous for freewheeling construction that the British architecture critic Reyner Banham compared it to “a real-life Monopoly game.” It’s a recognition that, on this coastal plain, deep into the Anthropocene era, the FEMA maps no longer accurately describe what happens on the ground. (When FEMA updates its maps, the city will revisit those elevation rules.) During Harvey, Houston buildings in the 500-year flood plain were damaged at a slightly higher rate than those in the 100-year flood plain. Now the city has essentially quashed the distinction.
“Of all the flood disasters I’ve lived through, this one seems to be creating more change than in the past,” said Sam Brody, a planner who served on the National Academy of Sciences committee on urban flooding in the United States. Two feet at the 500-year level was not even on the table last year. “I was saying 2 feet freeboard at the 100-year level a year ago and people were saying, ‘You crazy academic, that’s never going to happen.’ ”
The homebuilders got their concessions, though. Rather than force builders to elevate structures above the flood line on stilts, the city permitted slab foundations on raised, compacted soil so long as the builder could demonstrate water flows didn’t change. This is a good thing, argues Marvin Odum, the former president of Shell Oil who was appointed Houston’s chief recovery officer after Harvey. “You basically have free rein as long as you don’t alter how water moves off of that property,” he said.
That’s how Meritage is doing it: houses on mounds, not stilts. While Meritage says all that fill is coming from digging out the property, it’s not obligated to do so under pre-Harvey 500-year requirements. Before the developer received its April go-ahead to create its utility district, the company did extensive outreach with the city council and residents downstream, according to Robert Moore, a vice president of land development at Meritage. “They should feel assured,” he said, “because it’s been checked, double-checked, triple-checked to make sure we aren’t going to have a negative impact on them at all.” Meritage says—and the Flood Control District agrees—that with the carved-out channel and associated ponds, the development will hold more water upstream than the golf course did. The company also suggested that the drainage work it had done before Harvey might have alleviated flooding on Brickhouse Gully, where 2,300 homes were inundated last August.
On approving the utility district, Houston Mayor Sylvester Turner cited the Meritage project as proof that the city’s new code would not scare off the homebuilders who have made the Bayou City a uniquely affordable American metropolis.
The downstream residents are victims. They’re also part of theproblem.
The chief risk facing Houston and Harris County is not the vulnerability of new developments, which do tend to be built higher, better, and upstream, but that of the older houses downstream, many built low to the ground and served by undersize storm drains. It may not be the case that your new neighbor upstream is making you flood. But the standards could be higher. Activists say the choice between an abandoned, flood-prone golf course and a subdivision of 900 homes was a false one. Susan Chadwick, the executive director of Save Buffalo Bayou, a group that opposes development in and around the river, argued in June that the city should have used eminent domain on the course to create a detention pond that would relieve Brickhouse Gully.
The engineers at the Flood Control District don’t disagree it would have been a good place for a pool. As we sat in his office going over flood plains, Todd Ward conceded it was a bit of a missed opportunity. We found the course on an enormous satellite map of Houston on the wall. In a giant city, it’s a small square. But there aren’t many undeveloped parcels of that size left. Some of the just-approved $2.5 billion bond will go toward buying out existing repeat-flooding homes downstream of the newly elevated houses at Spring Brook Village. The bond calls for $35 million of channel improvements to Brickhouse Gully to reduce the risk to 1,300 homes.
No matter how much care is put into terraforming, the development will dump more water into the flooded channels than it would had it become a giant detention pond instead. “You can literally measure this thing in gallons going into someone’s living room,” said Albert Pope, a professor of architecture at Rice. “There’s a way to get to fewer gallons.” Pope is one of a growing number of architects, planners, and engineers who argue for an anti-flooding plan that looks not just at what will be built (building codes, detention requirements) but also at what has been built. Those downstream residents are victims. They’re also part of the problem. He is working on a blueprint for a phased retreat of the 100,000 Houston structures that lie within the city’s 100-year flood plain. The bond was a good sign. But he added, “We are close to the end of engineering fixes.”
To John Jacob, a wetland scientist and director of the Texas Coastal Watershed Program, Houston’s long-term strategy must simply be to evacuate the 100-year flood plain. It’s the equivalent of demolishing a midsize American city. “It would be traumatic. It’s not something that should be taken quickly. But it ought to be a goal.” He believes that the city’s bayous, if restored to their full storm-surge size and shorn of encroaching roads and houses, have the capacity to handle another Harvey. That land could be appropriated as a series of linear green spaces akin to D.C.’s Rock Creek Park, with trails, fields, gardens, and paths. It’s an enhanced version of the city’s Bayou Greenways 2020 project, a $220 million investment to assemble a 150-mile network of hiking and biking trails. Houston is not a walkable city, but on the trail that winds along White Oak Bayou, cyclists and joggers share space in the sunken green bend of the floodway. Egrets alight by the water. It’s a glimpse of a Houston where the bayou is something to be loved, not feared.
In RAF litigation, there is a narrow, but possible, path to Supreme Court review. In the panel decision, the Fifth Circuit determined that the City and TIRZ 17 had a rational basis for transferring the flooding blight from TIRZ 17 to the neighborhoods (and that thus there is no viable 14th Amendment claim). However, RAF’s Complaint contained numerous and specific allegations that no rational basis existed (such as references to City-approved flood studies that gave defendants actual knowledge their infrastructure projects would worsen flooding in the residential areas). Under established law, on a motion to dismiss, a reviewing court must accept all well pled facts as true, viewing them in the light most favorable to Plaintiffs. This standard comes from the Supreme Court’s well known Iqbal and Twombly cases. In the context of RAF’s lawsuit, the Fifth Circuit did not accept the alleged facts as true but made its own determination that a rational basis existed, despite there having been no fact development in the lower court. In fact, the rational basis articulated by the Fifth Circuit was not only speculative and evidence-free, it was contrary to all the facts pled in RAF’s complaint.
As it turns out, this collision of the Iqbal/Twombly standard with a reviewing court finding rational basis at the motion to dismiss stage has been analyzed in a 2014 law review article, Rational Basis and the 12(b)(6) Motion: An Unnecessary Perplexity, published in the George Mason University Civil Rights Law Journal by Timothy Sandefur. Interestingly, some of the pitfalls associated with this collision played out in RAF’s case. For example, the City and TIRZ argued that the appropriate standard under the rational basis test required RAF to “negate any conceivably rational basis” for the defendants’ actions (see TIRZ Reply at 16). But as Mr. Sandefur explains, the rational basis test does not create the “logically impossible task of proving an infinite set of negatives or overcoming fanciful conjectures” (article at p.45). The standard urged by the City and TIRZ has been articulated by some courts at the 12(b)(6) stage, but other courts have stated that this burden on plaintiffs is too great, permitting those cases to move past motions to dismiss. The law review article illustrates that this collision plays out in cases across all circuit courts, and provides extensive case law research demonstrating the current state of the problem.
Moreover, right now, there is a petition for writ of certiorari pending with the Supreme Court, Niang v. Tomblinson, challenging the evidentiary standard to overcome rational basis review. Several amicus briefs were filed, including one by Mr. Sandefur. His amicus brief describes conflicting case law over whether rational basis is a “rebuttable” “presumption of fact” or whether judges may manufacture their own speculative rationalizations without fact development in the case. That description of course applies to the error underlying RAF’s Fifth Circuit decision. What this means is that the issue presented in RAF’s case is current, timely, and more likely to resonate with the high court if there are multiple requests for review based on similar fact patterns. Further, Supreme Court review often requires the presence of a “circuit split” (conflicting authority among the various circuit courts), which may be present for this aspect of rational basis review, in light of some of the cases discussed in the Niang v. Tomblinson briefing.
Here, the purpose of this write-up is not to supply the set of cases that would support a petition for writ of certiorari, but rather describe the issue that presents the best path for Supreme Court review. Our goal for further review is two-fold: first, we strongly believe that the Fifth Circuit erred, and should not have allowed dismissal of the lawsuit on a 12(b)(6) motion in light of the detailed narrative and extensive facts alleged in the Complaint (which should have been taken as true, per Iqbal/Twombly). The Fifth Circuit should have allowed fact development. Second, we are mindful that the litigation pressure on the City and TIRZ 17 may be keeping projects on the CIPs. In that regard, we observe that positive adjustments were made to the CIP in the weeks preceding Fifth Circuit oral argument.
We would not propose to file a petition for writ of certiorari with no merit. We recognize that the path is always narrow to the Supreme Court, but we also believe it is significant that the issue causing dismissal of RAF’s lawsuit has been identified and analyzed broadly, and that a rational basis case, where evidentiary issues are at play, is currently pending before the Supreme Court for review.
Irvine & Conner
A rational basis has to be a lawful basis. This point is so fundamental it is not often raised in these cases.
If lawfulness is not a prerequisite for a government rational basis almost ANY unlawful government activity can be justified! Rational basis under the argument that it raised the value of the TIRZ (but transferred their flooding to adjacent neighborhoods) would allow any unlawful abuse to be rationalized. Was Hitler was right: he had a rational basis!
The TIRZ did not deliberately flood us (hopefully); that is not a rational or designed basis. It was flooding which the TIRZ knowingly and intentionally caused but it was not part of a written plan in which the public had a right to participate. There was no rational basis. Collateral damage and especially not recklessly or intentionally caused collateral damage is not a rational basis.
For those concerned that our case is the same as Niang – it is not. Niang is a licensing case. We do not want a license and are not being deprived because of a state requirement that we needed to comply with. But the test as to how much lower courts should be bound by factual evidence and in 12b6 assumed factual evidence is certainly crucial. The Supreme Court lately has not taken that many purely legal cases except for Chevron deference cases. It does like flooding cases. Maybe it will take this one. It takes four justices to decide.
ABUSE OF DISCRETION STANDARD OF REVIEW. One other thing. You have to pick a standard of review for each question taken up on appeal; the SCOTUS does not have to grant cert for each question. The idea that RAF was trying to get in line before the later Harvey flood victims is an example of abuse of discretion not supported by any evidence in the record. Rarely do judges commit an error that is so fundamental that it is an abuse of discretion. Here is a case. Our attorneys had no way of knowing that the appellate court would latch onto the same patently impossible and outrageous assertion as that of the trial judge when the trial judge was supposed to be assuming our facts were correct and not making findings of her own, so they did not pick the trial opinion apart. It’s unimaginable that it would be repeated on appeal, so it was not raised on appeal. It is a legal standard to be raised now.
Residents Against Flooding (RAF) agrees with him that Tax Increment Redevelopment Zone (TIRZ) 17 can be an agent of change for the neighborhoods surrounding it. In fact, RAF believes it is the only entity with the monetary and engineering resources to fix the problems created by “development on steroids” fostered by easy access to property tax dollars.
When District A CM Stardig was defeated by Helena Brown, just as Nichols says, TIRZ 17 was purged of several of its bad players and neighborhood representatives were selected to replace them. Even though those representatives were outvoted 5 to 2 at nearly every meeting, there was still a substantial and welcome shift in the direction of the TIRZ.
During CM Brown’s tenure, a Capital Improvement Projects (CIP) plan was adopted by the TIRZ that provided much needed detention and bayou improvements. Placeholders were inserted for not yet identified detention projects that would benefit all neighborhoods south of I-10, including Nichols’. There were new efforts to work together to move these projects forward.
Unfortunately, CM Stardig defeated Helena Brown in the subsequent election and immediately began undoing some of the positive aspects of the “new” TIRZ.
Metro National proposed rebuilding the 62-acre-foot Conrad-Sauer detention pond adjacent to property they were redeveloping. It would be remade into a public park, Matthewson Road would be extended to Gessner with a bridge installed across the detention pond, and most importantly 44 acre-feet of detention would be added. Tenants of the new development wouldn’t have to look at an unsightly concrete lined hole in the ground, increasing the value of their property.
Because of the added detention, TIRZ 17 would pay for the work. Because Metro National was redeveloping the land anyway, they would perform the design and construction. They would donate land for the road extension. State and local officials touted it as a “Win, win, win!”
Unfortunately, the promise to add 44 acre-feet of detention wasn’t true. The engineering firm used by TIRZ 17 to substantiate these claims was also designing the Conrad-Sauer detention pond for Metro National. They claimed “water couldn’t get into the pond” so it was only working to half capacity. During the flood of 2015, power to the pond’s pumps failed and it overfilled, proving absolutely that water could get into the pond.
One of the two new neighborhood representatives, Reverend Bob Tucker, pointed to this conflict of interest and asked that they be removed as TIRZ engineers. This incensed Metro National’s CEO who coerced the City (Andy Icken and CM Stardig) to remove Rev. Tucker from the TIRZ Board.
Meanwhile a more cost effective 84 acre-feet of detention identified near Westview and Gessner was tied up in review by the City until removed from consideration by its owner. The Capital Improvement Projects plan installed under CM Brown was cancelled and a TIRZ Board committee was formed to write a new one.
RAF had suspended its lawsuit while TIRZ 17 was actively working with us. Frustrated by these changes and the loss of Reverend Tucker as our representative, RAF filed suit in federal court in May of 2016. Shortly after that, TIRZ 17 reinstated the cancelled Capital Improvement Projects plan.
At the time, Nichols was a member of the RAF Board, but soon resigned to focus on his role as head of the Frostwood Drainage Committee.
In his new role, Nichols identified a bold strategy – he would work with the TIRZ 17 Board while RAF applied pressure through our lawsuit. Nichols and RAF Chair, Ed Browne, had several breakfast meetings discussing the strategy. Nichols was clear that without the lawsuit, TIRZ 17 probably wouldn’t work with him.
Why bring this to light now? There are several reasons:
First, in its Motion To Dismiss (MTD) our lawsuit, TIRZ 17 attorneys called our suit moot because the reinstated Capital Improvements Projects plan had everything that we had asked for. This was disingenuous.
Revealed at last month’s TIRZ Board meeting and independently confirmed by RAF, TIRZ 17 will need to extend its tenure 7-10 years in order to pay for the projects in the Capital Improvement Projects plan.
Generated for RAF by a well-respected CPA, revenue estimates for the year TIRZ 17 would normally expire, 2029, are over $28 million. Extend the TIRZ by 10 years and we’re talking about 100’s of millions of dollars.
Was the TIRZ 17 Capital Improvement Projects plan a false promise strictly for lawsuit optics? It certainly seems so.
Meanwhile, TIRZ lawsuit strategy seems to be divide and conquer by appealing to one area’s self-preservation rather than protection for the whole area. Projects scheduled for years where Reverend Tucker was the Board representative are at a standstill while newer projects are moving forward rapidly.
While we agree with the two-pronged strategy, RAF is not the villain. Moreover, RAF contends that without a strong lawsuit, neighborhoods around TIRZ 17 would only see minimal flooding relief.
It’s important to note that Mayor Turner has made no secret of his desire to shut down the handful of rich TIRZ’s and use their money to pay down City debt. Noteworthy, a few weeks ago Auggie Campbell explained how TIRZ’s are useful to get around the revenue cap.
But what if there wasn’t a revenue cap? When we elected Mayor Turner we tacitly agreed to honor part of his campaign platform – If he solved the pension problem, voters would remove the revenue cap. On this November’s ballot, he will ask Houstonians to do just that – to remove the revenue cap.
Trouble is, without a revenue cap, the Mayor can capture TIRZ money and not be penalized for it, ending any hope for our timely flood relief. Even if TIRZ 17 gets its extension, it’s clearly subject to the whims of present and future politicians and TIRZ Board members.
DropBox has eliminated its Public folder, which we used to link a number of our documents and pictures to our website. No data has been lost, however, every link must be replaced. Given that RAF is a nonprofit with no paid employees, all web maintenance is by volunteers.
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The Nonprofit Working to End Man-Made Flooding in ALL of Houston
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Floodplains are changing. Areas that never flooded are flooding. Flood insurance is rising. New development could mean your home is next. Dr. Brody believes the biggest driver of this urban flood problem is human development.
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RAF has a fiduciary duty to support all of our membership. That includes informing residents that the CIP project for detention under the Spring Branch Memorial Sports Association ball fields on Attingham is still in flux. With this letter found in the Board packet from the February 2017, TIRZ 17 Board meeting, TIRZ 17 has reopened their attempts to install detention along Buffalo Bayou, targeting two areas specifically: “Lakeside Country and Old Farm.” Since large open detention is almost always less costly than chambered underground detention, the TIRZ 17 CIP project (T-1735) is still in play.
We sent this message to our iContact list on March 8, 2017. It’s included herein with additional links and typo corrections.
RAF Supports Frostwood in its Plea for Detention
The President of Frostwood’s Community Improvement Association, Mitchell Winkler, recently wrote a letter urging support of the Mayor, City Council and TIRZ 17 Board for TIRZ Capital Improvement Project (CIP) T-1735, known as Detention Basin A (“A” for Addingham). Promised for years, RAF agrees that this pond needs to be built post haste.
Any detention, anywhere, is desperately needed. However, there are concerns and a backstory you should know. For example, Detention Basin A is next door to brand new, mega-sized complexes, near Mac Haik Ford, that have no provision for their own stormwater run-off. Their water has no place to go. Is it realistic to believe that this basin is being built for residents of Frostwood and nearby?
Or is it more realistic that the added water detention is planned to service the new developments, and the TIRZ – once again – is not providing a real solution for your flooding. Detention Basin A will only put us back to square one, serving the storm water needs of the new development. We’ll need more.
TIRZ 17 devotes all of fiscal year 2018 to the acquisition of the land for Basin A and fiscal years 2018 and 2019 are devoted to building it. Total costs of Basin A are listed as $28M.
Water may be piped from as far away as Barryknoll. And estimated costs for conveyance under Kingsride and Frostwood to the basin will be about $9M, but won’t be finished until 2021.
How much of the estimated 240 acre-feet of needed detention will this basin hold?
Since Detention Basin A has insufficient capacity by itself, the same 2017-2021 CIP includes a second pond, Detention Basin B, where “B” stands for Bendwood. This pond only has $750,000 assigned in fiscal year 2021 for Planning. That’s four years away. How many times will you flood unnecessarily before it is actually constructed?
Given the number of times TIRZ projects have been reordered or rescinded, can you afford to rely upon their promise to keep this placeholder? Do you have any recourse if they don’t? If words don’t turn into action, RAF’s lawsuit will be the only leverage that we have.
In the meantime, TIRZ drawings have surfaced that seem to indicate the Memorial Drive project will receive water from the commercial properties in the southwestern corner of the TIRZ. Where will this water go? The Army Corps of Engineers says Buffalo Bayou cannot hold any more run-off. If so, the why is LAN studying detention on the Bayou?
Included in the TIRZ 17 Board packet, but not discussed during the meeting was a letter to Chair Ann Givens from LAN, the firm designing the detention basin. The letter was a proposal for modeling three or four detention basins along Buffalo Bayou, then comparing them to the Detention Basin A to determine which alternative is the most cost-effective.
RAF believes the most effective solution is the one that saves the most homes from flooding and has the highest probability of actually getting built.
In the same letter, to Chair Givens, LAN disclosed that they had included a “north-south hydraulic connection beneath IH-10 located west of Gessner Road” in their 2014 Regional Drainage Study (RDS) Update. “This connection was evaluated as part of the RDS Update to provide relief for the area north of IH-10 in the proximity of Gessner.”
This is where the new Metro National development is located. (The MN development is adding its water to the existing, over-taxed Conrad-Sauer Basin. And your taxpayer money is paying to beautify it for their tenants.)
In the letter, LAN says that since new detention was added under Mathewson Road, the new pipe wasn’t necessary and therefore will reduce “the required mitigation detention required on Buffalo Bayou.”
Mathewson Road drains the Metro Nation property, then dumps its water into the Conrad-Sauer Basin where it’s pumped into an overflowing IH-10 system. Where will the water discharge when the three Conrad-Sauer pumps turn on?
RAF is concerned that there may have been other “hidden” pipes modeled in the RDS that skewed Study results or protected specific developer’s properties. We wonder if the water levels at the corner of Gessner and IH-10 would have been significantly higher without the pipe. Now more water is captured in the Conrad-Sauer basin – more water on the IH-10 feeder roads with nowhere to go.
While RAF supports Frostwood’s pleas for detention, we also warn that this TIRZ continues to operate in a less than transparent manner.
Please remember that both the north side and south side of IH-10 are connected by underground pipes. A holistic solution to prevent flooding down to Buffalo Bayou must also include detention ponds in north side locations like the Spring Branch ISD bus barn or Haden Park. Land acquisition costs are high, so parks and public facilities make ideal locations for detention ponds.
The TIRZ timeline of years on end for a single detention pond is unacceptable. Why so long, so they can yank it away at the last minute as they have done before with other projects? One city contract – 13 years ago – promised to build several basins, north and south of I-10. Nothing was ever built. This is one reason to continue to support our lawsuit – so they can’t continue to break contracts – promises.
Moving more water into a flood-prone region is unacceptable. Spending any part of the anti-flooding budget to help CityCentre tear down a parking garage or beautifying a detention pond is unacceptable.
While supporting Frostwood’s request for a basin, RAF argues that a single detention pond is unacceptable. And it’s certainly unacceptable if it is used to detain storm water run-off for buildings that should have legally paid for their own.
The TIRZ has the resources to do so much more. Let’s stop thinking so small.
This is what we must advocate for:
A holistic solution with multiple detention ponds both north and south of IH-10 with no subsidies to developers until the flooding problem is solved!