Plans to dump an average of one cubic yard of fill per linear foot for 1,000 linear feet or more below the OHWM require a permit from the Corps.
A pre-construction notice must be filed with the Corps for any project that involves a discharge into a special aquatic site (like a wetland) or is in excess of 500 feet in length, or that involves a discharge of greater than an average of one cubic yard per running foot below the OHWM.
The Texas Commission on Environmental Quality (TCEQ) is responsible for certifying that any permits issued by the Corps for discharging dredged or fill material into federal waters, including the bayou, complies with state law.
Some smaller projects – those that impact less than 1,500 linear feet of the stream, for instance – may still require a Corps permit but may not need a review by the TCEQ as long as they incorporate Best Management Practices – silt fences, for instance — for controlling erosion and sediment loss during construction until the bank has been stabilized.
Even the Harris County Flood Control District must have a permit from the Corps of Engineers to dredge and “improve” our waterways. The district has a General Permit to dredge and fill for “routine maintenance and repair.” It specifically prohibits deepening and widening channels, channelization or the use of concrete except to replace existing concrete, or damaging special aquatic sites like wetlands. That permit expires on Dec. 31, 2019.
Any private citizen inside the city limits who wishes to conduct any “construction activity” in the floodway or floodplain must have a permit from the City of Houston Floodplain Management Office. According to the Jamila Johnson, director of that office, “to obtain a floodplain development permit, the applicant is required to provide a Certificate of Compliance indicating that the applicant has received all permits, licenses or approvals required by federal law, statute or regulation or required by any State of Texas statute, rule or regulation – this would include required approvals by the [Army Corps of Engineers].”
Outside of the city limits, Harris County also requires a permit to build “fences or fence-type walls” in the floodway or floodplain “provided it can be demonstrated the flow of the base flood will not be impaired and that base flood elevations will not be increased during the discharge of the base flood.” (p. 39)
Property owners who lose bank to erosion or a shifted channel may not legally rebuild that bank. The property line shifts with the shifting of the channel, says former assistant state attorney general Joe Riddell. “When the bank gets eroded the new gradient boundary will be on the new bank. A riparian landowner can gain or lose land depending upon whether the bank gains or loses soil.”