Out of Control

After meeting with the developer, the district informed Baxter, in writing, that he would need to design his project "relative" to the new elevations, which meant the developer needed to provide storm-water detention. When some councilmembers, spurred on by the project's opponents in the surrounding neighborhoods, questioned the wisdom of allowing new construction on land that would soon be floodplain, Bart Standley, the developer's engineer, stepped up with a reassuring letter to Orlando Sanchez. Standley attached a copy of the district's requirements and explained to the councilman that Baxter was prepared to abide by them.

And Baxter was true to his word on part of the deal. Both the Albertson's and the apartment site have been raised above the new floodplain. But according to city records, the supermarket -- six acres, including a giant parking lot -- has no apparent on- or off-site storm-water detention; and the detention at Baxter's 9.3-acre apartment site is far less than what the flood control district would have required.

Baxter broke no laws, of course. While the flood control district must sign off on certain floodplain developments within the city limits, denying a building permit is not an option. FEMA, which oversees the flood insurance program, has delegated final approval to the city's floodplain manager. Culp says, despite what Baxter's engineer told council, the city had decided not to recognize the new map until FEMA actually published it, which didn't happen until April 2000.

"If this gentleman…said he was going to do his best to meet all the requirements of the new map, that's an agreement he made with somebody else," Culp told the Press. "Obviously City Council was involved in encouraging him to do that; the homeowners were requesting he do that. But that's not something we could force upon him."

Loomis, who is certified by both the state and national associations of floodplain managers, at one point argued that the county broke a federal law by enforcing "preliminary" floodplain data before FEMA began publishing the new map. The flood control district "is wrong," Loomis says. "You can't start using the new maps until a letter of final determination has been issued by FEMA. Because, until then, it can change. Once we got the LFD [letter of final determination]" -- in late January 2000 -- "we could accept that map and start using it."

Fred Garcia, director of communications for the flood control district, says he is "at a loss" to defend Loomis's accusation that the district did something illegal. "We started using the information in October 1998 because FEMA acknowledged their intentions to revise the [map] based on new information," Garcia says. "We felt it was the best available information at the time."

But Culp counters that FEMA rejected the county's hydraulic computer models in the mid-1990s; the district eventually lowered the flood elevations one foot, which FEMA accepted. "Were we supposed to use that map, too?" Culp argues. "If we had been enforcing the proposed models, the city would have been enforcing less than the best data."

Yet the city's use of the old data denied residents the storm-water detention they probably deserved. Because the city didn't start using the new flood elevations until January 2000, Baxter had almost a year to fill his site before it became subject to the city's storm-water detention policy.

"These people were filling the floodplain as fast as they could get the dirt in there, prior to the map change," Loomis says, adding that though he knew the floodplain had been altered considerably, there was nothing he could do. "It was out of the floodplain at the time, so they didn't need a floodplain fill permit. We had no control over that."

Actually, Loomis seems to have made a conscious decision to allow Baxter to violate the spirit of the city's policy. For one thing, FEMA encourages local communities to use more restrictive data, including draft maps and preliminary flood insurance surveys. For another, the federal agency had completed its review of the actual floodplain delineations by October 1998. The new maps were delayed another year while FEMA reviewed additional data on subsidence in the upper reaches of the watershed.

Jim Blackburn, a Houston environmental attorney whose clients include the homeowners suing the flood control district, says allowing Baxter to develop his land based on an outdated map "just makes [him] nuts."

"That whole project was approved on the basis of old maps, which means they were already obsolete from a flood control standpoint," Blackburn says. "These are the kinds of things that happen all over this county, and it has to do with an attitude of protecting developers more so than protecting the public."

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"What's the difference between God and lawyers?" Mike Loomis asks.

"What?"

"God doesn't think he's a lawyer."