4

Damage Control

White Oak Bayou is 25 miles long, from its sluggish rise in northwest Harris County to its concrete-lined terminus in downtown Houston. In September 1998, a band of thunderstorms aligned themselves with the White Oak and, after gathering the power and fury of Tropical Storm Frances, raked a southeasterly path across the county, through downtown and into Pasadena.

The flooding of White Oak Bayou started in Jersey Village just before dawn. By mid-morning, 1,167 houses in the watershed were damaged, with the worst flooding occurring upstream of North Houston-Rosslyn Road. Entire neighborhoods were decimated in that reach of the bayou: 400 homes flooded in Woodland Trails West, 196 in Woodland Oaks, 200 in Jersey Village, another 100 in Creekside Estates. Most of the houses had never flooded before. According to the flood insurance rate maps in effect at the time, most of them were outside the 100-year floodplain, so, accordingly, residents didn't see any particular need for flood insurance.

In the storm's aftermath, flooded homeowners blamed upstream real estate development, specifically about 2,500 acres of mostly residential subdivisions west of Fairbanks-North Houston Road. But in its November 17, 1998, "General Report" on the storm, the Harris County Flood Control District noted that the home builders were required to construct on-site storm-water detention ponds that reduced the amount of runoff that went directly into the bayou. And, the district's report said, prior to Tropical Storm Frances, the county had built large detention basins as part of a regional storm-water management plan for White Oak Bayou. The new detention had saved an estimated 1,000 homes from flooding, according to the district, which concluded that, given the "unprecedented" magnitude of Frances -- the storm appeared to establish record rainfall and flood stages along the White Oak -- extensive flooding was probably inevitable.

But the district's General Report on Frances, comprehensive as it appeared to be, didn't disclose everything district officials knew about the disastrous White Oak Bayou flood of September 1998. The district's on-site detention policy, for instance, had done little to protect the neighborhoods that suffered the most damage. Much of the upstream development the policy was aimed at didn't actually have on-site storm-water detention. Some developers had their construction plans approved before the policy went into effect. Others opted instead to pay a $3,000-per-acre impact fee, with the understanding that the flood control district would build the detention as part of the White Oak Bayou regional plan.

But that plan didn't offer the victims much flood protection either. The plan's detention basins originally were designed to reduce flooding between Jersey Village and North Houston-Rosslyn Road. But less than one-third of the 160 acres of storage capacity had been constructed by September 1998, by which time thousands of acres of undeveloped land in the watershed had been paved over with concrete.

The district's report also neglected to point out that county drainage officials knew as far back as 1991 that, because of development in the watershed, hundreds of uninsured homeowners were unknowingly living in an unmarked floodplain. Rather than alert residents that flood insurance might be in their best interests, the district withheld the information until new flood insurance rate maps took effect -- in April 2000.

Ed and Norma Jean Kerr undoubtedly would have had insurance if they had known their house was in the floodplain. The Kerrs had lived in Woodland Trails West, just south of the bayou, since 1980, but had never come close to flooding. Ed, an electrician, came home from work September 11, 1998, to find six inches of water in the house and Norma Jean standing by the back door with a broom.

"She had been there all day, trying to push the water that was coming through the front out the back," Ed recalls.

The Kerrs complained to a friend, who put them in touch with Jim Blackburn, a high-profile environmental lawyer and activist who has done extensive research on the history and policies of the Harris County Flood Control District. After meeting with Blackburn, Ed and Norma Jean recruited more than 300 of their neighbors and filed a class-action lawsuit against the district and more than a dozen developers and engineering consultants.

The suit alleged that the district's failure to enforce its own policy and carry out the White Oak Bayou regional plan had, in effect, condemned the residents' homes as storm-water detention basins for upstream development. Blackburn claims that the district's actions -- or, in this case, lack thereof -- amount to a "taking" of private property that is not allowed under the state's constitution without compensation.

"My view is, the county was just hoping people wouldn't flood," Blackburn says. "I don't think hoping people won't flood is sufficient to get around liability under the Texas Constitution."

Last year the homeowners agreed to an out-of-court settlement with most of the developers and consultants. They were confident the remaining case against the flood control district and two municipal utility districts would be heard in court. But in June, two days after Tropical Storm Allison, most of the plaintiffs flooded again. Eric Andell, a visiting judge in the 130th District Court, issued a summary judgment that dismissed the case without comment.

Andell's ruling, which was not accompanied by a legal opinion, irked Blackburn more than usual, if only because the timing was so rotten. But he says his clients have authorized him to pursue the case to the state Supreme Court, if necessary. Sheila Wyborny, a retired science teacher, and her husband, Wendell, say the location of their home in the floodplain renders it worthless and gives them little choice but to pin their hopes on Blackburn's unorthodox legal strategy.

"This judge basically said you can't hold the flood control district accountable," Sheila Wyborny says. "Well, I'm a teacher. Teachers are accountable. Every profession is accountable. Why can't Harris County be held accountable for its actions?"


Alone on a dark highway 21 years ago, Jim Green had a conversation with himself. It was well after midnight, and the then-director of the Harris County Flood Control District was driving back to town from an out-of-state dog show.

One side of Green's internal dialogue consisted of reflections on the three major "rainfall events," as drainage professionals call them, that swamped Houston in 1979. Property damages added up to more than $425 million. The number of flood insurance claims filed in Harris County that year exceeded the combined total for the rest of the country.

The other side of the conversation echoed what Green had heard continually since then. Photographs of half-submerged neighborhoods and subaqueous highways had prompted some harsh assessments, in Life magazine and other national media, that Harris County lacked the will and creativity to deal with its drainage problems. Even the locals had gotten on the district's case, proposing different theories about storm-water management, including one that called for a moratorium on development.

As Green drove that night, the negative perceptions provoked by the '79 floods and the criticism of his office converged into a nagging refrain: Do something, do something. As he described it a few months later, in November 1980, at a meeting of county commissioners, by the time he got home, Jim Green had had an epiphany.

"About 3:30 that morning, I decided the time had come for the flood control district, with the blessing of Commissioners Court, to step forward and become the responsible and lead agency on this issue," he announced. "I am fully aware of the great responsibility and accept it eagerly."

Green then proposed the first official drainage policy in the history of the Harris County Flood Control District, which was created in 1937. Basically the policy stated that new real estate development could not aggravate known flooding problems or create new ones. Developers would have to submit engineering plans to show how they planned to maintain storm-water runoff from their new projects at predevelopment rates.

It's a bit startling to realize that as recently as 1980, the Harris County Flood Control District thought flood control was someone's else job. But to that point, the district's psychological makeup tended toward wishful thinking and denial.

"The mind-set was 'Let's develop as fast as we can and increase tax revenues and somehow all the problems will work themselves out,' " recalls Green, who set local drainage policy from 1973 until 1990. "That had to change."

Green's storm-water detention policy was a "benchmark" for flood control in Harris County, says Steve Fitzgerald, who joined the district in 1981 and is now its chief engineer. But like many attempts to alter the established order of things, it met with considerable resistance.

"It was a monumental effort to get a public consensus, between 1980 and 1984, on a requirement to use people's land for drainage facilities," Fitzgerald says. "Detention was a four-letter word. It was not something the development community wanted to do."

The district had been considering a requirement for on-site detention since June 1976, after almost a foot of rain fell in southern Harris County in a six-hour period. Flooding from Brays Bayou, which had been widened, deepened and lined with concrete by the Army Corps of Engineers in 1960, caused $20 million in damages to the Texas Medical Center. Rice University, the Museum of Fine Arts and hundreds of homes took on water.

Drainage officials were alarmed in particular because Brays Bayou did not spill its banks. The storm-sewer system was overwhelmed by runoff from new development, which was more than the corps project was designed to handle.

A similar channelization of 11 miles of White Oak Bayou upstream from its confluence with Buffalo Bayou had been completed by the corps in 1972. Three years later, realizing the project was obsolete, the corps authorized an extension of the concrete lining all the way to Jersey Village. But the plan was stalled by opposition from the Bayou Preservation Association, an environmental group that had waged a lengthy, contentious and ultimately successful campaign to kill the proposed channelization of Buffalo Bayou.

Like the corps, the Harris County Flood Control District had operated on the assumption that continuous improvements to the county's drainage channels could handle any amount of storm-water runoff. For decades, the district's mission -- unrealistic, but enthusiastically endorsed by the development community -- was to develop this drainage "super system" to completely eliminate the floodplain from the county's 6,600 miles of bayous and tributaries.

Green was careful not to renounce the super system when he went before county commissioners in November 1980. But with Houston growing quickly in every direction -- some estimates put the rate of land consumption by new development at 32,000 acres a year -- he could propose a flood control measure that, in Harris County anyway, was a bit radical.

"Tom Langford [Green's predecessor] thought we were nuts," says Terry Hershey, a Houston environmentalist and founder of the Bayou Preservation Association. "He said there were maybe five people in town who didn't support what they were doing. Green would talk to us. He had a sense of humor. He just didn't have enough strength to counteract all the brainwashing that was going on."

Indeed, even as Jim Green was formalizing his on-site detention policy, a group of developers with land interests in the upper White Oak Bayou watershed were devising an "alternative" to it. The so-called Pate Plan, named after the engineering firm commissioned (and paid) by the developers, analyzed ways to drain more than 15,000 acres of future development into the bayou without increasing downstream water levels.

It had already been determined, during the district's 1983 flood hazard survey, that the White Oak's capacity between Fairbanks-North Houston Road and Cole Creek was inadequate to handle additional storm water. The survey found that nearly a dozen neighborhoods in that reach, including Woodland Oaks, Woodland Trails West and Creekside Estates, were at "very high" risk of flooding during a 100-year storm. In theory, such storms -- which measure about a foot and a half of rain in a 24-hour period -- have a 1 percent chance of occurring in any given year. In Houston, the odds are quite a bit higher; two of the three heavy rains in 1979, including Tropical Storm Claudette, were 100-year events.

The Pate Plan proposed to "eliminate the existing floodplain in the upper portion of White Oak Bayou and provide for full development of the remainder of the watershed without a reoccurrence of downstream flooding potential." The plan envisioned a 160-acre detention basin just east of Fairbanks-North Houston Road and two smaller ponds, totaling 130 acres, between Vogel and Cole creeks, east of Antoine Road.

The plan also called for widening and deepening the main channel from Cole Creek to Jones Road and construction of a diversion channel around Jersey Village. Pate recommended that the district set up a tracking system to make sure the detention sites and channel improvements were constructed "to keep pace with development within the watershed."

The cost of this "joint effort," as the Pate Plan described it, was estimated at $66 million, with the county covering about $20 million of the tab and individual developers picking up the rest through "contributions," or impact fees, of $3,000 per acre of development. This was clearly a better deal for the developers: According to Pate, on-site detention could cost as much as $5,600 an acre. Pate also reasoned that a "regional detention system," rather than dozens of smaller on-site ponds, would be cheaper and easier for the flood control district to maintain.

In November 1984, almost four years to the day since he announced his epiphanic on-site detention policy, Jim Green presented the Pate Plan to Commissioners Court. Although the new plan for White Oak Bayou seemed to contradict his earlier edict, Green explained that the district had begun exploring the idea of regional storm-water management plans for other watersheds. To that end, the Pate Plan was "a reasonable, ambitious and innovative approach to storm-water control [that] the district…stands ready to implement."


To allow 2,500 acres of development to begin immediately, Pate proposed a $25 million interim plan to "eliminate" the existing floodplain upstream of Cole Creek. The interim plan recommended that the district purchase land for the detention ponds but hold off on excavating the sites until later. In the meantime, Pate advised the county to proceed with the channel improvements from Cole Creek to Jersey Village and preliminary excavation of the diversion channel around Jersey Village.

The basic blueprint for a storm-water management scheme like the Pate Plan is straightforward enough: Improve the channel to increase its capacity to convey the upstream runoff and dig a hole to detain any excess before it reaches flood-prone areas downstream. The difficult part is calculating how much storm water will be generated by a development, how quickly it will run off, how much bigger to make the channel and how deep to dig the detention pond.

Since no engineer can anticipate every condition -- and everything from a small pile of dirt to a new parking lot can skew the calculations -- the Pate Plan was based on "reasonable" assumptions. Pate began with the '83 flood hazard survey of White Oak Bayou, which analyzed the existing land conditions, or hydraulics, inside a 110-square-mile diagonal from downtown to the intersection of Highway 290 and Huffmeister. Using computer programs developed by the Army Corps of Engineers' Hydrological Engineering Center, or HEC, the impact of the watershed's hydraulics on the bayou's water levels, or hydrology, was determined to identify the White Oak's 100-year floodplain.

Pate updated those assumptions, first by determining how 15,000 acres of new development would reduce the natural hydraulic efficiency of the watershed, then by calculating how the $66 million regional plan would alleviate the subsequent hydrologic impacts. Pate concluded that with channel improvements and storm-water detention, the flows of the White Oak would be completely contained within the channel during a 100-year storm. Among the assumptions reached by Pate: The 160-acre detention pond at Fairbanks-North Houston Road would reduce peak flows in the area of Woodland Trails West and Woodland Oaks by nearly 105,000 gallons per second -- more than enough to allow 2,500 acres of new development to begin immediately.

This was, of course, what the developers had hoped Pate would say when they hired the firm -- not that who paid for the new HEC analysis would have made much difference. If the flood control district had initiated the White Oak regional plan, the agency would have hired a local engineering consultant to do the analysis, notwithstanding that the consultant also would be in line for design contracts when the vanquished floodplain was developed.

This is the "fatal flaw" in Harris County's oversight of floodplain development, says Jim Blackburn. In a speech called "Place, Spirituality and Activism," delivered October 11 at the Rothko Chapel, Blackburn likened the political contributions of engineering consultants to the bribery schemes in a "third-world country." He then proceeded, in detail, to list more than $600,000 in recent political contributions to county commissioners from engineers, developers, architects and contractors who make their living off new development.

For his lawsuit against the flood control district, Blackburn secured the services of Larry Dunbar, a hydrologist who has become something of a black sheep in the local engineering community. After years of taking the stand as an expert witness on behalf of developers and engineering consultants, Dunbar became an attorney and started using his experience on the other side of the aisle. Though he is careful not to disparage the entire profession, Dunbar says there are engineers who set aside their responsibility to the public in favor of their immediate benefactors.

"Their job is to walk the client as far up to the line as the client is willing to go," Dunbar says. "The established ones are very good at it. They know how far is too far and where to tweak the data that's put into the models. Then there are a whole bunch that really don't know what they're doing."

Precision would seem to be in the public's best interests, but county plan reviewers rarely challenge the assumptions of other engineers. The county's chief engineer, Steve Fitzgerald, says this deference is partly a matter of limits imposed on county resources and partly because there's no reason to suspect the models are manipulated to ensure a predetermined outcome.

"I reviewed plans for a long time, and I have heard those contentions before, and of course it is possible and it probably does happen," Fitzgerald says. "But just based on my experience, it is very rare that a professional engineer would do something like that."

When he first became an engineer in the 1970s, Fitzgerald recalls, the corps' computer models relied on punch-card data and "antiquated" topographical maps. These primitive tools increased the potential for error, as well as the time it took to do the modeling for an entire watershed. Indeed, before construction could begin on the first phase of Pate's interim plan -- the expansion of the White Oak's main channel -- the latest assumptions were washed away.

In May 1989 and again the following month, violent thunderstorms flooded a total of 2,376 homes, nearly 400 of them along White Oak Bayou. During a routine postflood analysis, the district noticed that, based on rainfall estimates, the amount of flooding in the White Oak watershed seemed inordinately high. "We thought, 'What in the world is going on here?' " Fitzgerald recalls. "When we compared the real flood to the models we had on Brays Bayou, it was a pretty good correlation. But on White Oak, the flood levels were a lot bigger than our models were showing."

The district shelved construction of the phase one channel improvements and hired the engineering firm of Klotz Associates to update the assumptions for White Oak Bayou. Klotz gathered data for more than a year, then performed an analysis that found the hydraulic models used by the county in 1983 contained significant errors. The model, which had been approved by the Federal Emergency Management Agency, factored in large drainage areas that didn't exist and under-represented the amount of new development that had occurred. The model also did not accurately measure the capacity of the 11-mile stretch of the White Oak that had been channelized by the corps, nor did it correctly calculate the effect of bridge abutments and channel bends on water levels at different places along the bayou.

The upshot of Klotz's analysis was that the White Oak Bayou floodplain was much bigger than the Pate Plan had assumed. In a June 1991 letter to Art Storey, who had replaced Jim Green, Wayne Klotz of Klotz Associates informed the flood control district that that flood levels were much higher than assumed at the White Oak's confluence with Buffalo Bayou.

The corrected models also showed water surface levels two to four feet higher than Pate had assumed between West Little York and Alabonson roads. In flat, clay-soiled Houston, the impact on the floodplain of a two- to four-foot rise in water levels depends on where the rise occurs. If that much water spilled onto a natural, undeveloped floodplain, it might go 100 yards. If it spilled into a subdivision, it might spread for half a mile. Unfortunately, most of that stretch of the bayou is subdivisions.

Klotz recommended a "workable plan" that shifted the emphasis of the regional plan downstream to an area that included the Arbor Oaks and Inwood Forest subdivisions, where most of the 1989 flooding had occurred. The new plan consisted of widening the channel from Cole Creek upstream to North Houston-Rosslyn Road and the immediate construction of two detention ponds, one at North Houston-Rosslyn and the other at Tidwell Road. Klotz also recommended the district construct a sheet-pile "transition structure" to control the depth and velocity of the stream as it enters the wider channel.

"I recognize that this recommendation represents a radical departure from the previous plan," Klotz wrote to Storey. "I also recognize that a new set of plans will be required for White Oak Bayou. We are prepared to move quickly on your behalf…"


Commissioners Court approved the Klotz version of the White Oak regional plan in December 1993. A few months later, the flood control district awarded construction contracts for the channel improvements and excavation of the detention ponds.

Meanwhile, the district submitted a Letter of Map Revision, or LOMR, to FEMA that represented the latest floodplain conditions in the White Oak watershed. The LOMR corrected the hydraulic modeling errors found in the '83 flood hazard survey and, using updated assumptions from Klotz Associates, plotted a new floodplain.

At the time, the mapped floodplain on the south side of the bayou, downstream of Fairbanks-North Houston Road, looked like no other in Harris County or, perhaps, anywhere else. A 1990 insurance rate map shows odd fingerlike islands throughout the Woodland Trails West and Woodland Oaks subdivisions. The islands represent land that, topographically, was considered beyond a 100-year storm, even though they are surrounded by land that is deep in the floodplain.

The LOMR submitted by the district would have eliminated those islands, putting both subdivisions entirely in the floodplain. The new floodplain would have also gotten significantly larger upstream to Jersey Village. But before FEMA could complete its review of the map revision, the flood control district withdrew the LOMR at the request of the West Houston Association, a chamber of commerce-like lobbying group that represents real estate interests in the White Oak watershed.

The association had objected to some of the assumptions reached by Klotz and asked for an opportunity to study them more closely. The district authorized an "Ad Hoc Committee for the Resolution of White Oak Bayou Modeling Concerns," which consisted of three engineers representing the West Houston Association, two engineers from the district and a hydrologist from Klotz Associates. The committee met eight times between March and July 1994, sifting through reams of hydraulic and hydrologic data on White Oak Bayou.

The ad hoc committee's recommendations were numerous and, at times, highly technical. The gist of the commentary was that the Klotz model had erroneously calculated a variable called the roughness coefficient, which represents the watershed's capacity to naturally absorb runoff. The result of the miscalculation, according to a committee report, was "higher water surface elevations than would normally be expected…"

After reviewing the West Houston Association's recommendations, Dunbar said some of the concerns "made sense," although, in his view, there wasn't "anything that gave a lot of detail to what all the issues were." Dunbar suspects the association ultimately convinced the district to change some of Klotz's assumptions, which had the effect of decreasing the size of the floodplain upstream.

"Whether or not [the floodplain] was knocked down legitimately with legitimate comments or it was 'Let's try to fudge as much as we can and get this thing knocked down,' I don't know," Dunbar acknowledges.

However, he adds, the real question is why the West Houston Association was allowed to hold up a map revision while its engineers, with the help of the district's consultant, pored over the district's data. Indeed, among the association's recommendations was that the district consider even more input from the "technical community" before reaching any conclusions on the map revision.

"Obviously the West Houston Association wasn't overly excited about seeing this come out," Dunbar says. "But, hey, they're developers. They don't want the Harris County Flood Control District to do something without them knowing about it. Well, hey, join the rest of the public, guys."

It took almost a year, but the district and the association settled their differences, just as construction of the first phase of the White Oak Bayou regional plan was wrapping up in October 1994. Klotz factored in the impact of the channel improvements and two detention ponds, and a few months later the district submitted a new Letter of Map Revision, which soon fell into a three-year black hole created by another dispute, this one between the district and FEMA over subsidence.

Finally, in August 1998, the Harris County Flood Control District announced that FEMA had accepted the map revisions, and allowing for final comment, the new flood insurance rate maps for White Oak Bayou would be published and available to the public in 18 months.

A few weeks after the district's announcement, on September 11, 1998, Ed Kerr came home to find his wife heroically swinging a push broom to keep a stream of water four inches deep moving out the back door of their one-story house on Woodlands West Road.

"I was as irritated as I could be," Ed remembers.

Upstream in Jersey Village, Bob Mays thought he had seen White Oak Bayou at its most threatening in 1992, when it backed up three feet in the street and came over the sidewalk. When he awoke that Friday morning after Tropical Storm Frances, the downstairs of his house already had 13 inches of water in it.

A couple of months later, he was taking yet another load of debris to the curb when a neighbor walked over. "He said, 'Have you heard about this lawsuit?' " recalls Mays, who has lived in Jersey Village for more than 20 years. "I said, 'No, but I was hoping there'd be one.' I just knew we weren't supposed to flood in '98, and we did. You just don't have an area that sits here for years and never flooded, then all of a sudden…"


Harris County Flood Control District officials declined to discuss the specifics of Kerr, et al. v. Harris County Flood Control District, et al.

However, chief engineer Steve Fitzgerald and spokesperson Fred Garcia, who is also an engineer, answered questions from the Houston Press about the district's policies and the evolution of the White Oak regional plan. Fitzgerald also gave deposition testimony under questioning by hydrologist-attorney Larry Dunbar.

Comments from both sessions offer insight into the district's actions that is lacking in the legal arguments filed by the Harris County attorney's office. Early on, in a perfunctory pleading, the county's attorneys argued that developers in the upper White Oak watershed had failed to abide by the on-site detention requirement. Later, in a position the district still maintains, the damages from Tropical Storm Frances were attributed to an "act of God."

Yet Fitzgerald -- who was project manager for the White Oak regional plan during the 1980s and, in the 1990s, coordinated the district's capital improvement budget -- acknowledges that critical components of the Pate Plan were shelved in favor of improvements farther downstream. In his deposition, Fitzgerald explained that channel work couldn't proceed past North Houston-Rosslyn Road until the 160 acres of detention at Fairbanks-North Houston Road were completed -- and the district had no money to excavate the ponds.

In an interview, Fitzgerald explained that "by 1990 we bought all the sites and bought the right-of-way all the way to Jersey Village." "But," he continued, "resources are limited. Sometimes it's not the money. It's having to move this project or buy that right-of-way while we can. We were fighting to get projects in the ground as quickly as we could."

Fitzgerald maintains that the flood control district has spent $50 million on the White Oak Bayou regional plan to date, "and we're still building it." That argument holds no water with Blackburn, who points out that the district made storm-water detention at Fairbanks-North Houston Road a priority after the homeowners sued.

"What [the district] is saying is 'As long as we're trying to solve the problem in some general sense, there are people who are going to get flooded by what we do in the interim,' " Blackburn says. "But the Pate Plan showed that if they didn't build the project and only allowed the development to go in, people on White Oak Bayou who had never flooded before would flood. That's what I consider the government taking -- no public money was available, the projects weren't built, and private property was used to store storm water."

Blackburn began arguing the basic theme of the homeowners' lawsuit, which was filed exactly one year after Tropical Storm Frances, in March 1973, when he wrote a 150-page case study of Texas drainage law and Harris County flood control policy for the Texas Marine and Coastal Council, a nonprofit conservation group in Austin. Almost 30 years ago, Blackburn accused the district of overseeing a sort of caste system of landowners:

"These are (1) large landowners wishing to develop their land and (2) all other landowners, including city residents who own smaller units of land. Under Texas law and the development rules that are being implemented by the state, county and City of Houston, it is apparent that the large landholder's right to develop is being protected and enhanced while the smaller landholders' rights are ignored."

Both sides have gone to some expense to bolster their claims with expert opinions. The case file is loaded with impenetrable reports on rainfall amounts (was Frances, as the district claimed, really an "unprecedented" storm?), the hydraulic models employed by Pate and Klotz, and the impact of upstream development on downstream flooding. It's unlikely that, should the case ever reach a jury, it will swing on these analyses; using the same basic data, they reach diametrically opposed conclusions.

The extent to which Harris County knowingly allowed unmitigated development to proceed is similarly unclear. Blackburn says he hasn't seen a "detailed accounting" of the on-site detention built by developers in the White Oak watershed. Fitzgerald and district spokesperson Garcia argue that developers have been required to provide on-site detention since 1984. They decline to be more specific about new construction in the White Oak watershed, citing the litigation.

"I think the safest thing to say about that is the development that occurred in the last 15 years has occurred within established and adopted public policy," Garcia says. "It's legal development as far as we're concerned."

But according to an accounting of construction plans approved by the county, on-site detention was built for only 358 of the 2,500 acres of development identified in the district's "interim" regional plan for White Oak Bayou. Meanwhile, the developers apparently believed the flood control district was building the regional ponds downstream. Bob Barron, a board member for Municipal Utility District No. 168, which built the storm-water drainage system for the 940-acre Steeplechase development at Jones Road, testified in an affidavit that the MUD agreed to pay $390,871 in impact fees in lieu of on-site detention.

"Under the agreements, the [district] required no additional on- or off-site storm-water detention facilities or additional system capacity," Barron testified. "Therefore by participating in the regional plan and paying almost $400,000…the [MUD] met all governmental flood control requirements for storm-water runoff into the White Oak Bayou."

And by the district's own admission, the impact fees collected, per the Pate Plan's financing scheme, totaled nowhere near the $46 million needed. In its General Report on Tropical Storm Frances the district noted that, as of September 1998, only $3.8 million in impact fees had been collected.

Though it is not part of the homeowners' lawsuit, the most troubling issue surrounding the case may be the district's failure to notify residents when it was discovered the White Oak floodplain was bigger than anyone thought. Garcia says there are "a few problems" with distributing floodplain information before it has been approved by FEMA. For one thing, buyers and sellers would, understandably, disagree on which floodplain information should be recognized.

The map revision process can take years in some cases, Garcia acknowledges, but "it is designed to ensure due process and to make sure that everyone has consistent information at the same time."

Blackburn simply points to the West Houston Association's challenge to assumptions reached by Klotz Associates in 1993 as proof that "due process" is considered important only for developers.

"That group threw a monkey wrench into the map coming out, whereas a lot of the neighborhood associations along White Oak Bayou never even got to play in that ball game," Blackburn says. "The best protection anyone could have is the fact that they get told when they should get flood insurance.

"What I'm really angry about is the fact that the citizens are not being protected with regard to flooding. What I'm talking about is we have never treated the public as a consumer of floodplain information, a consumer of flood protection information."


On the morning of June 11, 2001, Eric Andell -- who was brought in to hear the case by 130th District Court Judge Lamar McCorkle -- dismissed the homeowners' lawsuit. Exercising his prerogative, Andell chose not to issue an opinion on the merits of Blackburn's arguments, though presumably the judge determined that the homeowners simply didn't have much of a case, or at least not one worth bringing before a jury.

Under normal circumstances, Andell's ruling might have generated some attention. But June 11 was not a normal day in Houston. It was the Monday following Tropical Storm Allison, which flooded some 30,000 homes -- 5,000 of them in the White Oak watershed -- and inflicted hundreds of millions of dollars in damages to downtown Houston and the Texas Medical Center.

Andell signed his order from his apartment at the Four Seasons Hotel because the courthouse had flooded and wouldn't open for business again for another month. The judge's decision didn't even merit a brief in the Houston Chronicle because reporters were focused on the misery and destruction at hand; nor was there much interest a week later, when Andell moved to Washington to become special counsel to Rod Paige, U.S. secretary of education.

Ed Kerr had just about finished recovering from Tropical Storm Frances when Allison paid him a visit. The weekend before, he had put the final touches on the floor in the bathroom and had a few hours of baseboard work to complete. Instead, he and Norma Jean moved to a hotel, where they lived until about a week ago. Though they had flood insurance this time, Ed estimates the damage was close to $80,000.

Sheila and Wendell Wyborny's house in Creekside Estates took on three feet of water, which destroyed a number of antique furnishings and "little things" the couple had collected during their 30 years of marriage. Though their house is almost back to normal, Sheila says her view of life along White Oak Bayou has changed forever.

"We don't feel safe," she says. "When the thunder starts, I'm awake and I stay awake. A few weeks ago, when that double front came through, I moved some of the furniture upstairs and went to a hotel just so I could sleep. It's not right."

The magnitude of the destruction caused by Tropical Storm Allison, more than half of which occurred outside the mapped floodplains, has prompted a massive effort by FEMA to gather updated information on all 22 watersheds in Harris County. The study will incorporate the latest airborne radar technology, called LIDAR, to create new topographic maps of the county. Steve Fitzgerald says he's "excited" about the project, which will be a joint effort by FEMA and the flood control district.

"We need better models," Fitzgerald acknowledges. "It will be a monumental effort, on the order of $16 million. But it's long overdue."

But while the LIDAR analysis is expected to significantly alter the current understanding of the county's floodplains -- Blackburn predicts "people's jaws will drop" when the new maps are issued -- business goes on as usual along White Oak Bayou.

For years residents along the reach of the bayou inside Loop 610 have pleaded with the flood control district to build more storm-water detention ponds. The district, however, concluded that it would cost too much to build the needed capacity. Meanwhile, the City of Houston has approved construction plans for a half-dozen major development projects on East T.C. Jester, alongside the bayou. The developments have been most vehemently opposed by residents of Timbergrove Manor, where more than 500 homes were damaged by Allison.

Jim Blackburn sees opportunity in the increasing anger and frustration of Harris County's flood victims. Earlier this year, the attorney formed a political action committee that he hopes will galvanize residents to demand changes in local flood control and environmental policies. In the wake of Allison, the new movement would seem primed for widespread support. But, he says, that can change.

"I don't think it can be sustained over time if the government keeps sending signals that there's not a problem," Blackburn points out. "And all of the signals I'm seeing is that we did a great job of responding to Allison. 'Allison was a rare event and we'll never see it again. Rest easy, we're in control.' And nothing could be further from the truth."

Next week: Has the City of Houston missed its chance to protect homeowners in the lower White Oak floodplain?

We use cookies to collect and analyze information on site performance and usage, and to enhance and customize content and advertisements. By clicking 'X' or continuing to use the site, you agree to allow cookies to be placed. To find out more, visit our cookies policy and our privacy policy.

 

Join the Press community and help support independent local journalism in Houston.

 

Join the Press community and help support independent local journalism in Houston.