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.