Damage Control

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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.

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Brian Wallstin