[StBernard] Corps Says It's not to Blame for Katrina Flooding

[Westley Annis]

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http://www.insurancejournal.com/news/southcentral/2011/12/14/227385.htm
Corps Says It's not to Blame for Katrina Flooding

Justice Department lawyers argued at trial on Dec. 12 that there is little
evidence a shipping channel dug decades ago by the Army Corps of Engineers
contributed significantly to the castastrophic flooding after Hurricane
Katrina that swamped St. Bernard Parish and New Orleans' Lower 9th Ward in
2005.

A new, non-jury trial in U.S. Court of Federal Claims opened Monday against
the corps, accused by 128 home and business owners of effectively destroying
their property and making them vulnerable to the powerful hurricane when it
dug the Mississippi River-Gulf Outlet - or MRGO - in the early 1960s.

The case was filed in 2005 in that court, which handles lawsuits against the
federal government. The court is located in Washington, but the trial is
taking place in New Orleans under the oversight of U.S. Court of Federal
Claims Judge Susan G. Braden.

The trial is part of a multipronged legal attack on the Army Corps, which is
facing billions of dollars in damage claims arising from Katrina's
floodwaters. The suit argues that residents in St. Bernard and the Lower 9th
Ward deserve to be compensated for the government's taking of their
property.

In a separate but related case, plaintiffs won a major victory in November
2009 when a federal judge ruled that the corps' decision to dig the shipping
channel in the 1960s was to blame for flooding St. Bernard Parish and the
Lower 9th Ward. However, the same judge, U.S. District Judge Stanwood Duval,
ruled against plaintiffs in their attempt to blame the corps for causing the
flooding of the bulk of the city.

Those rulings are on appeal and could wind up being decided by the U.S.
Supreme Court.

In the new trial, the shipping channel has been blamed for widespread
ecological damage to the wetlands southeast of New Orleans and the
plaintiffs argue that the channel left St. Bernard and the Lower 9th Ward
vulnerable to flooding that covered rooftops in some of those areas.

The plaintiffs say the channel funneled salt water into the marshes of St.
Bernard, killing the natural buffer those wetlands offered against storms.
They also argued that the MRGO, in fact, served as a conduit for storm surge
from the Gulf of Mexico. The plaintiffs say the value of the land their
homes and businesses sit on has been ruined by the government.

But in opening statements, Michael Barron, a Justice Department lawyer, said
government experts would show other factors, such as the settling of the
ground or subsidence, was causing land loss before the MRGO was dug. He also
denied that the MRGO acted as a funnel for storm surge. The MRGO was
originally built as a shortcut for oceangoing ships, avoiding the much
longer winding route along the Mississippi River.

He said the plaintiffs' arguments that the MRGO caused them to flood
repeatedly were flawed. He noted that the plaintiffs' properties were not
flooded by other major storms that struck the northern Gulf Coast after the
MRGO was built.

He also argued the rebuilding taking place in St. Bernard Parish and the
Lower 9th Ward since Katrina was evidence that the corps had not destroyed
the value of the plaintiffs' properties.

Charles Cooper, a lead plaintiffs' lawyer, said the government's own
documents predicted the MRGO's devastation. He cited reports by government
biologists and the corps warning that the MRGO, once built, would siphon in
salt water and cause damage.

He said government documents warned about the channel widening and about the
possibility that levees being built along the channel would be insufficient
to protect St. Bernard and the Lower 9th Ward against major storms.

He also said the government's own documents told a story that showed the
corps knowingly used incorrect data in designing levees for St. Bernard and
the Lower 9th Ward. Cooper said that meant flooding was bound to happen
because of the corps' failure to maintain the channel and build adequate
levees.

"This case is made out of the mouth of the government itself," Cooper said.
"The corps allowed this erosion to occur as a matter of policy."

The trial is expected to last five days and include testimony from experts
about what effect the MRGO had on flooding.

The judge is not expected to rule from the bench at the end of the trial,
lawyers said.

Since the hurricane, about half of the pre-hurricane population of 60,000
people has returned to St. Bernard. Rebuilding has been very slow in the
Lower 9th Ward, the area hit hardest by Katrina.

 

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