Few paid attention two years ago when U.S. District Judge Stanwood Duval found the US Army Corps of Engineers and the Federal Government squarely responsible for the flooding destruction in New Orleans during Katrina.
Even though the judge thundered over how the Corps squandered millions on building a levee system "... known to be inadequate by the Corps' own calculations..," few people paid much attention.
Because the judge had to dismiss the case.
Though judged responsible for the failure of its flood control structures, the Corps, nonetheless, was protected from any financial liability due to the Flood Control Act of 1928.
The American people, conditioned to believe that if there is no financial liability then the case has no merit, went on with their lives.
Even though over 600 died directly due to the floodwall collapses, and billions upon billions of dollars damage were documented, most Americans ignored the ruling and its significance.
But on November 18, 2009, Judge Duval ruled again, this time finding the Corps directly and financially responsible for the destruction of most of New Orleans and wrote, "...the Corps' lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions...."
This time the issue was the failure of a navigation structure, not a flood control structure. And now, the American people are sitting up and taking note.
The media is reporting and focusing on how the ruling would "open the floodgates" to more than 100,000 claims pending against the Army for its defective engineering and poor planning.
Americans are now paying attention, and so it's important that they receive accurate information before they become distracted again.
The last time the nation's people were listening they were handed a great deal of disinformation.
When the Corps-built levees broke on August 29, 2005, retired spokespersons for the Corps quickly fanned out to talk to national reporters about why New Orleans flooded so horrifically.
Using a technique documented by Georgianne Nienaber, these spokespersons gave out crafted misinformation with help from the Corps' public relations companies designed to shift responsibility for the flooding away from the federal agency. The myths and misinformation was then pedaled by an often understaffed news media satisfying an American public thirsting for details.
By the time the media attention abated, household opinion was that the people of south Louisiana were reckless for living in their own homes and stupid for rebuilding, even though many lived in family homes that have been in place for generations, even centuries.
The single most common diffusion technique the Corps used to shift responsibility for its broken levees away from itself was in claiming that New Orleans locals blocked the Corps' grand plans for perimeter barrier structures that would have kept water out of the city. This implied that the locals were to blame for the catastrophic flooding during Katrina four years ago.
There are two main themes of this disingenuous spin, 1) the open tidal outfall canals at Lake Pontchartrain, and 2) the proposed barrier structures east of New Orleans.
The 17th Street, London and Orleans Avenue Outfall Canals
Just weeks before Judge Duval's initial January 2008 dismissal ruling, Corps spokesperson, Maj Gen Don Riley told a roomful of conference attendees in New Orleans that pre-Katrina, the Corps bowed to local pressure and "abandoned the prospect of gates and instead built floodwalls along the three big outfall canals...."
Here is what really happened according to the Decision-Making Chronology for the Lake Pontchartrain & Vicinity Hurricane Protection Project by Douglas Woolley and Leonard Shabman, both water resources planning and policy experts.
In the 1980s, the Corps proposed a "butterfly valve gate" for the three outfall canals that, once closed, would not allow drainage because the gates had no auxiliary pumps like those in place today. That meant closing the gates in a hurricane could cause major over-topping of the canal walls.
The Sewage and Water Board realized that if the Corps installed the butterfly gate structures, then the local interests must raise the height of the canal walls to prevent rainwater flooding. The locals would also have to pay 100% of the cost.
So the Orleans Levee Board pressured the Louisiana Congressional delegation to pressure Congress to place the outfall canals under the federal jurisdiction of the Hurricane Flood Protections in the Energy and Appropriations Act of 1992. It worked, meaning the local sponsor must pay 30% instead of 100%.
Eventually, the Corps determined that building higher canal flood walls was more economical, and decided to build them. And to not build the gates. The Corps never said it was approving any projects under protest, or raised concerns they would not work.
In August 2005, those raised canal walls failed catastrophically 3 feet below design specifications and over 600 people died.
Conclusion:
The issue with changing of the law was a matter of cost share. Furthermore, this 70-30 cost share is the same in all fifty states for USACE built water protects, and is not unique to New Orleans. For the Corps to blame the locals for the Lakeview flooding because they successfully changed the cost share arrangement is disingenuous.
The Rigolets, Chef Menteur and Seabrook Barrier Structures
Another "story" the Corps frequently used to shift responsibility for its levee failures away from itself is the claim that environmentalists filed lawsuit and blocked a plan for peripheral barrier structures therefore causing the horrific flooding in New Orleans after the 2005 Hurricane.
Again, this is not supported by evidence, and here is what really happened.
Between 1970-75, the Corps issued a plan calling for barrier structures for the coastal area east of the city - the Rigolets, Chef Menteur Pass and the Seabrook lock. Luke Fontana (Save our Wetlands) filed suit against the Barrier Plan. In 1977, the Court temporarily prohibited the Barrier Plan implementation "citing inadequacies in the ...Environmental Impact Study analysis of the surge barrier effects on lake salinity regimes and habitat...." Four months later, levees and floodwalls were allowed elsewhere in the New Orleans vicinity, but the three peripheral barriers were prohibited until the environmental concerns were addressed.
Later, the Corps approved a project restudy plan and spent 3 years addressing deficiencies in the Environmental Impact Study. Finally, in June 1980, the Corps concluded the higher levees providing hurricane protection was less costly, less damaging to the environment, and more acceptable than the Barrier Plan.
And there is no evidence of the Corps being coerced to do anything outside its will.
The literature and internet are filled with verbal statements from Corps of Engineers spokespersons during the years 2005 and 2006 saying that they were "forced" to abandon their grand plans for peripheral barrier structures for both the outfall canals and the barrier structures. But none of this literature contains references to the necessary documentation or other evidence. And all of it is refuted in 2007 and later.
Our Future
The majority of the American people live in counties protected by levees, and the most important ones are built by the US Army Corps of Engineers.
Maybe the new ruling and judgement will help open people's eyes to see that they too may be in the same boat as New Orleans.
The ruling could help spread a message that the true tragedy of Katrina was the federal government's creation of the disaster not its flawed response.
And hopefully, it will lead to a re-examinination of an archaic law, the Flood Control Act of 1928, that provides no incentive to the Army Corps of Engineers to build flood protection properly nor mete out professional consequences should it fail.