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Out of Control

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No sooner had the association completed its survey when a case study in the flood control benefits of storm-water detention presented itself. Tropical Storm Frances thrashed White Oak Bayou's 25-mile length, flooding 1,200 homes from Jersey Village to Arbor Oaks. But damages were considerably less east of Antoine Road, notably downstream of two detention basins built by the flood control district. Further along, toward downtown, the bayou had gone over the bank again, threatening a half-dozen subdivisions, including Fred Lazare's, Timbergrove Manor. Fortunately, Lazare and his neighbors were spared the worst of Frances when the floodwaters found refuge along the rail corridor, in the gravel yard and at the old oil patch.

County flood control officials attributed the high water levels in the area to the heavy rainfalls, which, of course, seemed to go without saying. A month later, the weather lost some weight as the definitive cause when FEMA released a draft version of the new flood-insurance rate map for White Oak Bayou.

The last time anyone checked, in the mid-1980s, the capacity of the White Oak channel from downtown to Cole Creek was more than adequate to handle a 100-year storm, or about 12 and a half inches of rain in 24 hours. In other words, there was no theoretical floodplain. But the draft map released in October 1998 told a different story: The floodplain extended as much as 3,000 feet on the east side of the bayou below 28th Street and on the west side south of 11th Street, encompassing neighborhoods that had never flooded.

Just as Tropical Storm Frances demonstrated the utility of storm-water detention, the draft floodplain map underscored how vulnerable older, inner-city neighborhoods like Timbergrove Manor and Clark Pines were without it. But before the flood control district could fully evaluate the White Oak association's detention plan, city planners proposed extending East T.C. Jester to Ella Boulevard, which would encourage the development of nearly 100 acres in the floodplain.

Opposition from nearby residents was fierce and focused on Greg Baxter, the road's major beneficiary, who had purchased the old oil field site south of 18th Street. Baxter appeared to have stumbled into some bad luck: Just two months before council took up the road extension, local drainage officials were notified of pending revisions to the floodplain for White Oak Bayou, and Baxter's land, which was under water during Tropical Storm Frances, was in the heart of it.

The flood control district immediately began using the new map delineations in its regulation of development in unincorporated areas of the county. As a condition for funding from the Army Corps of Engineers for flood control projects in the White Oak watershed, the district's engineers have the authority to review plans that affect the bayou inside the city limits.

After meeting with the developer, the district informed Baxter, in writing, that he would need to design his project "relative" to the new elevations, which meant the developer needed to provide storm-water detention. When some councilmembers, spurred on by the project's opponents in the surrounding neighborhoods, questioned the wisdom of allowing new construction on land that would soon be floodplain, Bart Standley, the developer's engineer, stepped up with a reassuring letter to Orlando Sanchez. Standley attached a copy of the district's requirements and explained to the councilman that Baxter was prepared to abide by them.

And Baxter was true to his word on part of the deal. Both the Albertson's and the apartment site have been raised above the new floodplain. But according to city records, the supermarket -- six acres, including a giant parking lot -- has no apparent on- or off-site storm-water detention; and the detention at Baxter's 9.3-acre apartment site is far less than what the flood control district would have required.

Baxter broke no laws, of course. While the flood control district must sign off on certain floodplain developments within the city limits, denying a building permit is not an option. FEMA, which oversees the flood insurance program, has delegated final approval to the city's floodplain manager. Culp says, despite what Baxter's engineer told council, the city had decided not to recognize the new map until FEMA actually published it, which didn't happen until April 2000.

"If this gentleman…said he was going to do his best to meet all the requirements of the new map, that's an agreement he made with somebody else," Culp told the Press. "Obviously City Council was involved in encouraging him to do that; the homeowners were requesting he do that. But that's not something we could force upon him."

Loomis, who is certified by both the state and national associations of floodplain managers, at one point argued that the county broke a federal law by enforcing "preliminary" floodplain data before FEMA began publishing the new map. The flood control district "is wrong," Loomis says. "You can't start using the new maps until a letter of final determination has been issued by FEMA. Because, until then, it can change. Once we got the LFD [letter of final determination]" -- in late January 2000 -- "we could accept that map and start using it."

Fred Garcia, director of communications for the flood control district, says he is "at a loss" to defend Loomis's accusation that the district did something illegal. "We started using the information in October 1998 because FEMA acknowledged their intentions to revise the [map] based on new information," Garcia says. "We felt it was the best available information at the time."

But Culp counters that FEMA rejected the county's hydraulic computer models in the mid-1990s; the district eventually lowered the flood elevations one foot, which FEMA accepted. "Were we supposed to use that map, too?" Culp argues. "If we had been enforcing the proposed models, the city would have been enforcing less than the best data."

Yet the city's use of the old data denied residents the storm-water detention they probably deserved. Because the city didn't start using the new flood elevations until January 2000, Baxter had almost a year to fill his site before it became subject to the city's storm-water detention policy.

"These people were filling the floodplain as fast as they could get the dirt in there, prior to the map change," Loomis says, adding that though he knew the floodplain had been altered considerably, there was nothing he could do. "It was out of the floodplain at the time, so they didn't need a floodplain fill permit. We had no control over that."

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