U.S.: Katrina Lawsuit Raises Broader Questions About Levee Safety

  • by Matthew Cardinale (atlanta, georgia)
  • Monday, November 30, 2009
  • Inter Press Service

The 156-page ruling, obtained by IPS, ordered payments ranging from 100,000 to 300,000 dollars to several residents of affected areas who had brought the case, including Anthony and Lucille Franz, Tanya Smith, Kent Lattimore, and Lattimore and Associates.

'Things of this magnitude tend to provoke dramatic solutions that are more than just case-by-case appeals,' Professor Oliver Houck of Tulane University Law School told ABC news, mentioning the Congressionally created fund to compensate victims of the Sep. 11, 2001, attacks.

'This was our 9/11. There's even more of a rationale here, because the government was largely responsible,' he said.

Judge Stanwood Duval, Jr. determined that 'the Corps' negligent failure to maintain and operate the MRGO properly was a substantial cause for the fatal breaching of the... Levee and the subsequent catastrophic flooding of the St. Bernard'.

'This Court is utterly convinced that the Corps’ failure to provide timely foreshore protection doomed the channel to grow to two to three times its design width and destroyed the banks which would have helped to protect the... Levee from front-side wave attack as well as loss of height,' Duval wrote. 'In addition, the added width of the channel provided an added fetch which created a more forceful frontal wave attack on the levee.'

The U.S. government had attempted to argue that the USACE was not liable for any of the flooding damage which occurred during Katrina because the Flood Control Act of 1928 shielded them from liability. However, Judge Duval ruled that the USACE was responsible for the MRGO because it was a shipping channel and not part of the mainland U.S.

'Judge Duval's decision confirms what I and other leaders from Louisiana have been saying since the horrifying days following Hurricane Katrina: this was one of the most catastrophic natural and man-made disasters in American history,' the senator from Louisiana, Mary Landrieu, said in a statement.

'The finding that the Corps of Engineers was 'grossly negligent' in its operation and maintenance of a federal navigable waterway has serious implications for all of coastal Louisiana, and the entire country. This nation has severely neglected its responsibilities when it comes to investing in critical infrastructure and it is costing us lives and billions of unnecessary dollars,' Landrieu said.

Sandy Rosenthal of Levees.org, a nonprofit advocacy group, believes if any money is allocated for New Orleans it will be for rebuilding, rather than cheques to individuals.

'The only levees they've [previously] accepted responsibility for were the 17th Street and London Avenue, which were disastrously bad design. They have not taken responsibility for anything else,' Rosenthal told IPS.

'Meanwhile, Corps spokespersons have been going around the country telling people the Corps wanted to build gates [at certain levees], and the locals wouldn't allow it; except, it's not true,' Rosenthal said, adding the Corps had been 'blaming the local historic New Orleans Levee Board and the Sewer and Water Board'.

This was the second ruling by Judge Duval regarding the levees. 'There were two rulings. First, in January 2008, the same judge declared the Corps was responsible but not liable for the 17th Street and London. Now with the latest ruling, for people affected by MRGO - St. Bernard Parish and the Lower 9th Ward - now they're both responsible and liable [for damages],' Rosenthal said.

'The judge said regarding the 17th Street and the London, they squandered millions; by their own calculations, that they knew the flood walls would fail, but they built them anyway,' she said.

Rosenthal provided IPS with a new map based on data she obtained from the Federal Emergency Management Agency (FEMA) that shows which U.S. cities and counties are protected by levees. IPS is the first news agency to publish the map.

'The map is important because it's accessible, people can easily look and see which counties have levees,' Rosenthal said. 'With 55 percent of people living in counties protected by levees, they all could be vulnerable. This makes it a national problem,' Rosenthal said.

'That's why our Congress will hopefully understand that a federal agency is responsible for death and destruction. Hopefully, they'll change the way water projects are done in this country,' she added.

Rosenthal made three recommendations for how to move forward after the ruling.

First, she noted, 'Members of Congress choose which water projects get done. They should be chosen on an expert panel, not as pork [projects that influential members push to benefit their districts specifically].'

Second, 'I also recommend that the Flood Control Act of 1928 be repealed or revised. As it stands, the U.S. Army Corps of Engineers has no incentive to build our levees properly and no consequences should it fail,' Rosenthal said.

Finally, 'The Army Corps needs to be reformed and perhaps we need a paradigm like they use in Holland which combines federal, state, and local into one agency,' Rosenthal said.

© Inter Press Service (2009) — All Rights ReservedOriginal source: Inter Press Service

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