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Birds Point floodway mired in mucky water, legal challenges

This article first appeared in the St. Louis Beacon, June 3, 2011 - WASHINGTON — When the Army Corps of Engineers detonated explosives in the dead of night on May 3 to blast gaps in the Birds Point levee, the breach sent torrents of muddy Mississippi River water into the floodway's fertile but forcibly abandoned farms.

The Corps regards the activation of that floodway — for the first time since the historic 1937 flood — as a success, lowering flood levels in nearby Cairo, Ill. But that orange flash of levee explosions also set off a battle over money and river management that is extending all the way to the nation's capital and is not likely to be settled for many months after the flooding has subsided.

As farmers continue to wait for flood waters to recede from the 35-mile-long floodway between Birds Point and New Madrid in southeast Missouri, nearly 70 people or firms that own about 60,000 of the 133,000 acres in the floodway have signed up as part of a class-action lawsuit seeking damages from the Corps.

"We still don't know if we'll be able to plant a crop this year," said farmer Richard Crawford, 63, of Charleston. He and his wife, Pat, who own about 900 acres in the floodway and have joined the class-action suit, told the Beacon on Tuesday that "there's still a lot of water" covering that fertile farmland.

The commander of the Corps' Memphis District, Col. Vernie L. Reichling, announced Wednesday that he and representatives of the Corps' real estate and legal office had invited Birds Point-New Madrid Floodway landowners to a meeting Thursday evening in East Prairie to explain how they can file damage claims.

"This meeting will be about getting the word out to landowners in the floodway, what the process is and what information they will need to complete the filing process," Reichling said.

But Reichling is an unpopular figure in Mississippi County in the wake of the Birds Point breach and the Tweet he sent on May 23, after revisiting the busted levee, that "Memphis engineers developing alternatives to reset levee by 1 Mar [20]12" — a date that is about six months later than many had hoped. Corps officials also have said they are considering various rebuilding options, including installing levee gates at Birds Point that would make it easier to "activate" the floodway in future floods.

The slow progress in restoring the levee and the disturbing possibility of Birds Point gates — which knowledgeable officials say is not a likely option — have upset many residents of Mississippi County as well as the politicians who represent them.

"I strenuously oppose the idea of putting gates up," said U.S Rep. Jo Ann Emerson, R-Cape Girardeau, who said that such gates would make it easier to use the floodway, which has only been activated twice in 64 years. She also told the Beacon that any delay in repairing the Birds Point levee beyond late summer is "unacceptable."

But Corps officials have told Emerson and other members of Congress that the pace of restoring such levees and other damaged flood structures will depend on whether extra funding can be added to the Corps' budget this year.

"Right now, the biggest hurdle for us is funding," said James T. Pogue, chief spokesman for the Corps' Memphis District. "Until funding is identified and made available for us, we're kind of stuck with just making preliminary estimates." Asked if the speed of repairing the Birds Point levee will depend on whether Congress is able to specify funding, Pogue said: "I think that's right — yes."

For that reason, the speed of recovery from this spring's Lower Mississippi flooding is becoming tangled in Congress' spending debate, which is likely to include wrangling about an emergency supplemental appropriations bill to help pay for the expenses of the flooding and the destructive tornadoes in Joplin, St. Louis and the Mid-South.

Emerson, who chairs a House Appropriations subcommittee, tried to grease the process last week by organizing a letter — signed by every U.S. House member who represents a congressional district along the Lower Mississippi River, including Rep. Jerry Costello, D-Belleville — asking the head of the White House budget office to initiate a request for emergency funding to address the natural disasters.

"This effort will be the make-or-break legislation that helps people over the long term," Emerson said. "Without it, we face immense challenges in putting our lives back together and unacceptable threats to public safety."

In the meantime, lawmakers are pressuring Jo-Ellen Darcy, the assistant Army secretary for civil works, to speed up the process of assessing the flood's damage and repairing the Birds Point levee to the point at which farmers don't have to worry about more flooding.

Both of Missouri's U.S. senators have urged the Corps to speed up the levee rebuilding. Sen. Claire McCaskill, D-Mo., said Wednesday that the Corps "blew up the Birds Point Levee and they should be responsible for repairing that damage as soon as possible. We are committed to ensuring that this project receives the priority it deserves." Sen. Roy Blunt, R-Mo., said that "taking a year to restore this levee is absolutely unacceptable." He urged the Corps to "expedite this restoration as quickly as possible so the farmers, families, and business owners in the Bootheel can rebuild their lives as soon as possible."

"It's already too late to plant corn," said Crawford, who lost crops to flooding in 1993. He said soybeans would have to be planted within a few weeks to be harvested before the fall frosts. "It all depends on how long it takes for the water to drain out." But Crawford now worries that the Mississippi River, whose levels had dropped, is now starting to rise again with the influx of floodwaters from the Missouri River. "It looks like it's going to get awful close" to surging more water into the floodway, he said.

Despite the nagging persistence of floodwaters, Pogue told the Beacon that the Corps was generally satisfied with the operation of the floodway — saying that it "operated as it was supposed to. It took a significant amount of pressure off of the levee system. ... It allowed us to maintain control, which was the big concern — that we would see overtopping and levee failures in an uncontrolled manner."

Asked if Corps officials regarded the operation of the floodway as a success, Pogue said: "Yes, if that's how you define a success; it operated as it was supposed to."

Floodway 'activations' in 1937 and 2011

While the damage to crops and buildings in the floodway this spring will likely total hundreds of millions of dollars, the extent of this year's human losses and suffering pale in comparison to the only other time the Birds Point levee was breached — in 1937.

"The deadliest single event during the 1937 flood happened at Birds Point," said David Welky, an Arkansas historian who spent years researching the 1937 flood for an upcoming book, "The Thousand Year Flood: The Ohio-Mississippi Disaster of 1937," scheduled for publication this fall.

Welky told the Beacon that 26 levee workers drowned when a barge that was picking up from a shift on the Birds Point setback levee sunk on a cold winter day. "It wasn't for quite some time, until water had flowed out of Birds Point, that they could recover all the bodies," he said. In all, an estimated 500 people died as a result of the 1937 flood.

While appeals about the levee breach did not go to the U.S. Supreme Court — as they did this year — Welky said "it was a difficult decision" to dynamite the levee back then. "You saw a lot of the same things happening in '37 that you saw" this spring, he said. "You had a lot of people in Missouri hurling charges at Illinois; and there were people in Illinois saying, 'Hey, it's not our fault; this is the plan.'"

But there were some major differences between the '37 and '11 activations of the floodway. Back then, Cairo's population was more than 15,000; now it is less than 2,000. The floodway was a relatively new creation then, having been established early 1930s. And nearly all of the people who lived in the floodway in the 1930s were sharecroppers, unlike the many farm owners who are there now.

"Almost all of the people living in the Birds Point floodway were tenant farmers; they didn't own the land. And most of the landlords in the area were absentee. The land was owned by insurance companies or banks. ... [Absentee owners] had been paid flowage rights by the federal government — paid for the right to flood their property whenever the government decided it needed to."

For that reason, Welky said, "The people who were evacuated from Bird's Point didn't get any compensation ... except for a place in a refugee shelter for a few months." The Southern Tenant Farmers Union tried to take advantage of that unrest by recruiting sharecroppers, which he said "created a lot of tension in the Missouri Bootheel."

"So you have the landlords hoping that this natural disaster will basically break up or disburse the union," he said. "And then you've got the unionists hoping that, now that many of them were concentrated in refugee camps, that maybe they could make a going concern out of this."

In the end, the landlords won. "Landlords encouraged tenants to return to BP before it was safe because they didn't want them exposed to the union," he said. "There was violence in that region for the next couple of years, but the farmers' union never really recovered from that flood."

There's another major difference between 1937 and this year, Welky said: "So far as I know, it never got taken to court."

Floodway farmers take Corps to court

While the government escaped legal consequences after it opened the Birds Point floodway in 1937 — even though at least 26 people died and hundreds lived in freezing refugee camps — the 2011 levee blast already has had exposure in the courts.

Before the Corps blew the levee, Missouri Attorney General Chris Koster sought a federal court order to block the flood-control move, arguing that it was not necessary and would injure floodway farmers and the local economy. Rejected by a federal judge in Cape Girardeau and an appeals court in St. Louis, Koster took the case all the way to the U.S. Supreme Court, which declined to intervene.

But that ruling, which came the same day that the Corps breached the levee, did not mark the end of the legal battle. The day after the Birds Point detonation, floodway farmers and landowners filed a class-action complaint against the Corps in the U.S. Court of Federal Claims in Washington.

In the 12-page complaint, attorneys argued that the Corps' action had violated the property rights of farmers and landowners under the "taking" clause of the Fifth Amendment to the U.S. Constitution. While the Corps had obtained "flowage easements" from floodway property owners, the complaint contends that "the easements in effect prior to 1983 were not broad enough to cover the 1983 plan" — under which the Corps called for blasting "fuse plugs" at three main points in the main levee from Birds Point to New Madrid.

J. Michael Ponder, an attorney with the Cape Girardeau firm of Cook, Barkett, Ponder & Wolz, said "these farmers are seeking just compensation for the land and livelihood they have lost" — perhaps for years or longer — as a result of the flood damage. He told the Beacon this week that about 70 individuals or firms that owned nearly half of the floodway acreage had joined as potential co-plaintiffs in the class-action claim.

The claim asserts that the intentional breach of water into the floodway caused more than $300 million in damages, including damage to 90 homes, about 130,000 acres of fertile farmland valued between $4,000 and $6,000 an acre, as well as roads and much of the other infrastructure in the floodway.

"The Corps of Engineers says it has flowage easements, but the easements are defective," Ponder said. The Corps has not yet responded in court, but its lawyers are expected to assert statutory immunity to damage claims.

Meanwhile, the Corps' Memphis district office published claims forms on its website that it said were for Birds Point floodway landowners. And Reichling called a meeting of landowners for Thursday to discuss what the Corps can offer and what their claims options are.

Farmers may feel otherwise, but some lawyers think the Corps is mainly trying to find out how extensive the damage claims might be. "We're advising our clients to be very cautious about the way they make those claims," said Ponder.

Rob Koenig is an award-winning journalist and author. He worked at the STL Beacon until 2013.

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