On August 29, 2012, Federal Judge Lee Rosenthal stated she would soon be issuing an order setting a timetable for the final step to the revision of the Federal Emergency Management Agency (FEMA) floodplain map for Cypress Creek. During the course of the hearing on Wednesday, Judge Rosenthal indicated that a new statutory process using a Scientific Resolution Panel (SRP) would hopefully end a suit that has been pending for five years in federal court.
The suit – Sierra Club v. Federal Emergency Management Agency (FEMA) – was filed in 2007. The filing challenged the accuracy of a 2007 revision to the flood plain map for Cypress Creek. The suit was filed because the 100 year flood plain as mapped by FEMA (from studies by Harris County Flood Control District) was about 3.5 feet lower than two actual floods that were measured at the Katy-Hockley bridge over Cypress Creek during the 1990s. These two floods were less than 100 year events. That is, Harris County had asserted that certain floods would not happen more than once in a hundred years, but in fact much higher flooding had been experienced twice in the recent past.
Shortly after the litigation was filed, FEMA came into federal court and filed documents stating that they agreed with the Sierra Club and would revise the flood map for Cypress Creek. In 2010, Harris County Flood Control District completed the process of redoing the maps, and Harris County’s new maps largely agreed with Sierra Club as well.
Not everyone was happy. In particular, the new maps showed much of the western portion of the proposed Bridgelands Development, now owned by the Howard Hughes Corporation, to be in the 100 year flood plain.
According to representations made in the federal court on Wednesday by the attorney representing the Howard Hughes Corporation, this revised map essentially has halted the Bridgelands Development. Bridgelands covers approximately 10,000 acres south of U.S. Highway 290 and Cypress Creek and east of Katy-Hockley Road.
As of March, 2012, FEMA had completed its revision process and had denied technical complaints about the map that were filed by Bridgelands. At that point Harris County and FEMA were in agreement – and Sierra Club also agreed: the revised map was solidly based on actual flood records and should be approved. Then the politics apparently got very interesting and disturbing.
In filings in federal court in April 2012, FEMA identified that Harris County had asked for the convening of a Scientific Resolution Panel (SRP) to appeal the map that they had created and approved. It turns out that Harris County was making the request on behalf of the Howard Hughes Corporation which had no rights to utilize the SRP process at that time. Essentially, Harris County agreed to allow Bridgelands to represent the “community” in an appeal. While many of us have often thought that Harris County was merely a puppet for developers, seldom has there been such direct evidence.
The decision by Harris County to allow the Howard Hughes Corporation to represent the “community” was transmitted in a letter written by Harris County’s Public Infrastructure Department of Architecture and Engineering Division. In this letter, Harris County candidly acknowledged the strange situation when it requested the SRP process:
“Due to these relationships [of various Harris County Departments active in revising the map], to request an SRP under the Cypress Creek PMR process and relationship structure is equivalent to disagreeing with ourselves. However, though we as a community agree with our technical advisor’s findings [approving the new FIRM], there appears to be no formal outlet other than the SRP to ensure this technical disagreement [with the Howard Hughes Corporation] is independently reviewed prior to publishing the new effective maps.” p. 1
It should be noted that, at the time, FEMA already had reviewed, and denied, a challenge that Howard Hughes had made to these maps.
However, in this unprecedented manner, the Howard Hughes Corporation was allowed to utilize a process that was designed to resolve disputes between the “community” and FEMA. To restate, FEMA and Harris County do not disagree. But Harris County seeks to give Howard Hughes Corporation a power to appeal as if Howard Hughes is the “community” —an obvious conflict of interest.
To further worsen this situation, as the SRP process was then understood, Harris County had the ability to choose 3 of 5 scientists – with FEMA to choose the other 2 of the 5. But in this case, Harris County officially decided to give all of its rights to select panelists (similar to arbitrators) to the Howard Hughes Corporation.
In this case, for Harris County to abdicate its responsibility could have serious consequences. The evidence is compelling that a very real flood plain exists across the proposed Bridgelands development in Cypress Creek. The map revision was based on measured flood levels. There are pictures of thousands of acres of flooded prairie south of Cypress Creek. This is the area that was included in the revised flood plain.
If this flood plain designation is removed, the area can be filled. Flood waters could be diverted from this flood prone area and pushed downstream in Cypress Creek, potentially adding to an existing flood problem in the neighborhoods lying east of U.S. 290. And several thousand acres of valuable wetlands could be lost as well.
In court, Sierra Club raised the issue of the usurpation of the role of “community” by the Howard Hughes Corporation. However, Judge Rosenthal focused upon obtaining a commitment for the timetable for the SRP process so that this legal marathon would end.
The bottom line is that the situation on Cypress Creek is not yet resolved. And our “community” is now officially placed into the hands of the Howard Hughes Corporation, at least for this review. And while the Sierra Club prevailed in the initial litigation, it is not yet clear what the final map will yield. And so it goes in the world of politics in Harris County.
Jim Blackburn is an environmental lawyer practicing with the BlackburnCarter Law firm in Houston. David Kahne is a constitutional lawyer with his own firm in Houston. Both participated in the above-discussed litigation as attorneys for the Sierra Club.