Orange County landowner battles with FEMA
Orange County resident Henry R. “Sonny” Stevenson says his business is on hold and his hands are tied when it comes to getting his enterprise going again. Why? Stevenson said his land is in the floodway and FEMA won’t allow him to repair the levee on the property.
At an Orange County Commissioners Court meeting Aug. 5, Stevenson, who owns the Parkwood Land Company, requested that commissioners approve a measure grandfathering a levee on his property “from requirements outlined in the Orange County Flood Prevention Order.” He said he believed grandfathering the levee would allow him to continue repairs by adding fill and ultimately allow him to utilize his property in Orange County on the Neches River for development.
Stevenson’s attorney Charles “Chuck” Kibler spoke on his behalf Aug. 5. Kibler provided handouts to the commissioners, including a letter drafted by the Department of the Army, Galveston District, Corps of Engineers North Evaluation Unit Leader Bruce Bennett from April 17, 2007.
The letter reads, “This office received a request to repair an existing levee on a property located northeast of the intersection of the Neches River and Interstate 10. Based on our review of the project, we have determined that you may proceed with the repair of the existing levee as proposed in your December 11, 2006 letter. …”
In the letter, Bennett stipulates the Parkwood Land Company must comply with Nationwide Permit (NWP) regulations during their repairs: “Since the levee was built prior to the inception of Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899 plus the fact that jurisdictional activities that have occurred prior to July 19, 1977, are authorized (grandfathered) by the NWP, the levee is considered to be previously-authorized and can be repaired pursuant to NWP 3.”
At the same meeting, Pct. 4 Commissioner Jody Crump said the levee had been there for more than 100 years and seemed to disagree with FEMA’s restrictions in this instance since the Army Corps of Engineers grandfathered the levee per the 2007 correspondence. Pct. 1 Commissioner David Dubose expressed reservations regarding the grandfathering of the levee. He said his precinct was hit hard by flooding, and he could not justify jeopardizing the county’s flood insurance, which could be threatened if FEMA was defied.
Needing more information to make an educated decision, commissioners agreed to revisit the issue at their next meeting Aug. 12.
At the Aug. 12 meeting, Orange County Attorney Douglas Manning said FEMA has concerns regarding the levee and fill that has been brought in by Stevenson in what he said was an attempt to repair the levee previously.
“(FEMA personnel) are very concerned with the level and type of fill that is out there,” Manning said. “They thought there was a certain amount of fill out there. This was much more than they anticipated. … They are here and are prepared to speak to the issue in and of itself and also to the compliance with the National Flood Insurance Program. This is bigger than just an issue of the levee issue. The levee issue has become clouded by the fact that the other fill has been deposited into the floodway. There is not a mechanism nor is there the ability to grandfather the levee for a couple of reasons. One, there is no procedure in the flood damage prevention order. Secondly, because there is so much additional fill that’s been deposited in and around the levee … the fill has to be removed before you can consider any other course of action.”
Jack Graham, a senior natural hazards specialist with FEMA’s flood mitigation and insurance department, approached the podium and addressed the court, agreeing with Manning’s summarization.
“The amount ... the type of fill that has been placed in this area is a large concern to us, and I think it would be to the community as well,” Graham asserted. “I think the amount of fill out there, and again I am not an engineer, but it would have an effect … (the base flood elevation) would rise. The fill has not been permitted … and there is a no-rise certificate on record. So basically, what the county would have at this point is a violation of the National Flood Insurance Program.”
Graham said the floodway is a no-rise zone and a professional engineer would have to use hydraulic analysis to ensure the fill would not cause a rise in the water level and issue a “no-rise certificate.”
“In a floodway, there is zero rise allowed,” Graham explained, meaning the base elevation of the water cannot rise. “Our responsibility to FEMA is to work with communities to ensure compliance of the NFIP. By having this unauthorized, un-permitted fill in the floodway, it creates a violation for the county, so it is our recommendation that the fill be removed. Otherwise the violation remains and we are obligated, because we know the fill is there, to monitor this activity and basically see that the fill is removed. The consequences are real tough.”
Graham said placing fill in floodways is a “serious violation” because it could cause a diversion of the floodwaters. He said if the Orange County approves grandfathering the levee, the county would be in violation, and Orange County residents participating in the NFIP could be charged a $50 surcharge initially and finally lose their flood insurance altogether.
Graham and FEMA engineer Larry Voice surmised the fill could cause floodwater to be redirected, causing an increase in flooding along the bank of the river, possibly causing floods to extend further inland in severe weather.
Stevenson said he stopped adding fill to the levee after a “stop work” order was issued by Orange County in 2010. He feels the letter sent by the Army Corps of Engineers and NWP 3 referred to within that letter are proof that he can repair the levee without causing damage to the floodway.
Graham said there could possibly be a way for Stevenson to move forward.
“What we said was, show us that there is no rise to the base flood elevation through that engineering analysis (through hydraulic analysis) … on that floodway where all that additional fill has been brought in; if that shows a zero rise and all other permits are received, then a development permit could be issued.”
Judge Carl Thibodeaux asked, “If we grandfather it in, what could it do to our flood insurance program?”
“It’s going to remain a violation,” Graham answered.
“OK,” Thibodeaux said.
After numerous questions from concerned commissioners regarding the matter, Crump motioned to grandfather the levee. The motion died with no second.
Stevenson said he once planned to gather investors and create a boardwalk similar to the one in Kemah with various attractions and businesses to bring tourist dollars into the area. But for now, his plan is on indefinite hold. A Vietnam Veteran who served three tours of duty, Stevenson said he has overcome his fair share of problems throughout his life, and he expects to hurdle the obstacles set in his path by the levee dilemma, as well. Now faced with the probability that he will have to remove fill from the levee or risk Orange County’s participation in the National Flood Insurance Program, he has a bumpy road ahead indeed.
“I will get this resolved,” he vowed.