I came to Houston and Rice University in 1972 and obtained a masters degree in Environmental Science after I had completed law school.  My first job out of graduate school included participation in the design of the natural drainage system at a new development in Montgomery County called the Woodlands.  My next job was at a so-called think tank named the Rice Center where I wrote a paper discussing flooding, including retention and detention ponding.  Here, a Rice Center board member, who was a land development lawyer, tried to have all mention of retention and detention ponds removed from my article because, according to him, those practices would never be used in Harris County. 

In 1979, I wrote a monograph on the Texas Law of Drainage with a case study on Harris County for the State of Texas that was republished in 1981. I was involved in Scarsdale/Sagement flooding litigation of the mid 1980s and I authored a critique of the flood management policies of Harris County in 1994 with my partner Mary Carter.  I litigated the Greens Bayou flooding of 1989 and 1992 and the White Oak Bayou flooding of 1998 in state district court. 

I have been involved with flooding issues in this town for a long time.  And before I go further, let me clearly state that I am no longer taking new flooding lawsuits involving dollar damages against governmental entities in Harris County.  Instead, I am devoting my time and attention to reforming flood control at the City and County level.  And let me be clear – we need major flood management reform in this town.

How many of you here have flooded?  How many of you have watched the water rise to your door sill, stuffing anything that you could find into cracks and crevices to try to hold back the rising water?  How many of you have recoiled in horror as the floodwater seeps under the sill, wetting the carpet despite your frantic efforts, and then rising relentlessly higher, covering the floor and moving up the walls?  First you put the smaller items on the taller furniture, then you move whatever you can upstairs, if you are lucky enough to live in a two-story house.  How many of you have been rescued through your attic vent by the fire department flood rescue squad?  And how many of you have come back to silt and mud all over your dreams and hopes and aspirations?

            It is not that we don’t know that Houston floods.  It flooded before we came here and it has been consistently flooding since we arrived.  The coastal tides have often been five feet above sea level and have reached ten to fifteen feet above sea level on occasion.  We’ve had over 40 inches of rain in 24 hours from Claudette in 1979 and we had from 12 to 24 inches in 24 hours during Allison.  Our rivers and bayous consistently spill over their banks.  And even as bad as Allison was, we have not seen our worst flood – one that combines excessive rainfall with really high tides.

 We know these things.  We know we can and do flood.  In my opinion, however, our community has chosen to allow this information to be ignored and misused in our development processes and in our city and county governance.  The subject of flooding and flood planning simply does not compute.  No comprendemos – we do not comprehend.

 I believe that the citizens – the public - of Harris County have been shortchanged by the flood-related programs and policies of our local governments.  These citizens pay for flood management and get a poor return for their investment in my opinion.  I don’t blame the Harris County Flood Control District, although I have been critical of them in the past and will be in the future as necessary.  In my opinion, the problem in Harris County and the City of Houston is ultimately a political one – the elected officials are failing us. Judge Eckels and Commissioners Radack, Eversole, Lee and Fonteno are not taking care of the public and the City of Houston is simply “missing in action” in my opinion.  We deserve much more from these governmental units than we are getting. 

 We have a problem with regard to flood management in Harris County.  This problem exists because we have never considered flooding in a comprehensive manner and because we have never viewed flooding as an issue to be managed.  Instead, our region has been stuck in a time warp called “flood control”.    Flooding cannot be controlled in Houston, not in the traditional, engineering-solution manner that we have been following.   Here are my thoughts on reforming flood management in Houston and Harris County.

  Here are my thoughts on reforming flood management in Houston and Harris County.

GET THE FOCUS CORRECT

First, the focus of our flood management program is not correct.  The problem is that the citizens of Harris County are not the flood management “clients” of the local governmental units.  To date, the preferred flood program has been one that interferes as little as possible with the real estate development process.  That focus must change.  

            This issue is very similar to the problem that the Texas Natural Resource Conservation Commission (TNRCC) had that was finally addressed by the Texas Legislature in the last session.  Several years ago, the TNRCC started utilizing Total Quality Management (TQM) principles to evaluate its success at achieving its mission.  For TQM purposes, the agency defined its “client” as the applicant for TNRCC permits, not the public that was protected by its regulations.  That TQM decision affected every action that the TNRCC took and ultimately was changed by Legislative action. 

 Until the public is clearly established as the “client” of our flood management actions, our flooding problems will continue.

COMPREHENSIVE FLOOD MANAGEMENT

            Second, the delivery of flood management services should be viewed comprehensively.  This is not limited to flood plain management but instead represents an integrated view of flood-related activities. There are six aspects to integrated flood management:  (1) realization of the implications of our land development pattern; (2) regulation of land development activities; (3) surviving the flood event; (4) effective post-flood event services; (5) appropriate flood plain maps and policies; and (6) flood mitigation planning.  These six aspects should be the goals of a comprehensive flood management program.

           1.  Land Development Patterns

First, consider the pattern of land development.  Development in Houston and Harris County started along Buffalo and White Oak Bayous and along the Ship Channel and has been expanding northward, westward and southward ever since.  All of our development is moving further upstream, dumping more excess stormwater on the land that is already developed.  That pattern is a reality that must be addressed in any comprehensive approach to flood management.

2.  Land Development Regulation 

Next, flood management must be integrated with land use regulation on a watershed-by-watershed basis.  It is absolutely essential that the flood related development regulations of Harris County and the City of Houston and other local governments be coordinated and melded together.  We should expose governmental jurisdictions that are not taking the steps necessary to regulate land development that increases downstream flooding.

A clear regulatory path should exist connecting flood plain computer modeling with subdivision plat approval and building permit issuance.  Clear policies should exist that specify that all flood-related mitigation is to be constructed before any land development occurs.  There should be clear responsibilities articulated for inspection of developments to ensure that the project is built as designed. 

All engineers for developers should be required to submit engineering opinions that downstream flooding will not be increased by the proposed development and that all increased runoff is contained on-site.  There should be no exceptions to this policy of no increase in run-off for any development of any size unless regional-scale retention or detention ponds are in place and certified by a sealed engineering report. 

As part of the combined delivery of flood plain management, we need clear policies about conflicts of interest.  If an engineering firm is doing work for Harris County or the City of Houston, then that firm should not be allowed to work on any development approval before either Harris County or the City of Houston.  If an engineering firm is going to work for the public, then we should be able to gain the commitment that they work for us.  We also need to address political contributions to the same elected officials from whom work is being sought and from whom approvals for projects must be secured.  These conflicts must cease.

3.  Flood Warning and Preparedness

            The third element is that the focus of flood management should be expanded to include helping residents survive a flood. We need to provide accurate and clear warnings.  If the radar imagery and the flood gauges show an imminent flood, by all means get the word out.  We cannot stand by and allow flooding to occur without attempting to alert the public with our best information. 

We need a list of flood survival tips that would be given to all citizens.  No one should die from electrocution because they did not know to cut off power at the breaker box.   We need safe streets identified.  We need dangerous streets identified.  We need this information on street signs and on city maps. We need a list of what to save and what to destroy after being flooded.   We need to protect flood-damaged furniture and other important items that are put in people’s yards to dry.  Nothing is worse than to be flooded out of your home and then discover that thieves simply stopped on the street and filled up their trucks with your property.

4.  Post-Flood Assistance

The fourth item of a comprehensive policy is good, practical services delivered to the client – the public - after a flood occurs. We need clear policies regarding rebuilding.  We need fast action on building permits.  Either grant or deny them efficiently.  There is no reason for a family to be living in a motel for over three months without a determination being made on whether or not they can rebuild.  We need a clear articulation of our policy on buy-outs.  We should not be making new policies after the flood event occurs. That leads to unnecessary delay.  We also should have adequate money budgeted for buy-outs so that we can move fast when the flood occurs.

We need flood relief and assistance to be coordinated and delivered effectively.  We cannot excuse inefficiency on this task that is a centerpiece of helping those who have been flooded.  We need excellent advice regarding mold. We need to identify and prosecute those contractors who are perpetrating fraud upon the public.

5.  Appropriate Floodplain Management

Fifth, we need serious policies regarding flood plain mapping.  Our flood plain maps in Harris County have been the biggest inside joke in town.  No one with knowledge of Harris County flooding issues believes these maps, yet the public relies upon by these maps when they buy homes and when they make decisions on renovation either after flood events or when they simply want to remodel.  I believe that the action of our local, state and federal governments in continuing to allow the public to rely on these maps when they know they are in error is nothing less than fraud.

We need to clearly state that these flood plain maps are inaccurate if we know them to be.  Harris County had information regarding increased flood plains on White Oak Bayou for at least six to eight years before this information was released publicly.   The decision to withhold that information directly led to hundreds of people being harmed by the floods of 1998 and 2001.  How many of our flood plain maps today are in error?

 Actually, there is a major restudy being done on all flood plain maps in Harris County and the likelihood exists that both the 100 year floodplains and, most importantly, the 100 year floodways will be enlarged substantially on most creeks and bayous.  Given this information, a moratorium on new development in the existing floodplains should be imposed until these maps are completed and until the floodways are known.  On White Oak Bayou, the floodways increased substantially from 1990 to 2000.  They likely will on the other bayous as well.

We should tell the public the truth about flood plain mapping;  local governments should clearly state that localized flooding is not included in flood plain maps.  We should make an effort to identify localized flooding areas that are not shown on the official FEMA maps and get these areas displayed on locally-produced maps.

We should advise any resident of Harris County whose slab is flush with the street that they are subject to flooding from less than a 100 year event.  All citizens of Harris County should be advised by our local governmental units to purchase flood insurance whether or not they are in the 100 year flood plain.

6.  Proper Flood Minimization Planning

            Sixth, with regard to flood minimization engineering studies, the following suggestions are appropriate.  Given that we are developing up all of our watersheds, the emphasis should be placed on detention and particularly retention ponding on all watersheds. No flood abatement plan should ever be developed that provides a 100-year level of protection and then allows upstream development to erode that level of protection down to a 25-year or a 10-year level of protection. Such proposals have been made in the past on Cypress and Clear Creeks.  We should clearly prohibit such actions that ultimately encourage building in the 100 year floodplain that we know will be flooded in the future.  The public should be given clear information about the budgets that are available for flood control and the amount of money that will be dedicated to flood control actions at the City as well as the County level.

Those are the six goals that I propose for flood management in the Houston area.  However, the goals must be accompanied by processes designed to determine whether or not the goals are being met.  These processes include audits, root cause analysis and the appropriate use of metrics.

THE AUDIT PROCESS

            Both the City of Houston and Harris County should be subjected to an independent outside audit process to determine the extent to which compliance with the goals and objectives identified above has occurred and is occurring.  This audit process could be similar to that employed in the 1992 agreement that I entered into with Formosa Plastics.  In that situation, Formosa had one of the worst environmental compliance records on the Texas coast and agreed to subject itself to outside audits and outside evaluation.  Through the audit process, experts were brought in to review the policies and procedures that were in place at Formosa Plastics and to assist Formosa in developing new policies.  Over 805 recommendations for specific changes were accepted by Formosa Plastics over a five-year period. 

 The results of that effort were amazing.  Formosa went from being one of the poorer companies along the Texas coast from an environmental compliance standpoint to being one of the better companies.  Their violations virtually ceased.  Their reportable quantity releases went down fourfold, even though the plant doubled in capacity.  Their reportable injuries went down sixfold to below industry norms.

 The audit process for flood management would evaluate the specifics associated with the six goals identified previously.  For example, outside auditors would review whether, in fact, flood-related regulations existed, whether they were coordinated with computer modeling, whether engineering opinions were being rendered, etc.  Similarly, the audits would evaluate the existence of various other elements identified as goals.  In this manner, an independent determination could be made as to whether or not the appropriate framework existed to achieve our flood management goals.

 Audits alone though are not enough.  There are at least two additional components that must be added.  The first is a root cause analysis and the second is metrics by which to measure success. 

ROOT CAUSE ANALYSIS

Root cause analysis is used in manufacturing to determine the cause of various types of accidents and failures.  If, for example, there is a reportable quantity release at a vinyl chloride plant, root cause analysis would be used to systematically track down the reason for the release.  As each release is evaluated in detail, it is possible to identify trends and to correct any problems that are revealed.

The important point here is that root cause analysis is a diagnostic tool that can be used by a party wishing to make corrections and improve performance.  However, to be effective, it must be done honestly and completely.  It cannot be self-serving. It cannot mask the truth – it must reveal the truth.

With regard to flooding, we must be truthful about the amount of rainfall and the impact of increased development.  It seems as if God has been blamed for every big flood in Harris County.  There are only two floods where God can be appropriately blamed - Claudette in 1979 and Allison in 2001 – and then only partially. 

Root cause analysis does not blame God if humans were the culprits.  Contrary to the report released by Harris County Flood Control District in 1998, the flooding on White Oak Bayou associated with Tropical Storm Frances was due to an approximate 10 to 25-year storm.  The flooding of over 1200 homes on White Oak Bayou was no act of God.  That flooding was due to the approval of 2500 acres of land development in the upper White Oak Bayou watershed without detention controls and without downstream flood protection being provided that was specified by the plan prepared by Pate Engineers and adopted by Harris County.  If the root cause analysis is not truthful, it cannot serve the public, the client in my proposal for reform. 

             METRICS

          The second important issue is called metrics.  How do we measure success of our flood management activities in Harris County?  How well do our flood management activities work? 

          This issue is not simple.  In fact, it is extremely complex and is directly related to the goals that are set by the organization.  Metrics is one of the most important management issues for major corporations.  If you have no method to measure success, then are you succeeding? 

          Metrics, correctly used, tell us a lot about achievement of our goals and objectives.  For example, in the case study on Formosa Plastics, some of the metrics that were used to evaluate success of the implementation of the audits were number of environmental violations each year, the number of reportable releases per year and the incidence of work-related injuries per year, to name three.   

            The same procedure should be applied to flood management activities in Harris County and in the City of Houston.  However, what are those metrics?  How, in fact, do we evaluate success? 

          At this time, the only metrics available to me regarding the success of our flood management in Harris County are those provided by the National Wildlife Federation in their study of repetitive flood losses in the United States titled “Higher Ground”.  The metrics in that study compel the conclusion that we have major problems in Harris County and the City of Houston.  Here, the City of Houston had the third highest repetitive flood losses in the United States and Harris County had the fourth highest repetitive flood losses in the United States, with Montgomery County being sixth and Friendswood being tenth.   That is one metric.

          We need a metric related to flood frequency and number of homes flooded.  If we have a five-year storm and 50 houses are flooded, that is different than 50 homes flooding in a 100- year storm. That, in turn, requires an honest evaluation of rainfall frequency.  Let’s not have any more reports from Harris County Flood Control District stating that the rainfall was a lot higher than reported because the rainfall was being blown sideways and could not get in the gauge when analysis of radar imagery clearly confirms the rain gauge reports.  We need metrics regarding the number of persons who were flooded outside of the mapped floodplains.  We need metrics about the number of persons who were flooded who were not covered by flood insurance.

          We also need metrics related to the delivery of services after the storm.  We need to know the average time it took for individuals and businesses to receive aid.  We need to know the average time it took to receive building permits.  We need to know the average time that it took to be bought out, if a buy-out was proposed.  We need to know how the system performed after the flood as well as before and during the flood.

POLITICAL REFORM

Flood management in Harris County is not occurring in a political void.  There is a system of political contributions that is both extensive and pervasive and is at the center of the Harris County flooding problem. 

Let’s take a look at the campaign contributions to three of our county officials – County Judge Eckels and Commissioners Eversole and Lee.  They are being paid literally hundreds of thousands of dollars in contributions by engineers, lawyers, developers, architects, and contractors.  In the 1999-2000 reporting period, 50% of Judge Eckels’s campaign contributions, representing over $264,000, came from just over 100 individuals, firms and PACs.  This same exact group of engineers, lawyers, contractors and developers also contributed to Commissioner Eversole’s and Commissioner Lee’s campaign funds in the same time periods.  50 % of Eversole’s campaign contributions - $606,000 - came from these exact same individuals, firms and PACs and 69% of Lee’s campaign contributions – representing $357,400 - came from those same individuals, firms and PACs. 

The Top 17 contributors to County Judge Eckels and Commissioners Lee, Eversole and Radack for 1999 and 2000 included 13 engineering firms, each of whom contributed over $32,000 to these four candidates.

Interestingly, Judge Eckels spoke out against this system in his February, 1999, State of the County address.   In this speech, he said “I ran a campaign promising honesty, integrity and hard work.  Today I find myself immersed in a system that rewards none of the above.”  Eckels continued, stating “It is easy to see how the public would question my motives, or the motives of any of us, when I can raise a million dollars for my campaign from the very people I am negotiating with for multimillion dollar contracts with Harris County.  But that is how the system works.  If I don’t raise hundreds of thousands of dollars from these folks, there is always some sorry SOB out there who will.”  (Houston Chronicle, 02/09/99). 

            I recently heard a person talking about paying bribes in some third world country – about the rampant corruption down there.  And then they expressed their self-satisfied opinion that we are lucky that we aren’t corrupt like that in Texas.  We act like when the exchange of money is legal – when the campaign donations are out front and registered – then there is no corruption.  It’s okay and superior because we are, if nothing else, a nation of laws. When the floodwaters enter my home because the county commissioners court was influenced by legal contributions to build some project that took money away from community flood control to help some engineer or lawyer or developer, I should feel gratified that our system is not corrupt like it is in some third world country.

From a system standpoint, these contributions do worsen our flood problems in Harris County.  The best flood control alternative for Houston – the one that really works – is to purchase land and set it aside for detention or retention ponding, such as Addicks and Barker Reservoirs.  Larry Dunbar and I are currently studying the effectiveness of encircling Houston with these flood control reservoirs and the preliminary results indicate that these ponds could lead to substantial flood reductions on Brays Bayou, Clear Creek, White Oak, Greens, Sims and Hunting Bayous and Spring and Cypress Creeks. 

However, the reality of such a solution is that very little engineering or construction work is required and the land cost is high.  Those political contributions cannot be repaid with these flood control reservoirs because there are insufficient design and construction fees relative to total cost. 

This fact was confirmed in a recent conversation with a Harris County official who stated that he could not get the money to build retention ponds because the engineers, developers and lawyers demand and get roads and engineering construction projects.  Our best flood control option is being passed over because of the reality of political contributions.  That strikes me as more offensive than third world bribery. 

CONCLUSION

 The public is not being treated fairly with respect to flood control in Harris County.  From top to bottom, the system is in need of reform.  We need to get our goals straight.  We need to ensure that we have an integrated governmental system that addresses all necessary aspects.  We need to audit ourselves to insure that we meet our goals. We need to engage in root cause analysis and we need to develop metrics.  And we need to eliminate the role of political contributions in decision-making regarding the protection of the public from flooding.

            Reform is never easy.  Those in a position of power will resist.  Those making money from the existing system will fight to prevent change.  But the public is a sleeping giant that is beginning to awaken. 

            It is time that the public that has been flooded in this town – that the public concerned about flooding – coalesce into a political force.  There is no reason why we could not become a dominant force in the next county elections if we simply decide to vote together against the status quo regarding flooding in this town. 

           Commissioner Fonteno has indicated that he will not run again so there will be no incumbent running in the eastern precinct for Harris County.  Those in the Greens, Halls, Hunting, Carpenters and Armand Bayou watersheds as well as those along the San Jacinto River will have a chance to elect a new commissioner.  Additionally, the County Judge’s seat is also up for re-election.  I suggest that we target these two races to begin the political process of reform of the flood management program in Harris County.

          There is no reason we can’t have an excellent flood protection system.  However, it is not going to simply happen.  We must demand it and make it happen.