Corps sets March deadline for temporary fix of breached Birds Point levee

Tuesday, May 24, 2011
Water from the Mississippi River, right, sweeps over the farmland in the Birds Point-New Madrid floodway, left, in Southeast Missouri on Tuesday, May 3, 2011. On May 2, Maj. Gen. Michael Walsh gave the order to intentionally breach the Birds Point levee, flooding over 130,000 acres of farmland to ease flooding upstream. (Kristin Eberts)

The message sure to infuriate property owners in the Birds Point-New Madrid floodway came down as a tweet Monday from Col. Vernie Reichling.

"Just visited the inflow of the BPNM, water is slowly stopping. Memphis engineers developing alternatives to reset levee by 1 Mar 12," Reichling commander of the U.S. Army Corps of Engineers Memphis District wrote on Twitter.

That's not what the washed-out farmers and homeowners in the 130,000-acre floodway want to hear, according to J. Michael Ponder, a Cape Girardeau lawyer representing "upwards of 80" people who have joined a federal lawsuit against the corps.

"That is different than we'd all hope," he said of the March 1 timeline. "If the corps fails to replace the levee this summer, they will compound the misery that's already been inflicted on those folks because it will be at continued risk for flooding until the levee is repaired," Ponder said.

"My clients ... well let me say this, the people of Mississippi County are independent folks, and if the corps fails to rebuild the levee, they may resort to self-help," he said, adding that there is a "contingent of concerned land owners who have already formulated a plan" to fix the levee themselves "should the corps fail in its obligation to protect the citizens of the spillway."

Corps spokesman Jim Pogue said the government would not look favorably on such actions.

Pogue hastened to add that while March 1 is the corps' deadline to have an "interim" fix of the levee, it is not necessarily the goal.

"We will certainly be working to get that in place much faster than that," he said. "March 1 is the deadline we felt comfortable with in announcing."

The corps, Pogue said, currently is developing plans for the interim solution, or a level of protection "we feel comfortable with in an average flood season that allows us to operate the floodway if we had the kind of excessive flooding we have this year." A timeline on a permanent restoration of the levee is not set.

Funding is one of the unknowns at this point, Pogue said.

The floodway remains deluged more than three weeks after the corps breached the Birds Point-New Madrid levee to ease the pressure of rising rivers threatening to flood communities upstream and downstream. Activation of the floodway, part of the corps' long-held plan of action during dangerously high river levels, was an act of last resort, according to corps officers like Reichling. They say breaching the levee has accomplished its goal. Property owners in the floodway, particularly those suing the federal government, claim the corps has violated their constitutional rights.

Cape Girardeau-based Cook, Barkett, Ponder and Wolz LC has filed a lawsuit in a Washington, D.C., federal court seeking unspecified damages for the farmers and property owners. The civil action, seeking class-action status, claims the property owners' Fifth Amendment rights prohibiting a government taking without just compensation have been violated by the corps' detonation of the levee system in Mississippi and New Madrid counties.

Ponder said the claimants involved represent more than 60,000 acres in the floodway. He said the government has yet to respond to the claims.

Ponder also takes issue with the corps' recent publication of claim forms, stating boldly, as Ponder puts it, that it will take advantage of all of its defenses and immunities. He said it's a move by the federal government to "throw down the gauntlet."

"In addition to the claim form published and the statements not accepting responsibility, they are saying 'We have immunity and defenses when you file that claim,'" Ponder said.

Pogue declined to comment on the claim forms.

Reichling's tweet sets a more definitive timeline than the U.S. Army's letter sent last week to Missouri's congressional delegation suggesting that a true damage assessment of the floodway can't begin until early July. The letter asserts the levee's restoration is a "top priority."

The March 1 deadline to temporarily repair the levee will be costly to the farmers in the floodway, the attorney said.

"What this really means is not only have our farmers lost this spring wheat crop, but any crop they may be able to get in once the water recedes is a goner as well without the levee," he said.

Meanwhile, as Reichling noted in his tweet, "water is slowly stopping" in the floodway.

"It's getting close to where the water will stop flowing through the inflow crevasse," Pogue said. "The river level is dropping to where the water will stop flowing into the floodway." He couldn't provide exact figures but said the water is considerably lower than when the floodway first opened, while acknowledging properties remain underwater. That's a point Ponder readily picked up on, noting the months-long plan to restore the levee.

"No one can return to their homes in the spillway as long as the risk of flooding remains," he said.

Staff writer Scott Moyers contributed to this report.

mkittle@semissourian.com

388-3627

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