U.S. Army Corps of Engineers civil works controversies (New Orleans)

Through 19 Flood Control Acts since 1917, the United States Congress has authorized the United States Army Corps of Engineers to become involved with design and construction of flood protection and damage reduction system in the Greater New Orleans area and throughout the nation.

The Flood Control Act of 1965 (FCA 1965), enacted after Hurricane Betsy flooded large sections of New Orleans, mandated the Corps of Engineers as the Federal agency responsible for levee design and construction. Definition of requirements, operations and maintenance remained the purview of the local levee boards, tasks that have been their responsibility since 1890. Among other projects and studies, FCA 1965 authorized the Lake Pontchartrain and Vicinity, Louisiana Hurricane Protection Project. The project was to construct a series of control structures, concrete floodwalls, and levees to provide hurricane protection to areas around Lake Pontchartrain. The project, when designed, was expected to take about 13 years to complete and cost about $85 million. Although federally authorized, it was a joint federal, state, and local effort. ""... As GAO reported in 1976 and 1982, since the beginning of the project, the Corps has encountered project delays and cost increases due design changes caused by technical issues, environmental concerns, legal challenges, and local opposition to portions of the project.""

In August 2005, forty years later, when Hurricane Katrina passed to the east of New Orleans, the Corps's flood protection failed catastrophically with levee breaches in over 50 places. The levee failures caused massive flooding in New Orleans with associated property loss and drownings. This was the first total failure of a USACE system. On 29 August 2005, the hurricane protection authorized was between 60 and 90% complete; and the projected date of completion was estimated to be 2015.

Controversies following Hurricane Katrina (2005)
In the aftermath of Hurricane Katrina, numerous levee failures caused catastrophic flooding of the Greater New Orleans area. The failure of the levees cast the spotlight on the Corps of Engineers who had built the levees. Several investigations have attempted to examine the cause of the levee failures.

Levee breaches immediately following Hurricane Katrina
There were 53 levee breaches in the New Orleans area and nearby St. Bernard Parish. 80% of the city of New Orleans and 100% of St. Bernard parish flooded because of levee breaches. A number of levee systems protecting the Greater New Orleans area failed:
 * on the east and west banks of the Industrial Canal,
 * the east and west banks of the London Avenue Canal,
 * the east bank of the 17th Street Canal,
 * the north bank of the Gulf Intracoastal Waterway,
 * and the west bank of the Mississippi River Gulf Outlet (MRGO).

Design problems and mechanisms of failure
On 5 April 2006, months after independent investigators had demonstrated that the levee failures were not due to natural forces beyond intended design strength, Lt. Gen. Carl Strock testified before the U.S. Senate Subcommittee on Energy and Water that, "We have now concluded we had problems with the design of the structure." He also testified that the Corps of Engineers did not know of this mechanism of failure prior to 29 August 2005. The claim of ignorance is refuted, however, by the National Science Foundation investigators hired by the Corps of Engineers, who point to a 1986 study by the Corps itself that such separations were possible in the I-wall design.

Senate committee hearings
Lt. Gen. Carl Strock told a Senate committee that the corps neglected to consider the possibility that floodwalls atop the 17th Street Canal levee would lurch away from their footings under significant water pressure and eat away at the earthen barriers below. "We did not account for that occurring," Strock said after the Senate Appropriations subcommittee hearing. "It could be called a design failure."

Independent Levee Investigation Team (ILIT) report
An independent investigation of the 2005 Greater New Orleans area levee failures was released 31 July 2006, by the ILIT team. The team was led by the University of California at Berkeley, and was supported in part by grants from the National Science Foundation.

Their report "identified flaws in design, construction and maintenance of the levees that contributed to the failures. But underlying it all, the report stated, were the problems with the initial model used to determine how strong the system should be." The hypothetical model storm upon which storm protection plans were based is called the Standard Project Hurricane, or SPH.

They found that the system in New Orleans was flawed from the start because the model storm it was designed to stop was simplistic, and led to an inadequate network of levees, flood walls, storm gates and pumps. The report also found that "the creators of the standard project hurricane, in an attempt to find a representative storm, actually excluded the fiercest storms from the database."

Despite the rudimentary nature of their base model, the report found that "The standard project hurricane became enshrined within the corps (sic) [...] and the corps saw little need to go back and reanalyze 'the true risks of catastrophic flooding' in New Orleans. Even when the National Oceanic and Atmospheric Administration, the successor agency to the Weather Bureau, recommended increasing the strength of the model, the corps did not change its construction plans."

Interagency Performance Evaluation Task Force (IPET)
In October 2005, Lt. Gen. Carl Strock, Chief of Engineers and the Commander of the Corps of Engineers, established the Interagency Performance Evaluation Task Force (IPET) to "provide credible and objective scientific and engineering answers to fundamental questions about the performance of the hurricane protection and flood damage reduction system in the New Orleans metropolitan area.

IPET's draft final findings, which are disputed in five of seven of the major failure mechanisms, indicate that, "With the exception of four foundation design failures, all of the major breaches were caused by overtopping and subsequent erosion. Reduced protective elevations increased the amount of overtopping, erosion, and subsequent flooding, particularly in Orleans East. The structures that ultimately breached performed as designed, providing protection until overtopping occurred and then becoming vulnerable to catastrophic breaching. The levee-floodwall designs for the 17th Street and London Avenue Outfall Canals and IHNC were inadequate for the complex and challenging environment. In four cases the structures failed catastrophically prior to water reaching design elevations. A significant number of structures that were subjected to water levels beyond their design limits performed well. Typically, in the case of floodwalls, they represented more conservative design assumptions and, for levees, use of higher quality, less erodible materials."

A grassroots group, Levees.Org, headquartered in New Orleans, questions the credibility of this levee investigation because the study was convened and closely managed by the Corps of Engineers, which is also the lead federal agency responsible for the levee design and construction.

Composition of IPET teams
According to the IPET draft final report, IPET membership consisted of individuals from the Universities of Maryland, Florida, Notre Dame, and Virginia Polytechnic Institute, the National Oceanic and Atmospheric Administration, the South Florida Water Management District, Harris County Flood Control District (Houston, TX), the United States Department of Agriculture, and the United States Bureau of Reclamation as well as those from USACE.

U.S. Army Corps of Engineers (USACE) involvement
Of the top three IPET leaders, two work for USACE and one did for 15 years (1986–2002). Of the 23 task team leaders, six work for the Corps and seven work for the Engineer Research and Development Center (ERDC). In 10 out of the 15 volumes of the IPET draft final report, the majority of the team members were Corps of Engineers personnel.

American Society of Civil Engineers (ASCE) involvement
In April 2007, the American Society of Civil Engineers (ASCE) began referring to the flooding as the worst engineering catastrophe in US history.

Two months later, a press release issued by an investigative team convened by the ASCE stated that two thirds of the deaths would have been avoided had the levees held, but that conflicted with the team's report itself.

Levees.Org believes an expert review panel convened by ASCE to certify and validate the IPET process was also an apparent conflict of interest because the Corps directly paid ASCE over $2 million and awarded the panel members Outstanding Civilian Service Medals (OCSM) 18 months before their work was complete. The OSCM is an honor traditionally given to recognize outstanding service and contributions to society and the nation on the part of civilians and can be given by any Department of Defense major commander.

Conflict of interest claims
In October 2007, Dr. Ray Seed, University of California-Berkeley civil engineering professor and ASCE member submitted an ethics complaint to the ASCE alleging that the Corps of Engineers, with the help of the ASCE, sought to minimize the Corps' mistakes in the flooding, intimidate anyone who tried to intervene, and delay the final results until the public's attention had turned elsewhere. The Corps acknowledged receiving a copy of the letter but has refused to comment until after the ASCE's Committee on Professional Conduct (CPC), led by Rich Hovey, comments on the complaint. It took over a year for the ASCE to announce the results of the CPC. When the results of the self-study were finally announced, the ASCE panel did not file any charges of ethical misconduct. They blamed their errors in their June press release on its creation by "staff level and not by review panel members."

Timeline of IPET actions
As of November 2009, the National Academy of Science had not released the results of their review of the IPET report.

Team Louisiana investigation report
Scientists from LSU and from the private sector conducted a forensic investigation of the levee failures. Commissioned by the Louisiana State Department of Transportation and Development (DOTD), it was led by Dr. Ivor van Heerden, Deputy Director of the LSU Hurricane Center, and released in 2007. They found that the hurricane protection system was not properly conceived to accomplish the 1965 Congressional mandate to protect against the “most severe combination of meteorological conditions reasonably expected,” and they highlighted many other shortcomings in the hurricane protection system creation practices. It recommended independent review of levee projects, among other suggestions.

Boehlert Task Force report
The Boehlert Task Force was an independent panel of experts convened to conduct a peer review of ASCE investigations. Boehlert's task force was assembled at the request of ASCE in response to Dr. Seed's ethics complaint and also a video produced by Levees.org spoofing the apparent conflict of interest. The Boehlert Task Force examined ASCE’s existing review process, at the request of David Mongan, the President of ASCE. The process by which ASCE peer reviews were conducted was found to be in need of improved clarity, efficiency and transparency.

The task force was chaired by the Honorable Sherwood L. Boehlert, former Chairman of the House Science Committee. The other participants are as follows: Joseph Bordogna, PhD, Former Deputy Director of the National Science Foundation; Jack W. Hoffbuhr, P.E., DEE, Former Executive Director of the American Water Works Association; Jack Snell, PhD, Former Director of the National Institute of Standards and Technology’s Building and Fire Research Laboratory; William A. Wulf, PhD, Former President of the National Academy of Engineering.

The task force issued a report of their findings.

Negative comments
The report carried criticism on how the ASCE conducts its peer reviews as well as recommendations to improve its processes. One notable comment was the inadequate "consideration of real or perceived conflict of interest". All the criticisms of ASCE's peer reviews noted by the Boehlert Task Force are present in the ASCE's peer review of the Corps of Engineers' IPET report.

The report cited a “lack of formal, well articulated, procedures for conducting engineering reviews,” and recommended that the ASCE develop a Manual of Engineering Review Procedures covering each phase of the peer review process, with the manual to be made available to the public. It suggested that committee membership should include non-members of the ASCE. The report commented on funding: “The way in which engineering reviews are funded is a source of perceived and potentially real conflicts of interests and ASCE should take measures to address these conflicts.” The report stated that the “committee selection process needs formal procedures to assess potential or perceived conflicts of interests.”

Positive comments
The task force also acknowledged that the ""[P]otential conflicts of interest in ASCE's engineering review process are not unique to ASCE and can be addressed through procedures utilized by many government agencies charged with providing unbiased assessments to the public"." Despite the criticism, however, Mr. Boehlert's task force also praised ASCE by writing, ""ASCE has long been respected for its investigatory skill and expertise, and its work on assessments is held in high regard by those in the engineering profession. ... After a thoughtful and exhaustive examination, we remain firm in our belief that ASCE not only plays a vital role in conducting post-disaster engineering assessments, but that the Society is the single best organization to carry out this type of work for our nation ... The Task Force believes ASCE remains the best option for conducting post disaster engineering assessments.""

Public relations controversies
In 2007, the New Orleans District hired a PR firm, Outreach Process Partners (OPP), allegedly to develop educational materials and set up public meetings that the Corps is required by law to hold in order to get valuable feedback from residents about the Corps' projects. For this work, OPP receives over $1,000,000 in federal dollars per year. The total cost of the PR contract is $5,250,000.

In May 2009, an internet blogger discovered that OPP had a bar graph on its website that boasted how it helped reduce negative news coverage that plagued the Corps following Hurricane Katrina. New Orleans residents felt that the Corps' should not be spending taxpayer dollars trying to repair the Corps' public reputation.

Internet Scandal
In December 2008, the New Orleans CBS affiliate television station publicized an incident in which employees of the U.S. Army Corps of Engineers used taxpayer-funded computers to post derogatory blog comments deriding citizen activists' efforts. In response to the news story, the U.S. Army Corps of Engineers described the event as an isolated incident. Three days after the incident was publicized, the Commander of the New Orleans District of the Corps of Engineers, Colonel Alvin Lee, issued a formal apology. “Please accept my apology for the unprofessional comments someone in my District posted to your web site,” said the letter. “I have reinforced with my entire staff that this was an inappropriate and unacceptable use of our computers and time.” However, many residents are calling for those responsible to be fired from their posts.

On 23 June 2009, US Senator Mary Landrieu issued this statement to WWL TV Eyewitness News in New Orleans with regard to the scandal: “I am very concerned by the reports that a number of Corps employees have engaged in a disingenuous campaign to undercut their critics in Louisiana,” Landrieu said. “My staff and I will continue to review these allegations and will urge Pentagon officials to thoroughly review this matter.”

On 29 September 2009, the Department of Defense Inspector General's Office has closed its investigation. "We believe that (corps New Orleans District office) officials took appropriate actions once informed of the allegations at issue," Assistant Inspector General John Crane said in a letter to U.S. Sen. Mary Landrieu, D-La. "Accordingly, further review by this agency is not warranted." Those actions included strongly worded messages to corps employees telling them comments that demeaned corps critics were not allowed. In addition, access to the site of the Levees.org group was blocked from corps computers, preventing employees from commenting there. Lastly, the employee of a contractor—who was a former corps employee himself and was identified as using a government computer to post disparaging remarks on NOLA.com—was barred from working on corps projects.

Debate over type of flood protection
Different types of hurricane protection were proposed to protect the southern Louisiana region.

Following a lawsuit by the environmental group ‘Save Our Wetlands,’ the judge on the case ordered the Corps of Engineers to "redo its cursory environmental analysis. The agency eventually abandoned the gates, deciding to build taller levees instead."

After Katrina, the controversy was revisited, with some blaming the lack of floodgates – and the environmentalists – for the storm's destruction. But Corps' officials told the Government Accountability Office that "if they had gone ahead with the floodgate plan, Katrina's devastation would have been even worse, because the barriers would not have been large enough to keep the storm surge out of the lake – and the levees around the city would have been even lower."

Legal issues in New Orleans


In March 2007, the City of New Orleans filed a $77 billion claim against the USACE for damages sustained from faulty levee construction and resultant flooding during Hurricane Katrina. Of this amount, only $1 billion was designated as direct "infrastructure damages"; the rest was attributed to consequential damages such as industry losses and the city's tarnished image. Hundreds of thousands of individual claims were received in the Corps' New Orleans District office. In addition to the City of New Orleans, other claimants include Entergy New Orleans, the city's now-bankrupt electric utility, and New Orleans Sewerage and Water Board.

In February 2007 U.S. District Court Judge Stan Duval ruled that the Flood Control Act of 1928 did not apply to cases involving navigational projects. He ruled that the Corps may be sued over alleged defects in its Mississippi River-Gulf Outlet navigation channel. Immunity for cases involving flood levees was apparently not addressed at that time.

On 30 January 2008, Judge Duval ruled that even though the US Army Corps of Engineers was negligent and derelict in their duty to provide flood protection for the citizens of New Orleans, he was compelled to dismiss a class action lawsuit filed against the Corps for levee breaches after Hurricane Katrina. He cited the Flood Control Act of 1928 which, among other actions, provided protection to the federal government from lawsuits when flood control projects like levees break.

"While the United States government is immune for legal liability for the defalcations alleged herein, it is not free, nor should it be, from posterity's judgment concerning its failure to accomplish what was its task. This story—50 years in the making—is heart-wrenching. Millions of dollars were squandered in building a levee system with respect to these outfall canals which was known to be inadequate by the corps's own calculations."

Duval's decision left the New Orleans Sewerage & Water Board and Orleans Levee District as defendants in the lawsuit. The dismissal of the lawsuit also denied about 489,000 claims by businesses, government entities, and residents, seeking trillions of dollars in damages against the Corps, which were pinned to the suit and a similar one filed over flooding from a navigation channel in St. Bernard Parish. It was unclear how many claims could still move forward. The plaintiffs vowed to appeal to the United States Court of Appeals for the Fifth Circuit.

On 19 November 2009, the Court found the Army Corps responsible for the flooding by not properly maintaining the Mississippi River-Gulf Outlet Canal (MRGO). Judge Duval said that the "Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so." Duval ruled in favor of five of the six plaintiffs, awarding those from Lower Ninth Ward and St. Bernard Parish between $100,000 and $317,000 in damages. Duval, however, ruled against a couple from New Orleans East. In his decision, Duval wrote that the Corps was aware that deteriorating conditions of the canal would affect the levees in St. Bernard Parish and the Lower Ninth Ward neighborhoods. Duval awarded a total of $719,000 to the five plaintiffs but the decision leaves the U.S. government open to additional lawsuits from those affected. A spokesman for the Corps indicated the matter would be appealed, up to and including the U.S. Supreme Court.