Can the USACE (United States Army Corps of Engineers) be trusted with designing and building one of their most complex dam and diversion systems in North Dakota, when much easier projects have landed the Corps in court for negligence over the past few years.
Is this a case of the public being sick and tired of the “above the law” shenanigans used by the USACE or simply a case of the corps making things up as they go along?
We’d all like to believe in an altruistic world where personal sacrifice would have the USACE tirelessly serving the best interests of the citizens of the United States, however, it appears that the USACE clocks out before their work is done and is so caught up in the verbosity of their operational mechanics that they lost sight of the real goal of seeing the job done right the first time with due care and diligence.
| November 2009: | USACE found negligent in Katrina lawsuit – U.S. District Court. |
| November 2011: | USACE appeals Katrina decision claiming sovereign immunity – Fifth Circuit Court of Appeals. |
| March 2012: | USACE loses Katrina appeal: three federal appeals court judges have upheld federal judge Stanwood Duval’s ruling that the Army Corps of Engineers does not have any qualified immunity from liability for flooding damages during Katrina in the lower Ninth Ward of New Orleans and in St. Bernard Parish – Fifth Circuit Court of Appeals. |
| December 2011: | USACE found guilty in United States Court of Federal Claims, case Martin Construction Co. v. United States, found the USACE liable for defective design and gross underestimation of water flow. |
| April 2012: | 3 seperate suits filed against the USACE for negligence and failure to act. |
In an article that appeared in the Engineering News Record, the USACE finds itself once again the cross-hairs for negligence relating to the “very things” that they profess are their areas of expertise – above all others.
Stop and Think!
Fargo Moorhead Dam and Diversion, 2 billion dollars and climbing…and the USACE expects sovereign immunity from litigation for a project that is untested, unproven and unprecedented.
Here’s is the article with commentary:
| Spate of Lawsuits Flows From Nashville Inundation of 2010 By Candy McCampell Gaylord Entertainment Inc., whose Nashville hotel and entertainment properties sustained more than $250 million in flood damage two years ago, and others are charging the U.S. Army Corps of Engineers and National Weather Service with negligence and failure to act during the event. The 19 businesses and five insurance companies seek more than $362 million in damages after the May 1-2, 2010, storm that caused 26 deaths and more than $2 billion in damages (ENR 5/17/10 p. 18). Plaintiffs also include Gibson Guitar Corp. of Nashville; A.O. Smith Corp., a major water-heater manufacturer in Ashland City, Tenn.; and Nissan North America, whose manufacturing plant is in nearby Smyrna. In three suits filed on April 30 in U.S. District Court in Nashville, they claim the Corps didn’t release enough water from Old Hickory Dam during the five days before the forecast storm. After the storm hit, the suits allege, the agency did not follow instructions for “flood regulation,” instead waiting until water reached the top of the dam before releasing it, then discharging “unprecedented” amounts that caused the Cumberland River to swell above the 100-year floodplain to create “a man-made disaster.” |
COMMENTARY: If the USACE cannot accurately quantify water volumes and cfs flows on a system in operation, how can residents of the Red River Valley be assured similar failures won’t result in widespread devastation and loss of life?
| The NWS, they charge, ignored a computer forecast of the river cresting at 54 ft—one foot above the 500-year flood level—and instead issued a forecast on May 2 projecting a crest at 7 p.m. of 41.9 ft, barely under the 42-ft “moderate flooding” level.The Corps, meanwhile, increased releases, and the river rose past 41.9 ft less than two hours after the NWS projection, it is alleged. Old Hickory Dam is a hydropower and navigation impoundment; it is not designed as a flood-control facility.
Further, the two agencies didn’t increase communications as the rain continued and the situation worsened. |
COMMENTARY: It does not appear the USACE is capable of learning from their mistakes in terms of lack of communication. The USACE wants the public to respect their position as sacred fact but feel they should have sovereign immunity…just in case?
| A spokesman for the U.S. Attorney’s Office for the Middle District of Tennessee declined comment, citing pending litigation.The suits also charge that, before the storm hit, the Corps had one spillway gate out of use for “scheduled maintenance during one of the rainiest months of the year” and one turbine out. |
COMMENTARY: What similar oversights will occur, if or when the dam and diversion is built? Will the USACE shrug their shoulders when waves pound the earthen dam to pieces in the “mild” North Dakota breezes we experience in the Red River Valley?
| Plaintiffs claim that up to three inches of rain fell on April 24, and, by April 27, a “significant rainfall event” was predicted for April 30. During that week, the NWS increased its rain forecast on April 27 to “up to 6.6 inches,” on April 30 to seven inches, and on May 1 to 8.6 inches, nearly twice the April average. |
COMMENTARY: The USACE encourages Moore Engineering to present insufficient data claiming the Wild Rice River basin does not contribute to peak flood events in Fargo. Odd, that the USACE could overlook a fundamental fact that water detained by the high risk dams on the Wild Rice and Red River stems would guarantee that peak floods would occur simultaneously if the proposed structure were to go operational.
It is equally odd that the USACE and Moore engineering argue that timing of peak events on the Wild Rice and Red may not statistically occur at the same time but need the occurrence to justify a need for the multi billion dollar boondoggle (a.k.a. the Fargo Moorhead Dam and FM Diversion).
The amount of water energy behind the earthen dam and levee’s being pounded by gale force winds is staggering and has not been quantified in any of the documentation made public. So has due care and diligence occurred in the planning process thus far?
The USACE has yet to present data that correlates rain events to elevation tables for any of the involved rivers they are attempting to harness. How much will 1 inch of rain raise the river channel?
| The Corps lowered the lake by about six inches on April 29, held it steady the next day and, on May 1, started increasing discharges, from 24,300 cubic feet per second at noon to 74,500 cfs by midnight—still “less than the storm-water runoff” entering the reservoir, according to the filing. |
COMMENTARY: Too eerily similar to Lake Darling, the Mouse River and Minot…, or the Missouri River basin from Rocky Mountains to the Mississippi.
| Missing in Action
The court filing also contends that the Corps’ Nashville district commander declared a flood emergency at 1 p.m. on May 1, but the water manager left his post 40 minutes later. By the time water management staff arrived at 7 p.m., the lake’s elevation had risen by more than a foot.
The NWS Ohio River Forecast Center repeatedly tried to reach the Corps’ Nashville office overnight on May 1-2, but no one was on duty until about 7:30 a.m., plaintiffs’ charge. |
COMMENTARY: Which would be easier…, having the USACE maintain a viable communications protocol and alert readiness for events that involve their creations or get mother nature to schedule events on the corps timetable?
The USACE has realized “billions” in revenue from tax-payers and their project designs affect “millions” of Americans everyday.
Somehow, the ability to clock out doesn’t seem justifiable given the value and security of human life. Then again, if you had sovereign immunity from litigation…, what would motivate accuracy in study data, design and communication with the public?
| The Corps, faced with a rapidly filling reservoir and continued heavy rain, said at 10 a.m. on May 2 that it could maintain 100,000 cfs discharges and keep the river at or below the 100-year floodplain.“Defendant was wrong,” the suit says.
The Corps increased discharges to 80,300 cfs at 10 a.m., to 123,600 cfs at 1 p.m., to 130,300 cfs at 2 p.m. and to “an unprecedented” 212,260 cfs at 6 p.m. Neither the Corps nor the NWS updated the river-stage forecast until 3:37 p.m., according to the suit. The river rose above the 45-ft “major flood” stage by 4 p.m. and crested at 51.86 ft on May 3. A.O. Smith plant managers, concerned about rising waters at their plant, tried to reach the Corps office at 5 a.m. on May 2 for a water-level forecast. They received no answer, the filing alleges. |
COMMENTARY: So how is it possible for the agency charged with gathering and disseminating information relating to the event as it unfolds — displays no responsible professional behavior in carrying out that task?
| As the river continued to rise, they implemented their 100-year flood plan, evacuating equipment and people. At the May 3 crest, the plant complex was flooded with five to 10 ft of water.
Information Not Made Public
Gaylord also claims it was monitoring river projections and, at 3 p.m. on May 2, learned from the Nashville Mayor’s Office of Emergency Management the river forecast—not disseminated to the public—was for four feet below its levee top. The river topped the levee between 11 p.m. and midnight. The hotel’s public areas, more than 100 guest rooms, exhibit halls, administrative offices, computers, laundry and powerhouse were under water. It was closed for six months. |
COMMENTARY: What would have happened to the Fort Calhoun Nuclear Power Station, north of Omaha, had vital water elevations been detained or withheld? Failure to disclose is negligence when public safety is at stake. Seriously, how hard is it to update a central website with vital information during an event?
| The Grand Ole Opry House had four feet of water over its stage.
In 1975, flooding of the former Opryland USA theme park resulted in the owners adding 2.5 ft to the levee on the nine-acre property. However, it did not act further when the Corps, over several years, suggested that it raise the levee to a 500-year flood level. However, Gaylord is now constructing a $12 million, 10-ft brick-and-concrete wall around the property that should protect against a 500-year flood. The wall is scheduled for completion by July 1. The wall does not affect the neighboring Opry Mills shopping mall, which is separately owned. Also inundated after the flood, the mall recently re-opened after rehabilitation that was delayed by an insurance claim settlement. |
COMMENTARY: Vital information will always be kept out of public hands as long as the USACE engages in its closed door meetings and when media is co-opted into a unilateral public relations machine.
Fact is…, if it affects someone, that “someone” has a right to know, especially when the result could end up being their demise.
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