Judge hears arguments about levee blast plan

Published: Apr. 28, 2011 at 7:47 AM CDT|Updated: Apr. 29, 2011 at 12:03 PM CDT
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Koster's legal team argued the Corps' action would violate Missouri's Clean Water Act and cause...
Koster's legal team argued the Corps' action would violate Missouri's Clean Water Act and cause "certain damage" to the state and its people.
I'm hoping the judge will be fair and do the right thing. After all, lives, that's the key...
I'm hoping the judge will be fair and do the right thing. After all, lives, that's the key point. Lives are at stake."
Judge Stephen Limbaugh took the motion under advisement just after 7 p.m. Thursday, and Koster...
Judge Stephen Limbaugh took the motion under advisement just after 7 p.m. Thursday, and Koster says the judge has a tough call to make.

MISSISSIPPI COUNTY, MO (KFVS) - The decision is in the hands of a federal judge who heard arguments over a plan to intentionally break a Mississippi River levee.

Judge Stephen Limbaugh Jr. heard arguments from attorneys for Missouri and the Army Corps of Engineers Thursday on a corps proposal to blow a 2-mile-wide hole through the Birds Point levee in southeast Missouri. The corps says breaking the levee would ease waters rising around the upstream town of Cairo, Ill., near the confluence of the swollen Mississippi and Ohio rivers.

Missouri says the rush of water would ruin prime farmland, flood about 90 homes and displace 200 people.

Near the beginning of the hearing, Limbaugh said he would expedite the case given the circumstances.

Koster's legal team argued the Corps' action would violate Missouri's Clean Water Act and cause "certain damage" to the state and its people.

A Corps economist testified a levee failure here in Cairo could result in $265 million in damage, although the Corps acknowledged it's still holding.

Judge Stephen Limbaugh took the motion under advisement just after 7 p.m. Thursday, and Koster says the judge has a tough call to make.

"It's a hard set of facts and there are a lot of interests that have to be weighed on both sides of the state line and throughout the federal justice system, said Koster.  I think the judge took in the information.  I think he's got a very difficult decision that he has to make overnight."

For its part, Corps lawyers countered they have "unreviewable discretion" when it comes to implementing the floodway plan that "could" result in the blasting of that levee.

They also stressed the blasting option does not come into play unless and until the river overtops the levee at its lowest points, or 60.5 feet.

Federal Judge Stephen Limbaugh told the court he's not sure if he even has the authority to rule on the motion under current case law.

Attorney General Koster expects the ruling sometime tomorrow.

During the hearing, Corps officials testified about the flooding dangers here in Cairo and at other points along the lower Mississippi levee system, including Hickman and Paducah in Kentucky.

Former Cairo Mayor James Wilson joined current Mayor Judson Childs in the courtroom this afternoon. Mayor Childs sat in on the hearing and says he's still concerned about how the court case will play out.

"It seems like it's a battle of words and things like that, Childs.  I'm hoping the judge will be fair and do the right thing.  After all, lives, that's the key point.  Lives are at stake."

Missouri Attorney General is trying to get a restraining order to stop the plan to intentionally break a levee in Mississippi County.

Koster's office says the "decision would irreparably harm state of Missouri."

Barges with explosives are stationed at Hickman Harbor. A decision to move barges to floodway will be delayed until tomorrow (Friday). It would take six hours to get them there.

A Corps economist says intentional breach would cause $314 million in damage to Missouri, versus $265 million just to Cairo if the levee there fails.

Lawyers for Kentucky are calling for the U.S. Army Corps of Engineers to detonate a Missouri floodwall to prevent catastrophic flooding in the city of Hickman. The Corps says federal law gives them "unreviewable discretion" to make this decision to protect many states.

Judge Stephen Limbaugh said this needed to be done Thursday afternoon because "time is of the essence."

Deputy Director of Missouri DNR Davis Minton says the Corps told him they would blast a two mile hole at Birds Point resulting in a "15 foot wall of water" to enter the floodplain.

The Corps wants to breach the front line levee, not the higher set back or main line levee that backs it up.

Mississippi County Sheriff's Deputy Janice McCameron says phase one of the Birds Point spillway was activated at 1 p.m. on Wednesday.

Phase one includes local deputies and members of the National Guard going door to door to homes in the spillway and telling them "to be prepared to evacuate."

McCameron said residents were told to have their plans together to get out of their homes quickly but there has not been a mandatory evacuation ordered.

Some people in Mississippi County are being told they have to evacuate by Sheriff Keith Moore.

The sheriff says folks who live in the spillway of Mississippi County have been ordered to evacuate as part of phase one of the county's evacuation plan.

That includes going door to door notifying people of the evacuation order.

Sheriff Moore says people who live in the Pinhook, Dorena and Windyville areas are affected.

These areas will be flooded regardless of the levee.

Wednesday the Mississippi River Commission, the Army Corps of Engineers, Representative Jo Ann Emerson, and the public all met in East Prairie to discuss that very topic.

Cairo Mayor Judson Childs says his town is on the verge of being the next 9th ward of New Orleans if the Corp of Engineers fails to open the Birds Point Floodway South of Cairo.

"I think once you start comparing lives with land, I think it's a darn shame," said Mayor Childs. "I'm terribly upset about it and I don't care who knows it."

Childs and a former mayor of Cairo were in Cape Girardeau Thursday at the federal courthouse.

Illinois Attorney General Lisa Madigan moved to intervene in a lawsuit brought by the state of Missouri that attempts to stop the Army Corps of Engineers from blowing the levee.

"Any delay in the Army Corps' operation plan will put the residents of Cairo in the direct path of almost certain disaster," Attorney General Madigan said in a press release Thursday. "I am intervening in this case so that the people of Southern Illinois are fairly represented and given a voice in this critical decision. It is imperative that the Corps be allowed to do everything it can to protect the people who are at risk of losing their homes, or even worse, their lives."

Madigan also filed a response opposing Missouri's request for a temporary restraining order that would prevent the Corps from implementing its Birds Point-New Madrid Floodway Operations Plan.

Illinois Gov. Pat Quinn is scheduled to be in Marion, Illinois Thursday afternoon.

Koster says in a news release that he and the Missouri Department of Natural Resources filed a federal lawsuit Tuesday asking a judge to stop the corps from intentionally breaching the levee at Birds Point in Mississippi County.

Major General Michael Walsh says at this time, if the water level gets high enough, there really isn't another option, but breach the levee according to the flood plan.

He says it's not something he wants to do, but his main concern is public safety.

Walsh says Wednesday the gauge in Cairo reached 58.27. He says when it reaches 59 feet, everyone in the spillway must evacuate. And that has people concerned.

That final step does not become an option until the river level at Cairo reaches 61 feet.

According to Emerson's office, there is also a provision in the plan to "allow the natural overtopping of the upper fuse plug section" prior to making a decision on breaching the levee.

Phase two of the plan will include local authorities and guard going door to door getting people out of their homes. McCameron said if this happens, people will be removed from their homes and not allowed to stay; but once again, this has not happened yet.

According to the sheriff's department, no matter what happens to the levee, the majority of the homes in the spillway will be dealing with high water.

The sheriff's department said approximately 300 people living in the spillway and 100 homes will be affected. The spillway covers 331,000 acres.  Missouri Attorney General Koster was trying to secure compensation for the farmers whose land would be effected.

Phase two would include going door to door with the military and giving people a set amount of time to leave.

If the Corps decides enact the plan to blow up the levee, they would detonate the northern inflow fuse plug. Twenty-four hours later, they would detonate the two southern outflow fuse plugs around the New Madrid area.

Colonel Vernie Reichling, commander of the Memphis District of the U.S. Army Corps of Engineers was in Sikeston today to brief reporters about the latest status on the floodway plan.

He says the Corps at this point has only been given authorization to prepare the three sites along the floodway for possible detonation.

He says it is not something the Corps wants to do, but will if necessary. Reichling says he is aware of the ongoing legal battle, but is not letting it affect his current duties.

Bill and Deborah Byrne of Charleston own 550 acres of land in the floodway. They don't believe blowing the levees would do any good.

They don't want to see anyone on either side of the river affected.

Deborah Byrne says all she can do at this point is pray.

"I am trusting God that the skies are clear, and the river will go down," said Deborah Byrne.

Copyright 2011 KFVS. All rights reserved.  The Associated Press contributed to this report.