Failure to Protect: Decades of dike’s neglect leave residents with unanswered questions

KELLY, NC (WECT) - Howard Buie thought he was safe.

More than 40 miles separated Buie’s home from the coast when Hurricane Florence came onshore on Friday, Sept. 14.

Kelly, an unincorporated community nestled along Highway 53 between the Cape Fear River and the Bladen County-Pender County line, is in a flood zone but has supposedly been protected by a dike system for more than 100 years.

On Sept. 19, five days after Florence made landfall, the White Oak Dike breached in half a dozen places and the swelling Cape Fear River poured into the small, rural community.

“I’m watching a football game and all of a sudden three or four military vehicles and about 30 or 40 guys from the military drove up and told me I had to get out of here it’s going to flood 8 foot deep,” Buie said.

Buie was one of the 340 Kelly residents who were evacuated by the United States Coast Guard and volunteers in the two days following the dike’s failure. Buie was evacuated by road, as military vehicles were among the few able to drive over a flooded Highway 53, but 111 people had to be air-lifted to safety.

When they returned, many residents found the homes they left behind destroyed, or nearly so, thanks to the floodwater.

Michelle and Dale Fisher and their 14-year-old daughter were among them.

The fishers evacuated long before the storm arrived and floodwaters rose, but were able to see their home from a small airplane — a view that showed their 20-year investment engulfed by the Cape Fear River.

“The most difficult thing for me was we had about two more years and this would have been paid for,” Dale Fisher said. “We were content with staying in it for the rest of our lives and now we’ve got to start over again.”

The Fishers’ home was not in the flood plain, so they did not carry flood insurance to cover the damage from the flooding. They are applying for assistance from FEMA, but Dale Fisher said the thought of taking out a new 20- or 30-year mortgage is worse than losing the home and most of their belongings.

Since Florence, Bladen County officials have had to reckon with the experiences of Buie and the Fishers and hundreds of others.

Five months after the storm, questions remain in why the dike failed — and who is responsible.

The unincorporated communities of Kelly and Frenches Creek have dealt with floodwaters for as long as people have lived in the river basin.

Historical accounts from the community say the area flooded at least eight times between 1885 and 1945. Around 1909, an investigation was launched into constructing a “Cape Fear Levee” parallel to the then-proposed Lyon Swamp Canal. That small levee, less than half the size of the White Oak Dike that exists today, was built by the United States Army Corps of Engineers (USACE) in 1911. The dike was eventually extended further all the way into Pender County.

In 1945, during a record-setting flood, the dike failed in 11 places, and was repaired by the USACE.

The White Oak Dike reached its final phase in 1961, when it was raised two feet higher and extended to its current 14.5-mile length.

The 1960s were a turning point for the dike — but also mark the beginning of decades of miscommunication, with federal records and in-person accounts diverging on who was responsible for the dike’s upkeep, and ultimately its deterioration.

From 1962 to 1999, the condition of the dike was generally “good” as far as the USACE saw things.

During that time, inspection reports were regularly turned in to the USACE, with only minimal issues such as 4-wheel vehicle traffic and beaver activity noted.

In 2001, however, things changed.

According to documents from the USACE, no inspection reports were filed with the corps in 2000 or 2001, so in September of 2001, the corps decided to perform an inspection itself.

That inspection showed the dike had several significant issues and received three “unsatisfactory” scores for poor vegetation control, poor bank conditions and at least one breach near Kelly Cove Road.

Federal regulations dictate that if a project like the dike receives an “unsatisfactory” score in any category, the entire project is rated as “unacceptable,” and is declared inactive as a federal project.

Projects listed as inactive are not eligible for consideration for assistance from the USACE to fix the dike in the event of a flood or coastal storm.

While there were only two years missed, Mitch Hall, chief of the Geotechnical and Dam Safety Section with the USACE said the decline of the dam likely started earlier.

“As far as we know, it was starting to go into disrepair back in the 90s,” Hall said.

When a project falls into inactive status, there is a protocol for bringing it back online. First, the USACE meets with the project sponsor to explain the severity of the situation. Then, the governor and other state agencies are notified and asked to help, and FEMA is notified of the condition of the project. Finally, if the sponsor does not work to improve the project, the corps will remove its eligibility for rehabilitation.

USACE does have the ability to pursue legal action to force repairs. However, the White Oak Dike is described in USACE documents as an “exceptional undertaking and should be initiated only after a thorough review of all pertinent considerations.”

That information was all relayed to the entity the USACE has listed as the White Oak Dike’s sponsor: the Lyon Swamp Drainage and Levee District.

According to USACE documents, the Lyon Swamp committee assumed sponsorship of the dike and agreed to maintain it on April 28, 1960. Over the following 58 years, documents list the committee as the sponsor.

In a letter dated Oct. 18, 2001 to Nelson Squires, Dale Norris, Donald Parker, Richard Smith and Glenn Porter, the corps detailed the inspection completed in September of that year and informed the committee there should be a meeting to discuss the implications.

On Nov. 21, 2001, that meeting was held in Kelly and attended by Squires, Smith, Porter, Norris, Catherine Mitchell, Eddie Ridenhour, William Bramble, Gary Bramble, Donald Kelly, Jack Squires, Sam Cromartie, Donald Parker, Jobe Metts, Sam Potter and McNeil Kelly.

At that meeting, the severity of the situation was described, as were options to bring the dike back into active status and eligible for federal repairs.

The recommendations that came out of the meeting were to define what areas the Lyon Swamp committee could address, and to get approval from the USACE district engineer to bring them back into the program once repairs were made.

A letter to then-Congressman Mike McIntyre, informing him of the meeting, and explained the committee’s intention to correct the deficiencies so they’d be eligible for federal assistance again, but that it wouldn’t be easy.

“Costs for the deferred maintenance is their greatest challenge,” the letter reads.

Four months later, Nelson Squires — listed as the chairman of the Lyon Swamp district committee — received a letter from Ronald Stirrat at the USACE detailing the proposed plan of action to bring the dike back into compliance.

The plan was to divide the 14.5 mile dike into four major sections, and as each was repaired, the Wilmington District of the USACE would inspect and determine if it could be returned to active status.

Stirrat did note the limitations.

“I want to reiterate that no federal funding may be expended for maintenance procedures. However, Wilmington District may provide technical assistance, if required,” his letter reads.

It is unclear if anything was done to address the four areas in the eight years that followed that correspondence. What is clear is that by 2010, the condition of the dike had only worsened.

During April 14-15, 2010, the USACE conducted a “periodic inspection” of the White Oak Dike by walking the entire 14.5 mile length.

“During the inspection, some significant deficiencies were observed,” reads a declassified executive summary obtained by WECT.

Noted in that inspection were several major issues:

• Numerous mature trees growing too close or even up through the dike structure
• Areas where 12 to 20 feet of the dike were missing, breaches attributed at the time to logging operations on both sides of the dike
• Buildings, power-poles and fences located on the levee or within the 15-foot buffer zone
• Missing culvert pipes
• Deteriorated pipes and headwalls
• Vehicle tracks and other causes of erosion

The inspection noted it was unclear if the specific issues were scored in 2001, but in any case, would receive an “unsatisfactory” rating.

The following year, 2011, a public meeting was held on April 29. Among the attendees were several representatives from the USACE, Bladen County officials and members of the community.

Also in attendance was Richard Smith.

Smith had served on the Lyon Swamp Drainage committee, and in 1997 was the main contact for the group, but he eventually rolled off and was a part of a different committee.

Smith reportedly “inquired about the possibility of the Corps providing funding to assist in rehabilitation of the levee project.”

In 2012, Smith received a response from Gregory Williams with USACE.

The letter lists the same explanation sent to Nelson Squires in 2002 that because the dike was an inactive project, there is no direct source of federal funding available, though there might be avenues to get the dike back in active status quickly if repairs were made.

However, Williams was clear in his correspondence to Smith that the USACE had serious doubts about the dike’s future.

“We remain skeptical that the White Oak Flood Control Project is not in such a state of disrepair that reconstruction and repair is practical or affordable to the sponsor,” Williams’ letter reads.

As recently as 2017, when the Corps introduced the White Oak Flood Damage Reduction Project, Lyon Swamp Drainage and Levee District is considered the sponsor of the inactive dike, and the USACE maintains this timeline of events.

There’s only one problem — current representatives from the Lyon Swamp district say they have had nothing to do with the White Oak Dike in more than 20 years.

In the heart of what was once referred to as “The Flats” and just a few miles from the river, Kelly General Store sits across Highway 53 from the Kelly post office.

The small, unassuming mercantile sees a steady stream of patrons, but the two mis-matched tables customers use to enjoy a lunchtime hot dog are at the heart of the White Oak Dike issue.

Charles Russ, owner and operator of the store, has hosted meetings of the Kelly Water Dike and Drainage District committee in his store more than once.

Stored alongside the products and memorabilia from Kelly’s past are several documents: a map depicting the White Oak Dike in its earliest form, bank statements reflecting the funds available to the Kelly Dike District and copies of a 1961 legislative action forming the committee.

Russ is a current member of the committee and said there is indeed significant confusion over who has been in charge over the last 58 years.

On April 18, 1961, the North Carolina General Assembly passed a bill that allowed Bladen County to form a “Kelly Dike District” defined by the county’s portion of the land protected by the White Oak Dike. It also allowed Bladen County to levy a tax in order to pay for the upkeep of the dike.

The tax could be as little as $0.01 per $100 valuation on a property, or up to $0.10 per $100.

Records show the county opted for the $0.01 and collected approximately $700 per year from residents in the district between 1965 to 1968.

No one, including current county officials, knows why the tax was stopped.

Russ said he has hired a private attorney to research the tax but has also come up empty handed.

“It shouldn’t have been able to be stopped without somebody stopping it,” Russ said.

Two months before the bill was passed forming the new Kelly Dike District and setting out how it would work, Lyon Swamp representatives signed a legal resolution, again agreeing to be the sponsor of the dike.

There was never any indication to the USACE that the Kelly committee would be taking over.

“Let’s put it this way, we don’t have any current documentation indicating the Kelly Dike District assumed sponsorship of the White Oak project,” Mitch Hall said.

Further complicating matters, the Kelly Dike District appears to have been called a handful of things over the years.

Bank statements from Nov. 2018 for the account linked to the tax and the committee list “Frenches Creek Township DBA (doing business as) Dike District” as the holder of the account. Statements from 1996 say “Kelly Dike District.”

Russ says the Frenches Creek Dike Commission and the Kelly Water Dike and Drainage District are the same thing — but that Bladen County has the name wrong.

When asked to clarify how the confusion could have persisted for more than half a century, the USACE has not responded.

Russ, however, has a theory.

He says back in 1909, when flood control was proposed for the Cape Fear River and Black River basin, it was all going to be one system.

“The older people, they told me when they done it all, the Lyon Swamp, the levee and the canals in between it, it was all one big plan,” Russ said.

But disputes with property owners eventually stymied that plan, so the efforts split between the Kelly and Frenches Creek side and the Lyon Swamp side.

However, Russ said, in many cases the same people served on both committees — despite county bylaws that limit the number of official boards or committees someone can serve on.

“It’s one of them things, around here, if you want to be on something they’ll put you on it. Most of the ones that serve, serve on two or three different things,” he said.

So, between 1961 and 1997, Russ said, anything that needed to be done to the White Oak Dike was done under Lyon Swamp.

“Those guys just grandfathered it in,” he said. “When we’d have a disaster like we’ve had … the people that were on Lyon Swamp Drainage would just umbrella it in.”

But as the members of the committee retired — or died — the new committee members determined the White Oak Dike maintenance was not in the jurisdiction of the Lyon Swamp committee.

“As they’ve died out, the younger people that’s got in it, have said, ‘Well we’re not going to do that anymore. That’s not ours,’” Russ said.

The problem, he said, is no one ever told the USACE.

For 58 years, the Bladen County Commission has appointed new members to the Kelly Water Dike and Drainage District committee.

County Manager Greg Martin said like any committee or board appointment, a public notice is posted announcing the vacancy, and interested applicants are sent a packet of information and instructions to apply.

Appointees are then nominated and voted on during a public commission meeting.

The committee, Martin said, is a “subdivision of the state,” and is viewed similarly to the county in that regard.

It has no allocation from the county’s budget. Bank statements show the committee has $35,203 as of Nov. 2018.

While the committee should be subject to North Carolina public meetings law, Russ said in his tenure — and he knows in the decades preceding it — meetings have been mostly informal.

“Looking back at it now, they had a meeting once or twice a year, but they really just did what needed to be done,” Russ said.

He said the only expenditures the committee has made over the last 20 or so years have been to fix a few gates and pipes along the dike.

Russ said he doesn’t have many records of the committee’s activity over the last few years.

County officials say that until Hurricane Florence, the issue of the dike simply fell off the county’s radar.

Despite appointing new members to the Kelly Dike committee annually and correspondence from the Corps to members of the community over the years, current county commissioners indicated they knew little about the dike at an Oct. 15, 2018 special meeting about Florence recovery.

Martin said over the last few months, the county has been evaluating its options, but has also been investigating how things got this far.

Those efforts, however, ring hollow in the ears of Kelly residents like Sylvia Davis, who spoke at the public meeting, saying the community deserved to know what was going on long before Florence’s floodwaters arrived.

“Everybody in Kelly should have been notified that the Corps of Engineers was giving this property up, and it’s up to you individuals to keep it up,” Davis told the commission.

“Somebody has to take responsibility for what that dike did.”

Buie said he has asked the county himself how the dike arrived at its current state, allowing this disaster to happen.

“Nobody can give you an answer because nobody really knows,” Buie said. “They said there was ‘x’ amount of dollars left in the account. Then where has it gone? The county commissioners — I’ve called several of them — and they won’t return my call. I’ve called them four or five times,” Buie said.

Dale Fisher said he and his family are equally frustrated by the lack of answers.

“Nobody has claimed responsibility as far as maintaining the dike and fixing it and all that comes along with that,” he said. “We don’t know whose responsible.”

As hurricane season once again approaches, Kelly residents are left to wonder: Who is responsible for fixing the dike? Where will that money come from?

For the Fishers, and the hundreds of other Kelly residents displaced, the question remains of if they should even return.

“It’s home to a lot of people and we just want to stay home we want to come back home,” Dale Fisher said, “but it’s a scary thought when you don’t know what’s going to happen with that dike.”

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