HOUSTON (CN) – The government is liable for flooding Houston homes with Hurricane Harvey runoff that backed up behind two dams, a federal judge ruled Tuesday, rejecting claims the risk was clearly laid out in public documents years before the storm hit.
The largest storm in the recorded history of the United States, Hurricane Harvey dumped an average of more than 33 inches of rain over four days in Houston in August 2017, with some parts of the city getting more than 50 inches, according to court records.
But long before Harvey, the Houston area had experienced its share of monster storms. In May 1929, downtown properties suffered $1.3 million in flood damage from a tempest that soaked the city with 12 inches of rain.
It rained for three days straight in December 1935, unleashing flooding that killed eight people and caused $2.2 million in property damage.
Realizing the potential for a more destructive storm, the U.S. Army Corps of Engineers built two earthen dams 20 miles west of downtown in the 1940s to control Buffalo Bayou, which cuts through the center of the city and empties into the Houston Ship Channel.
Barker and Addicks Dams straddle Interstate 10 and are massive: Barker spans more than 13 miles and Addicks a little more than 11 miles. They are usually empty as the Corps only holds water in them from heavy rains.
As Houston’s population boomed over the years, developers built subdivisions over the cow pastures and rice fields upstream of the dams. By August 2017, the area seemed like any other Houston suburb with the dams hidden in plain sight – in some places dam berms double as walking and bike trails.
“It’s not like some backwater shanty or a place on the beach on stilts. You go around and see Starbucks and gated communities,” attorney Daniel Charest said at a hearing in September. “I challenge anybody who claims they said, ‘I expect this will probably flood.’”
Charest, partner in the Dallas firm Burns Charest, is lead counsel for hundreds of property owners who sued the government after water pooled behind the dams and flooded their homes amid Harvey’s deluge.
Thirteen property owners were chosen as test cases for the group in a bellwether trial held in Houston in May to decide if they have valid Fifth Amendment takings claims and should be compensated by the government for their flood damage.
Flooding of the test property homes ranged from 6 feet to solely foundation damage, but even that small amount of water seeped into the home and ruined the floorboards.
Some owners testified about their harrowing evacuations. With stitches in his stomach and chest from a kidney surgery, Scott Holland testified that he fled his home on Aug. 28, 2017, as it took on 1.5 feet of water.
Holland moved out of Houston and into a small trailer where he was still living 21 months later, with no money to repair the uninhabitable home, he testified in May.
Other litigants testified that days after they evacuated, they paddled to their homes on kayaks to salvage what they could and were sickened by the putrid standing water that smelled of fecal matter and chemicals.
Kulwant Sidhu owns one of the test properties, a condo that took on more than 2 feet of water. The real estate investor and retired electrical engineer told Courthouse News that 12 of the 29 condos he owns in the area flooded. He pegged his damages at $500,000.
“Just the loss of rental value and repairs,” he said in May, adding that does not include the lost sale value for the condos because he will have to disclose the flooding to buyers.
The government argued that property owners were aware of the risk because the Corps of Engineers held dozens of public meetings where they warned residents that the reservoir pools could exceed government-owned land in extreme storms, and said the Corps also mailed postcards warning of the risk.
Justice Department attorneys also said the danger was disclosed in Federal Emergency Management Agency and U.S. Geological Survey maps and subdivision plats.
Asked if he was aware of the risk when he bought his condos, Sidhu said, “Not at all.”
He said he took out loans to buy some of the properties.
“There was nothing to suggest it was in a flood zone or else the lenders would always require you to have flood insurance before they give you a loan,” Sidhu said.
Federal Court Claims Judge Charles Lettow, a George W. Bush appointee, sided with the property owners Tuesday.
He found the owners could not be expected to understand data in the arcane government maps. The warnings in the subdivision plats were “miniscule” and “would take an uncommonly attentive eye to notice,” the judge wrote. He also said the Corps’ community meetings were not well attended, showing the agency did not do an adequate job publicizing them.
In its defense, the government argued that Harvey was an emergency that required the flooding of private land. But Lettow did not buy it.
“The invasion alleged here was by no means unexpected – the Corps knew that when a severe storm like Harvey came, flooding beyond the extent of government- owned land upstream would result, in light of the design of the dams and the plans for their operation,” the judge wrote.
The government is also facing a class action from property owners whose downstream homes were flooded when the Corps opened the dams to drain the reservoirs.
Charest, the attorney, said in a statement his upstream clients can now move for class certification and he is looking forward to a second trial to determine damages.
Asked for a response to the order, a Justice Department spokesman said, “We’re reviewing the ruling.”
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