Feds On Trial Over Flooding From Hurricane Harvey

In this Sept. 4, 2017 file photo, a car is submerged in a current of floodwater in the aftermath of Hurricane Harvey near the Addicks and Barker Reservoirs in Houston. (AP Photo/David J. Phillip, File)

HOUSTON (CN) – The Houston home Carl and Cynthia Miller bought in 1988 sits empty, stripped to the studs. The neighborhood was once inhabited by close-knit homeowners who watched out for each other’s kids. Hurricane Harvey washed out the kinship and brought in a tide of renters.

The Millers, parents of two adult children, were in a Houston federal courtroom Monday for a trial to determine if the federal government is liable for the 6 feet of sewage-laced water that flooded their home in August 2017 and sat for three weeks.

“The contents were completely wiped out. Everything we owned was on the curb and destroyed . . . We lost a lot of super valuable antiques that were passed down from generations. . . . And every picture, every video, everything I had of my children is gone,” Cynthia Miller said in an interview.

It’s a story shared by dozens of Houstonians who sued the government in the U.S. Court of Federal Claims after runoff from Harvey’s epic rains pooled behind two dams built and managed by the U.S. Army Corps of Engineers and flooded their homes.

But the Millers are only bystanders for the proceedings before U.S. Court of Federal Claims Judge Charles Lettow. Their prospects depend on parallel Fifth Amendment takings claims made by owners of 13 homes in a bellwether, or test, case.

If Lettow finds the government liable after the 10-day bench trial, he’ll decide whether to certify a class action and, eventually, put a price on the homeowners’ damages.

The government’s defense hinges in part on its argument that Harvey was an isolated event. Its attorneys say it’s unlikely another storm will dump more than 30 inches of rain in the dams’ watersheds within 72 hours.

“Harvey was the largest storm to ever hit the U.S. in recorded history,” Justice Department attorney William Shapiro said in opening statements Monday.

The Barker and Addicks dams straddle Interstate 10, 20 miles west of downtown Houston. The Corps of Engineers built them in the 1940s to hold back the city’s main waterway, Buffalo Bayou.

The homeowners’ attorney Daniel Charest of the Dallas firm Burns Charest said in openings that the Corps of Engineers concluded in studies in 1973, 1979, 1980, 1992 and 1995 that heavy rainfall captured by the dams would flood homes, but did nothing to stop development in the area or warn homeowners about the risk.

“These areas upstream of the dams are developing quickly and if properties aren’t purchased fast, the opportunity will be lost forever,” Charest said, reading from a Corps of Engineers’ report from the 1970s.

The earthen dam embankments are massive: Barker spans more than 13 miles and Addicks a little over 11 miles. In some areas, the structures blend into the landscape as hilltop bike trails.

For the Corps of Engineers during Hurricane Harvey, Charest said, it was a matter of mitigating risk for the largest number of people.

A large outflow from the dams, swelling a Buffalo Bayou already flowing at record levels from street runoff amid Harvey, could have devastated downtown Houston and the chemical plants and refineries lining the Houston Ship Channel further downstream.

Shapiro said when the dams were built in the 1940s, the Corps of Engineers bought enough land to contain the pools from the largest storm, in 1935, on record.

He blamed the plaintiff homeowners for not doing their due diligence. He said there was enough publicly available information when they bought their homes that they knew, or could have known, about the flood risk.

But Cynthia Miller said when she and her husband moved to the neighborhood in 1988, they had no inkling they were at risk because neither their realtor nor the seller’s realtor, said anything about flood insurance.

“Actually there weren’t any records of flooding or flooding possibilities because realtors are required to notify you if you need flood insurance for the property. The family that we bought the house from had never had any flooding issues. In the 30 years we lived in that house, we never flooded,” she said.

Shapiro also downplayed the damage to the 13 bellwether homes in his opening statements. He said seven of the homes had less than 1 foot of floodwater.

“Most have been repaired,” he added.

Judge Lettow, whose home courtroom is in Washington, D.C., has yet to see the 13 homes. He’ll be visiting them in a bus trip this week, accompanied by attorneys for the plaintiffs and government.

Cynthia Miller laughed loudly when asked outside the courtroom about Shapiro’s claim that flood damage to homes in the area was not severe.

She said their home’s value dropped from $195,000 to $71,000. They have found a buyer and are renting a house north of their old one.

“Much further north, out of the flood zone,” she said.

Talking about Shapiro, she said, “I would love for the guy who said the houses can be fixed, I would love for him to walk into my house with the 6, 7 inches of fecal matter, the smell that was intolerable, the windows that had to be open and the respirators that had to be worn just to enter the house and then say it wasn’t devastating.”

Her husband said he gets the cost-benefit analysis informing the Corps of Engineers’ decision not to release water from the dams more quickly.

“I understand that what they did was for the greater good. But we need to be compensated for this,” Carl Miller said.

The government is also facing taking claims from hundreds of flooded homeowners who live downstream from the dams.

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