HOUSTON (CN) — Houstonians whose homes were flooded when runoff from Tropical Storm Harvey backed up behind two dams built and managed by the Army Corps of Engineers urged a federal judge Wednesday to let their takings claims proceed.
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 United States faces 85 lawsuits in the Court of Federal Claims from homeowners and renters who say government officials knew that heavy rainfall captured by the dams would flood their homes, but did nothing to stop development in the area or warn them about the risk.
They say that when the Corps of Engineers built the dams it acquired land in the reservoirs expected to flood during a 100-year storm: property with a 1 percent chance of flooding in any given year.
But it designed the reservoirs to hold much more water than that, thus putting at risk the subdivisions, schools and businesses that were built behind the dams over the years.
Enter Tropical Storm Harvey, a 1,000-year event that dumped more than 51 inches of rain on parts of Houston when it stalled over the city last August.
During less severe storms, the Corps of Engineers focuses on protecting homes below the dams along Buffalo Bayou. So it lets storm water build up behind the dams and slowly releases it downstream.
But with Buffalo Bayou swollen to record levels by Harvey, flooding homes on its banks in the days during and after the storm, the Corps of Engineers stored 380,000 acre-feet of Harvey storm waters behind the dams for 10 days, which swamped homes with up to 5 feet of water, the plaintiffs say in their master amended complaint.
The flood pool was close to the dams’ maximum 410,000 acre-feet storage capacity. An acre-foot is enough water to cover one acre a foot deep: 325,853 gallons. In city planning, an acre-foot is estimated to be enough water to supply a typical suburban family home for a year.
At a hearing at the Houston federal courthouse Wednesday, Justice Department attorney Jacqueline Brown told Court of Federal Claims Judge Charles Lettow that homeowners cannot prove a Fifth Amendment takings claims because Harvey was an isolated event, not likely to happen again.
“Plaintiffs cannot state a claim for taking when flooding has not been substantial and frequent,” she said.
Brown said the homeowners should be applying for storm relief aid from federal agencies, not making their case in court.
“That plaintiffs cannot state a claim for taking does not mean the U.S. is unsympathetic to them and the more than 100,000 Houston residents who experienced flooding,” she said. “Congress and executive agencies have brought about billions of dollars in hurricane relief and that is the appropriate way for relief in the aftermath of this unprecedented storm.”
Reiterating statements she made in a Feb. 16 motion to dismiss, Brown said the government should not be held liable because by deciding to hold water behind the dams, the Corps of Engineers was trying to minimize harm in an emergency.
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