Testimony Wraps in Trial Over Hurricane Harvey Flooding

Two residents leave a flooded home on Sept. 4, 2017, in the aftermath of Hurricane Harvey, near the Addicks and Barker dams in Houston. (AP Photo/David J. Phillip)

HOUSTON (CN) – For 13 years Eleonora Slovokhotova knew nothing of the danger lurking in her suburban Houston neighborhood, which she describes as “a wonderful area, golf courses and happy smiling faces.” The intruder stole softly into living rooms one night in August 2017 after the U.S. Army Corps of Engineers closed the gates on two dams amid historic flooding.

Slovokhotova, a realtor and property manager, is one of dozens of homeowners who have brought Fifth Amendment inverse condemnation claims against the federal government in the U.S. Court of Federal Claims over flood damage from Hurricane Harvey.

The homeowners say the government must compensate them for the Corps of Engineers’ decision to close the floodgates on the Barker and Addicks Dams, which straddle Interstate 10 about 20 miles west of downtown Houston and control the flow of Buffalo Bayou, to save properties downstream and allow the impounded water to back up into their homes.

In a two-week bench trial in Houston federal court, Senior U.S. Judge Charles F. Lettow heard testimony from an Corps of Engineers official who said the agency, which built the dams in the 1940s, mailed postcards to area residents and held numerous public meetings in which they told people to buy flood insurance because they were living within dry reservoirs, designed to flood amid heavy rains.

The property owners say 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% 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.

Friday was the last day of testimony for this phase of the trial. Attorneys from the Justice Department, which is representing the Corps of Engineers, and the homeowners’ attorneys will then file briefs and reconvene in Houston on Sept. 13 for closing arguments.

Sitting on a bench in a hallway outside the courtroom Friday, Slovokhotova said she was appalled when she heard the Corps of Engineer official testify residents were warned.

Slovokhotova, a single mom of a 12-year-old son, said she owns three rental homes in the Cinco Ranch subdivision in the city of Katy, a western Houston suburb known for its quality public schools.

Each of her rental homes took on water that sat for two weeks. She said one flooded 4 to 5 feet, another 3 feet and the last 2 feet.

“I’ve lived here for 15 years and worked in real estate and my rentals were without flood insurance because it was an unimaginable situation. Banks and insurers didn’t know. Otherwise we would have been required to buy flood insurance,” she said.

She pegs her damages at $500,000 to $1 million. But she said judging from what New Orleans’ residents got from suing the government after Hurricane Katrina flooded their homes in 2005, she has low expectations for any recovery. 

“No matter what happens there are going to be appeals. From what I hear from Katrina, they were in litigation for 10 years and got $100,” she said.

Kulwant Sidhu is one of 13 property owners selected from plaintiffs who live upstream of the dams as “test” cases to determine if the government is liable.

Sidhu, a real estate investor and retired electrical engineer, told Courthouse News on Thursday that like Slovokhotova, he had no idea about the risk before Harvey flooded 12 of his condos.

“We took out loans on some properties and as you know lenders do appraisals,” he said. “They also ran reports. 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. They will not give you a loan.”

Sidhu is more optimistic about the litigation than Slovokhotova. After watching most of the trial, he said he feels like the plaintiffs have a good chance of winning.

He repeatedly scoffed Thursday at the testimony of one of the government’s hired experts, Robert Nairn, an engineer who created flood models for the upstream flooding. 

Nairn testified his analysis showed if the dams’ gates had been kept fully open during Harvey, five of the test properties would have flooded, and three of them would have taken on water even if the dams had never been built.

His claims back one of the government’s main defense arguments: That flooding is inevitable from a storm as large as Harvey, which it calls “the greatest single rainfall event in United States history.”

But Sidhu said he deserves to be compensated because without the dams his condos would have been in the clear.

“They keep saying no dam can eliminate the risk of flooding,” he said. “It’s probably true. I mean it could still happen. But no dam should also increase the risk of flooding to those properties that did not flood before.”

What scares Slovokhotova, she said, is the Corps of Engineers has stated the dams worked exactly as they were designed to during Harvey.

“I don’t feel secure anymore living in Katy. I don’t see a future here because of Harvey,” she said. She plans to move but does not know where yet, only “away from Houston.”

“I completely lost trust in government. … In another event like Harvey they plan to flood the area again,” she said.

The litigation has been divided into upstream and downstream plaintiffs, as hundreds of property owners who live and own businesses downstream of the dams have also sued the government over Harvey flooding. A trial for those cases has not yet been scheduled.

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