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Trial begins to quantify losses of Houstonians flooded by government dams

Hurricane season 2022 comes as some Houston residents are still seeking compensation for the Army Corps of Engineers’ handling of runoff from Hurricane Harvey in 2017.

HOUSTON (CN) — Nearly five years after Hurricane Harvey inundated Houston, a trial started Tuesday to determine how much the government must pay homeowners for flood damage caused by the Army Corps of Engineers’ operation of two dams during the storm.

U.S. Court of Federal Claims Judge Charles Lettow ruled in December 2019 the Corps of Engineers is liable to homeowners who live upstream of the Addicks and Barker dams for flooding precipitated by Harvey’s record-breaking deluge in August 2017.

Lettow found the government liable under the Fifth Amendment for taking a flowage easement on 13 properties that served as bellwether, or test, cases for the thousands of residents who sued after Harvey runoff backed up behind the dams and flooded their homes.

The Corps built the 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, after storms in the 1920s and 1930s caused millions of dollars of flood damage to buildings in downtown Houston and eight people died.

As Houston’s population boomed over the years, developers built subdivisions over the cow pastures and rice fields upstream of the dams. By 2017, the area seemed like any other Houston suburb with the dams hidden in plain sight. The reservoirs are usually empty as the Corps only holds water in them from heavy rains and within them are several parks and sports fields.

Lettow determined the Army Corps of Engineers had not adequately warned residents the reservoir pools could exceed government-owned land in extreme storms.

For the damages phase, Lettow selected six properties — five single-family homes and a condominium — as bellwethers to hash out how much damages each litigant should get.

Plaintiffs’ lead counsel Daniel Charest, partner in the Dallas firm Burns Charest, said they are seeking 80 to 100% of the properties’ appraised value before Harvey. “So if your house was worth $500,000 before, we say the taking was 80% to 100% of that value,” he said.

The government could potentially be saddled with flowage easement payments running into the billions, which would grant it the right to temporarily store water on private property within the Barker and Addicks reservoirs.

“If you look at the Corps’ own estimates, it values the easement at $4 to $6 billion for the upstream area,” Charest said Tuesday during a break in the proceedings.

The plaintiffs’ first witness was Elizabeth Burnham. She testified she moved into a home in the area in December 2014 with her daughter and son, choosing it because it was affordable, close to her workplace and zoned for Katy Independent School District, whose schools are known as some of the best in Greater Houston.

Burnham moved in thinking it would be her “forever home,” she said on the witness stand.

But after the dam-induced flooding from Harvey submerged the residence for seven days, she tore out its sheetrock and insulation. And she moved into a hotel, then an apartment, with aid from the Federal Emergency Management Agency.

But she decided to sell the home as is for $80,000, $105,000 less than its appraised value prior to Harvey. “I didn’t have funds to put it in a habitable condition. And it wasn’t safe. It had been broken into several times,” she testified.

Though she did buy a new home in February 2018, it was not zoned for Katy ISD.

“My daughter was a junior in high school. She had to change schools and be ripped away from her friends,” Burnham testified.

All told, Burnham said, the Corps’ decision to let water back up behind the dams instead of quickly releasing it downstream displaced her, leaving her without a permanent residence for more than seven months.

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She also detailed how she chose what items lost to the flooding to put on a personal property inventory provided for the litigation. She filled it in, she said, by looking at photos of her home’s rooms and going by memory. “For replacement cost, I went online to see what the item sold for,” she added.

On cross-examination, a government attorney noted Burnham had included some of her son’s things that had been in his second-floor bedroom and not touched by floodwaters.

Burnham explained she listed them because they had mold damage. “When we reentered the house there was mold growing out of my daughter’s bedroom vent and in other areas,” she said.

In opening statements, the government focused on the fact that the disaster has not put a damper on the area’s real estate market: Homes are still being bought and sold there, regardless of awareness of the Corps of Engineers’ easement.

Plaintiffs’ counsel meanwhile noted that monster storms like Harvey are expected to become more and more frequent from climate change, and said the government will need a larger presence enforcing its flowage easement, dictating what additions homeowners can make to their properties and even if they can raise them to reduce their risk of flooding.

Charest, lead plaintiffs’ attorney, tried to pin down Paula Johnson-Muic, who serves as the Corps of Engineers director of real estate, a civilian position, on just how exactly the agency would enforce its flowage easement.

He asked Johnson-Muic if the Corps would allow a homeowner to build a berm around their house, which would eliminate its capacity to store floodwaters impounded by the dams, or if that would violate its easement.

Her answers frustrated him. “The Corps does not have a position on that today. It would have to be analyzed in accord with the facts at the time. … I can’t answer that without doing consulting with other experts within the Corps,” she replied.

Prodded by a government attorney, Johnson-Muic testified the Corps of Engineers has two standard flowage easements: One is to permanently inundate a property, the other is to occasionally flood it. “They usually prohibit human habitation. We usually acquire the improvements with them, which are then removed,” she said.

Judge Lettow speculated the unusual nature of the Barker and Addicks flowage easement, which pertains to an estimated 10,000 to 12,000 homes, was tripping Johnson-Muic up.

“This is an atypical easement. So there’s a question about what the easement actually does and Ms. Johnson is struggling with it,” the George W. Bush appointee said.

The lack of clarity about the easement is understandable.

While Lettow decided the Corps of Engineers had taken a flowage easement on the area’s homes, its actual wording has not yet been determined.

Its language will be worked out in the litigation and then recorded in property rolls for the affected tracts.

The trial is set to go for about two weeks with no closing arguments. Those are expected to be scheduled after a few months of post-trial briefing.

Though the Corps of Engineers was found liable for flooding upstream of the dams, it fared better against a class action brought by thousands of people who live downstream of them.

To avoid flooding even more structures upstream as Harvey dumped rain, the Corps of Engineers opened the dams’ floodgates full bore, something it had never done since building the dams in the 1940s.

The release flooded homes along Buffalo Bayou that had never flooded before. But U.S. Court of Federal Claims Judge Loren Smith dismissed the case in February 2020, finding there is no “right to perfect flood control” under federal or Texas law.

The downstream litigants have appealed Smith’s order to the U.S. Court of Appeals for the Federal Circuit, which heard oral arguments in January.

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