HOUSTON (CN) – Is it inevitable that another massive storm like Hurricane Harvey will bring disastrous flooding to Houston? Seeking to avoid government liability for home flooding caused by two Houston-area dams retaining runoff from the historic deluge, a Justice Department attorney argued Friday the probability of another Harvey is “incredibly low.”
Dozens of Houstonians sued the government in the U.S. Court of Federal Claims after runoff from Harvey’s epic rains in August 2017 pooled behind two dams built and managed by the U.S. Army Corps of Engineers and flooded their homes.
Thirteen property owners were chosen as test cases for the group in a bellwether trial held in Houston in May to determine if they have valid Fifth Amendment takings claims and should be compensated by the government for their flood damage.
Federal Claims Judge Charles Lettow heard closing arguments Friday in Washington, D.C., and audio from the proceedings was streamed into a room at the Houston federal courthouse.
Many of the 13 test case families are still unmoored by Harvey, and their attorneys told of their recovery process.
One family of four lived upstairs in their home for five months, cooking on a camp stove and ordering takeout, because the first floor was uninhabitable.
A woman who evacuated her neighborhood in chest-deep water moved out of her home for a year during repairs and decided not to move back in with her small children.
Her older son lives there now and keeps a kayak in the house in case of flooding.
Another woman’s home suffered catastrophic damage from 5 feet of water. Burglars broke into the property after the flood waters receded.
She said she no longer felt safe with her neighbors displaced and strangers in the area, describing it as a “zombie apocalypse.”
So she sold her house in January 2018 for less than half of what she paid for it in 2014, her attorney Edwin Easterby of Houston-based Williams Kherkher Hart Boundas said in closings Friday.
The homeowners’ lead counsel Daniel Charest, partner in the Dallas firm Burns Charest, said the Corps of Engineers held back water behind the Barker and Addicks Dams, which straddle Interstate 10, 20 miles west of downtown Houston, exactly as planned when it built them in the 1940s to contain the city’s main waterway Buffalo Bayou.
“When you build a dam designed to hold back water and the storm comes and the dam holds back water, no one should be surprised,” Charest said.
Justice Department William Shapiro attorney said the Corps of Engineers was in a no-win situation with flooding unavoidable for both downstream and upstream properties.
In fact, dozens of downstream homeowners have also brought takings claims against the government for flooding they say was caused by releases from the dams. A summary judgment hearing for that case is scheduled for Oct. 17.
Shapiro said a cost-benefit analysis showed the Corps’ decision to retain water behind the dams resulted in a net benefit to Houston of around $7 billion because it protected downstream properties, including those in downtown Houston.
“There was a benefit,” Judge Lettow said. “Let’s not ignore that fact. The dams operated as designed and gave significant benefit to the community as whole.”
Because the Corps of Engineers saved properties and lives, Shapiro said, they were exercising the government’s sovereign police powers, and cannot be held liable for Fifth Amendment takings claims.
Shapiro also said there was sufficient public information for homeowners to know about flood risk, namely a report the Corps published in 1995 that discussed the possibility of upstream flooding.
But the owners say they had no idea because their homes had not flooded before, and lenders did not require them to buy flood insurance.
Charest said the neighborhoods that flooded are ordinary Houston suburbs. He said he visited the test properties shortly after the flooding.
“Aside from the fact that the place had been wrecked by floods it was just like any other neighborhood,” he said. “It’s not like some backwater shanty or a place on the beach on stilts. You go around and see Starbucks and gated communities. I challenge anybody who claims they said, ‘I expect this will probably flood.’”
“It’s not because they’re risk takers, they didn’t know about the risk,” he added.
But the government’s main argument is that Harvey was a one-off event, unlikely to happen again anytime soon.
“Plaintiffs want the court to concede that extraordinary flooding will inevitably reoccur,” Shapiro said. “But the problem is that there’s no evidence a storm of this kind is inevitably reoccurring. Predicting an event like Hurricane Harvey requires mere guess work.”
He added, “The probability of another Harvey during the life of the plaintiffs, or the lifetime of plaintiffs’ ownership of their homes is extraordinarily low.”
Lettow, a George W. Bush appointee, will take the case under submission after closings Friday.
If he finds the government liable he’ll decide whether to certify a class action and, eventually, put a price on the homeowners’ damages.