The damages phase of the Upstream Addicks-Barker class-action lawsuit over Hurricane Harvey flooding concluded Friday, 6/11/2022. Earlier, Judge Charles F. Lettow ruled that the Army Corps was liable for damages. The question being decided now is “How much will they get?” We don’t yet have that answer, but should before the end of the year.

Basis for Claims

After Hurricane Harvey, people and businesses both upstream and downstream of the Addicks and Barker Reservoirs on Houston’s west side sued the Army Corps. Plaintiffs in both cases alleged that the Army Corps’ operation of the dams flooded their homes and constituted a taking of their property without compensation. The Fifth Amendment of the U.S. Constitution prohibits that.

“No person shall be … deprived of … property, without due process of law; nor shall private property be taken for public use, without just compensation.”

From Fifth Amendment of U.S. Constitution

Difference Between Upstream, Downstream Cases

However, the Upstream and Downstream cases also have important differences. Upstream, the Corps did not own all the land inside the U-shaped reservoirs. Worse, the Corps permitted developers to build homes and businesses inside the reservoirs on land that remained in private hands. The Corps did not anticipate it all flooding based on storms they had studied going back to the 1890s. Yet the Corps still built the walls taller and longer than it needed to hold anticipated floods.

When Harvey came along, the water in the reservoir backed up onto that private property and flooded hundreds of homes.

Lawyers for the flooded property owners asserted that the federal government cannot use private property to store federal floodwaters without providing compensation. The judge agreed.

Second of Two Phases Nearing Completion

In the first phase of the upstream case, the court found the Corps liable. In the second phase, the court considered damages, i.e., how much compensation property owners should receive.

Although the trial portion of the damage phase just concluded, the case is not yet over. McGhee, Chang, Landgraf & Feiler, one of the law firms representing plaintiffs in the class-action suit, said they must still submit post-trial legal briefings. Then they will make final closing arguments in Washington D.C. in a few months. “We expect a decision to be rendered by the Court thereafter – probably sometime in late fall/winter,” said a press release by the firm.

Exponential Growth, Larger Storms, But No Mitigation

After reading the 46-page decision, I gained a better grasp of the history of the dams and the nature of the claims.

The Corps built the dams much higher than they needed to hold a 100-year flood based on what they knew at the time.

But the Corps did not purchase all land inside the reservoirs. They left private property outside the area expected to flood. At the time the dams were constructed, that land was used for ranching and rice farming.

If the land flooded, reasoned the Corps, not much damage would result. But then came Houston’s exponential growth in the 1950s. Those ranchers and rice farmers sold their land to developers. And developers started to build inside the reservoir.

Then the Corps realized that the storms on which it based the reservoirs’ designs (including a storm from the 1890s) were smaller than storms hitting the Houston area in the modern era. But by then, it was too late.

When the Corps realized future floods would likely invade homes, it launched an awareness program and held some public meetings. But the judge felt that information didn’t filter down to most homebuyers.

Also, the Corps took no concrete steps to reduce flood risk when it realized the severity of the problem. Worse, the Corps continued to issue permits and authorizations for more developments.

To sum up 46 pages in a sentence, “The Corps knew it had a problem and did nothing to fix it.” (That’s my takeaway, not the judge’s language.) The Corps remained focused on its primary objective – preventing downstream flooding.

Downstream Focus Looms Large in Upstream Decision

Said Judge Lettow, “Equipped with the knowledge that storms of the design-storm magnitude were probable, the Corps did not stray from its primary objective to prevent downstream flooding (indeed, it probably could not), even when it knew that could well mean impounding water on private property.”

Lettow cites a 2012 Water Control Manual which the Corps followed during Harvey. It instructs the Corps to operate the dams in a manner consistent with their original purpose: to protect downstream property by impounding water in upstream reservoirs. It states “…operate the reservoirs in a manner that will utilize to the maximum extent possible [Emphasis added] the available storage to prevent the occurrence of damaging stages on Buffalo Bayou.”

Knew Larger Floods Probable

According to the judge, the Corps continued to follow that policy even though it understood that rainfall events – larger than ones they designed the dams around – were “probable, rather than merely possible.”

Lettow also found it “undisputed that plaintiffs did not know their properties were located within the reservoirs and subject to attendant government-induced flooding.”

Government Planned for Years to Impound Floodwater on Private Property

Said one hydrologist who reviewed a detailed history of the Corps’ decision making, “The Corps of Engineers did NOT buy the entire area they knew would be inundated if Addicks and Barker reservoirs were at peak storage capacity.”

Judge Lettow said, “The government had made a calculated decision to allow for flooding these lands years before Harvey, when it designed, modified, and maintained the dams in such a way that would flood private properties during severe storms. Defendant cannot now claim that this harm was unavoidable when it planned for years to impound floodwaters onto plaintiffs’ properties.”

The Corps made the best decisions it could with the information AVAILABLE at the time.  But as we all know, things change! And that’s what worries me most about this case.

Right now, developers are building projects all around the region based on flood maps that will soon be replaced.

To read the original complaint by one of the law firms (Irvine $ Conner), click here.

For the complete text of the liability ruling, click here.

Posted by Bob Rehak on 6/11/2022

1747 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.