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What should the people living near the dams have known?

More than they were told, is what they’re saying.

A federal lawsuit against the U.S. Army Corps of Engineers claims government officials knew for years that water impounded behind Addicks and Barker dams would flood thousands of suburban homes during an extreme storm – and yet did nothing to advise or compensate property owners.

The lawsuit was filed on behalf of Christina Micu, a homeowner in the Canyon Gate neighborhood in Cinco Ranch, a subdivision that essentially became part of the Barker Reservoir during Harvey. The case is pending in the Washington D.C.-based U.S. Court of Federal Claims.

Canyon Gate was inundated for more than a week when the Army Corps allowed water impounded behind the dams, called the “flood pool,” to reach record size as more than 50 inches of rain fell between August 25 and 29th.

The suit was filed as a class action on behalf of everyone who owns property that flooded behind both dams. Though other lawsuits have been filed on behalf of those whose properties were flooded by dam releases, this is the first case filed on behalf of those whose property flooded directly from what engineers call “reservoir pools” or “flood pools.”

More than 30,000 people own property and more than 140,000 people live in areas that Harris and Fort Bend county officials have identified as subject to inundation from those flood pools, according to a Chronicle analysis of evacuation orders issued during Harvey.

There’s already one lawsuit over the issue of compensation for the damages caused by the dam releases – basically, that’s a takings claim, like when eminent domain is used. This one has that element and more in it, and there’s still more where those came from.

In the weeks since the storm, a slate of high-powered law firms have coordinated to recruit as many as 10,000 plaintiffs in Houston. Other lawyers — particularly those who specialize in eminent domain and environmental law — are operating independently. Most of them are pursuing cases for downstream residents like Pledger who live along Buffalo Bayou and were impacted by the Army Corps’ controlled releases.

On a recent weeknight, Pledger and dozens of other flood victims packed into a private meeting room at a local Mexican food restaurant to consider a pitch from yet another legal firm over complimentary fajitas. Other than flooding during Harvey — most for the first time — the residents all had one thing in common: They live downstream of two federally owned reservoirs that got so full during the unrelenting rainstorm that the U.S. Army Corps of Engineers had to release an unprecedented amount of accumulated water into a bayou that snakes through their neighborhoods.

[…]

All told, lawyers and legal experts say the spate of lawsuits may become one of the largest inverse condemnation-related legal challenges in U.S. history, driven in part by the high value of the impacted homes, which are all on Houston’s wealthier west side.

But they are mixed in their forecasts of how the cases might play out. Many say the property owners have little chance of winning, citing a variety of state and federal legal opinions; others say property owners have a fighting chance, although many admit it’s not a slam dunk.

They all agree on one thing: It will take years and untold millions of dollars to litigate.

“Generally speaking, I think it’s easy to say the government will win,” said New York University law professor Richard Epstein, who has been called the nation’s leading academic expert on eminent domain and takings law. But, he added, “There’s nothing about this which is straightforward or simple.”

If there are still legal battles being fought over this ten years from now, I won’t be surprised. Neither will I be surprised if there are a flurry of bills in the next legislative session to expand or abridge the rights of those who are suing. Get settled in for the long haul, we’ll be watching this for awhile.

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3 Comments

  1. neither here nor there says:

    Went to visit someone I know out in one of the areas that flooded, about a 1.5 million dollar home. When I saw his backyard and where he lived asked if he had flood insurance, he replied no, he didn’t need it as he was not in a flood zone. He was correct about one thing he was not in a flood zone, he was in a flood plain.

    If you live in the Houston area you should have flood insurance if you can afford it.

    People make fun of me for buying GAP insurance for new vehicles, some of them ain’t laughing much now.

  2. bob jones says:

    The case will probably hinge on the fact that the original plat stated: THIS SUBDIVISION IS ADJACENT TO THE BARKER RESERVOIR AND IS SUBJECT TO EXTENDED CONTROLLED INUNDATION UNDER THE MANAGEMENT OF THE U.S. ARMY CORPS OF ENGINEERS.

    Ignorance of a government document spelling out the risks is not a defense under law.

  3. Ross says:

    @bob, that only applies to the portion of Canyon Gate that is in Ft Bend County. The portion in Harris County does not have that wording on the plat. Having said that, there’s may be a cause of action against the developer for not warning the buyers. I also believe that the buyers bear some responsibility. If you come out of your house and look South, and you can see the inside of the dam, you either bought in the wrong place, or need to buy flood insurance.