How did Houston, counties escape blame for flooded homes in reservoirs during Harvey?
While county leaders may have had a duty to protect and warn the community, the courts have held the federal government had the sole legal responsibility
By Gabrielle Banks and Zach Despart
HOUSTON — A court ruling this month that the Army Corps of Engineers must compensate flooded residents and property owners upstream of two massive dams for losses during Hurricane Harvey could leave the federal government with a $1 billion bill to settle claims.
So how much will Harris and Fort Bend counties have to pay out, given that local officials approved construction of thousands of suburban homes and businesses on the edge of reservoirs that officials knew lacked the water storage capacity to withstand a major storm?
Not a penny.
The Corps — along with local officials and private engineers — had predicted the neighborhoods inside invisible "lakebeds" would take on water during heavy rainfall. Those worst-case scenarios played out. Now a judge has found the federal government liable in what was essentially a human-engineered disaster. Evidence showed that agency officials repeatedly declined to buy additional properties above the reservoirs that they knew could be inundated in extreme weather.
Although county officials permitted construction on former prairie and ranch lands, it was the Corps that operated the reservoirs, detained water during the deluge and directed it toward privately owned land during Harvey, inundating more than 10,000 properties.
In addition, Flood Insurance Rate Maps by the Federal Emergency Management Agency showed areas that would flood due only to rainfall. The maps did not reflect information about areas that were known to be subject to dam-induced flooding."
Many homes around Addicks and Barker remained dry after Harvey's rainfall stopped, only to be swamped as the reservoirs filled beyond capacity. The federal judge found the Corps intentionally used upstream neighborhoods to store rising floodwater.
In short, while county leaders may have had a duty to protect and warn residents, the courts have held the federal government had the sole legal responsibility for intentional flooding following the epic 2017 downpour.
Melissa Spinks, an attorney who represented Harris County in three dismissed lawsuits related to Addicks and Barker reservoir flooding, said the county could not be held liable because it neither owns nor maintains the reservoirs. Federal officials also didn't push for stricter building rules or purchase at-risk upstream properties, which could have prevented losses, she said.
"We don't have keys to the car," said Spinks, an executive managing attorney in County Attorney Vince Ryan's office. "We don't have control to make the decisions."
The Justice Department, which represents the Corps in hundreds of claims, declined through a spokesman to comment on the counties' liability in the upstream disaster.
'Big, Dirty Secret'
Larry Dunbar, one of the lawyers who represented upstream residents and property owners, noted that the absence of legal liability does not absolve local governments of blame for failing to act in the years prior to Harvey.
It was the big, dirty secret around town that the developers and engineers and Harris County and the city of Houston politicians knew," said Dunbar, a flood engineer for 40 years. "It's their job to know that stuff. They were approving plats for development. They knew the dams were there. They just didn't want to lose their tax base. They didn't want to upset developers."
No one disputed during the 10-day trial for upstream property owners last spring that county leaders were repeatedly warned about the perils to landowners. But city and county governments could not be sued under a Fifth Amendment "takings" claim, because the Corps alone ran the two World War II-era dams, located 17 miles west of Houston. The Constitution requires compensation for the taking of private property for public use.
The Justice Department argued that Harvey was an unprecedented event and properties were flooded all over the region, not just in the area of the reservoirs. Almost three-quarters of the 204,000 homes and apartments that took on water were outside the 100-year flood plain.
However, U.S. Judge Charles F. Lettow wrote in his Dec. 17 opinion that the Corps had knowingly and intentionally directed floodwaters to pool up on private property and that "pools of this size and the attendant flooding of private property were, at a minimum, objectively foreseeable."
The judge noted that the Corps had tried to inform the public through meetings. He said that Harris County also warned the community about flood risks years before Harvey and that Fort Bend County began warning in subdivision plats in the early 1990s that water could be stored on private property.
But the net result was that the vast majority of people had no idea their homes were flood prone due to their proximity to the reservoirs."
The ruling from the U.S. Court of Federal Claims applies to properties only upstream of the dams. A separate group of property owners that suffered flooding downstream of the reservoirs is awaiting its own court ruling following a December hearing.
Addicks and Barker — created in the wake of the Great Flood of Houston in 1935 — have played a vital role in the development of modern-day Harris County, safeguarding a growing population and petrochemical facilities. The dams prevent catastrophic loss of life following heavy rainfall.
The Corps officials at the time determined flooding was a low risk on rural land above the government-owned reservoirs. As years went by and developers began building in the flood plain, the government opted, in its cost-benefit analysis, to pass on buying more land or easements for temporary water storage.
One of the officials who knew early on about the potential peril was a former Fort Bend County assistant engineer who attended a meeting with the Corps in 1992 and returned with worrying new information.
Charles Glen Crocker learned that the footprint for Barker Reservoir was bigger than the land owned by the U.S. government, placing future homeowners in the Cinco Ranch and Kelliwood subdivisions within what engineers called "flood pools." Crocker wrote a letter alerting county commissioners, the Fort Bend County Drainage District and the county's emergency management coordinator and asked officials to look into the matter.
Instead, members of a special purpose district that was formed to benefit developers by paying for drainage improvements attacked Crocker.
Fort Bend County did add a brief warning on its plats that said, "This subdivision is adjacent to Barker Reservoir and is subject to extended controlled inundation under the management of the U.S. Army Corps of Engineers." But few people ever saw the plats when they bought property, Lettow noted in his recent ruling.
Neither Houston nor Harris County adopted any flood-pool rules or disclosure requirements. Counties in Texas lack ordinance-making power and have limited ability to control development, but they do regulate new construction. And when Houston's leaders signed off on a feverish building boom in the 1980s, few of them mentioned the threats publicly or took them seriously.
Politicians thought, 'Well, we have no regulations to prevent that, and we're not going to make you tell anybody,'" Dunbar said. "We'll just approve it and close our eyes and turn our heads."
County and city officials over the course of years permitted construction of 30,000 suburban homes and businesses in Katy and west Houston at the edges of the two reservoirs. A Houston Chronicle review of how more than 100 subdivisions were approved showed that flooding spawned by Harvey was predicted for 26 years in obscure local and federal reports that were either ignored or not widely distributed.
The Harris County Flood Control District completed several studies of the upstream flood risk, said Armi Easterby, another attorney representing the upstream plaintiffs. A 1996 study noted that "as development continues behind the reservoirs there is the potential to expose as many as 25,000 homes and businesses in the reservoir fringe areas to flooding." The study also noted that, "the maximum flood pool levels of the Addicks and Barker reservoirs extend far beyond the limits of government owned land."
Over time, the dams also began to weaken. In 2009, the Corps announced that the two Houston-area dams had reached a high hazard classification.
Two years before Harvey, the district examined how massive amounts of water were overflowing from Cypress Creek into the Addicks watershed during major storms. It issued a report on possible remedies, including building new reservoirs upstream of Addicks to collect Cypress Creek's overflow. Harris County did not move forward on the proposals for a number of reasons, including high costs, eminent domain concerns and opposition from environmental groups.
After Harvey caused massive flooding, damaged thousands of homes and left 36 dead in Harris County, Commissioners Court passed stricter building rules, requiring new homes to be built as much as 8 feet higher. The rules also extend to the 500-year flood plain, which is significantly larger than the 100-year map governed by the old standards.
Harris County Engineer John Blount also began the process this year of asking the federal government to update its insurance-rate flood maps, so they accurately reflect the risk of human-engineered flooding.
We base our warnings and regulations on what's on the map," Blount said. "What Fort Bend learned the hard way is no one looks at the plat."
Blount said there is no sign in the neighborhoods that tells people they're in a reservoir. The Corps did mount signs at the edge of its parkland indicating it is a reservoir.
"It's clearly misleading to homeowners and potential homebuyers where the reservoir starts and ends," he said. "I think people are still buying homes that don't know the potential of this happening again and clearly it can happen again."
(c)2019 the Houston Chronicle