Court of Federal Claims applies to properties only upstream of the dams. 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. 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. The judge noted that the Corps had tried to inform the public through meetings. 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.” Almost three-quarters of the 204,000 homes and apartments that took on water were outside the 100-year flood plain. 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. The Constitution requires compensation for the taking of private property for public use. 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 17 miles west of Houston. 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. They just didn’t want to lose their tax base. They were approving plats for development. “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. 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. 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. “We don’t have control to make the decisions.” “We don’t have keys to the car,” said Spinks, an executive managing attorney in County Attorney Vince Ryan’s office. Federal officials also didn’t push for stricter building rules or purchase at-risk upstream properties, which could have prevented losses, she said. 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. 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. The federal judge found the Corps intentionally used upstream neighborhoods to store rising floodwater. Many homes around Addicks and Barker remained dry after Harvey’s rainfall stopped, only to be swamped as the reservoirs filled beyond capacity. The maps did not reflect information about areas that were known to be subject to dam-induced flooding. In addition, Flood Insurance Rate Maps by the Federal Emergency Management Agency showed areas that would flood due only to rainfall. Evidence showed that agency officials repeatedly declined to buy additional properties above the reservoirs that they knew could be inundated in extreme weather.Īlthough 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. Now a judge has found the federal government liable in what was essentially a human-engineered disaster. The Corps - along with local officials and private engineers - had predicted the neighborhoods inside invisible “lakebeds” would take on water during heavy rainfall. 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? 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.
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