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Who’s Financially Responsible for Flooding?

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Who's Financially Responsible for Flooding?

By: Adam M. Matheny

Who's paying?

This month courts ruled that flooded residents upstream of dams hit by Hurricane Harvey would be compensated by the Army Corps of Engineers. This could leave the federal government footing a nearly $1 billion bill.

Given that sort of price tag, the next natural question is “How much will Harris County and Fort Bend County pay?” After all, local officials in both counties greenlit the construction of thousands of homes and businesses near reservoirs which they already knew could not withstand major storms.

As it turns out: Nothing.

Despite the fact that local officials, private engineers, and the Army Corps of Engineers all correctly predicted that homes within these potential “lakebeds” would be flooded in the event of heavy rainfall, judges are putting the full onus on the federal government.

That’s because it was the Corps responsible for operating these reservoirs and directing the overflow toward private land during Hurricane Harvey, resulting in the flooding of more than 10,000 properties. However, county officials did initially permit the construction despite the reservation of engineers.

There is some controversy, however, regarding how much knowledge there was available related to dam-related flooding, versus rainfall induced flooding. This was borne out when it was noted that numerous properties resisted flooding during Harvey’s rainfall, but were later deluged as the reservoirs became overfilled. Federal judges said it appeared that the Corps had intentionally chosen to release floodwater in upstream areas.

As a result, the federal government has been held solely responsible, in the legal sense, for the destruction, despite the fact that county officials probably should have warned property owners in these areas. This is due in part to the fact that the county does not own or operate the reservoirs and has no input on when and how floodwater is released. Also, the Corps did not push for stricter rules for building in high risk areas, nor did they purchase property in these areas themselves, which could have mitigated the losses. In short, the county didn’t have the ability to make decisions that impacted the properties after Harvey hit, and the federal government did.

County Officials Still Ethically Complicit?

The ruling might have put the full legal onus on the federal government, but that doesn’t mean everyone believes that county officials didn’t play a significant role in the magnitude of the losses. Many still believe that they had an obligation to act in the years before the devastating hurricane hit. They argue that officials were well aware of the risks, as were developers and engineers, and simply moved forward with development approvals anyway, to please their tax base.

The fact that county leaders were warned about these issues was not disputed during the trial which found the federal government responsible. However, suing the county and city governments was simply out of reach because they did not run either dam.

The Justice Department, which represented the Corps, argued that the storm was unprecedented and that properties were flooded throughout the area—the flooding wasn’t restricted to the regions in question. About 75% of the flooded properties weren’t even within the flood plain.

Nonetheless, Judge Lettow ruled against the Corps due to their willful and intentional choice to direct the flooding toward private property, and that the results of those choices were foreseeable. While the court acknowledged that some efforts had been made to warn the public of these risks early in development, the warnings were not sufficient to reach the vast majority of property owners who had purchased homes near the reservoirs.

This ruling applies only to upstream properties; a second ruling would be held for downstream properties that also flooded.

Repeated Mistakes Led to Massive Damage

The two dams, Barker and Addicks, were influential in the development of Harris County since their creation after the 1935 Great Flood. At the time of their construction, the Corps believed that the land above the reservoirs was at low risk, which in turn led the government to pass on purchasing easements and properties for water storage in emergencies.

Still, by 1992, some engineers were pointing out that the floodplain footprint was much larger than the government owned land, meaning that civilian property owners would be at risk of having their homes within “flood pools.” These engineers appealed to county officials as well as the emergency management coordinators to take a closer look at the problem. Instead, the engineers were vilified by the special purpose district, in order to benefit developers.

There were warnings added to some plats which indicated that certain areas were subject to “controlled inundation” but these warnings weren’t seen by most buyers.

The issue was exacerbated by the fact that Texas counties have few powers with regards to limiting development, despite regulating new construction. Rather than warning buyers, they took the position that since there were no regulations mandating warnings, they would say nothing about the issue. Reports that showed the potential flooding that resulted from Harvey were widely ignored or simply buried, becoming obscure before they were seen by those who could benefit from that knowledge.

Now, Harris County engineers are requesting that the federal government update its maps to better represent the risk of engineered flooding, with some calling for more extensive signage to warn potential property buyers that properties are within the reservoir’s flooding range.

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