Residents and business owners whose properties sustained millions of dollars in flood damage during Hurricane Harvey in August, 2017, have filed a lawsuit against the United States Government. Their complaints allege that the U.S. Army Corps of Engineers is responsible for the flooding that caused the damage. More specifically, the plaintiffs claim they are owed compensation for their properties under the nation's “eminent domain” laws.
The roots of these particular claims go back over 80 years. In 1938, the Franklin Roosevelt Administration passed the Rivers and Harbors Act, which was later amended to include a number of Flood Control Acts. The two reservoirs, Addicks and Barker, were completed after the Second World War with the purpose of flood management and the protection of downtown Houston. These reservoirs, encompassing over 25,000 acres, usually consist of "green spaces" and athletic fields. The two reservoirs have a combined capacity of 410,000 acres.
At the height of the storm on August 28, 2017, the Army Corps of Engineers started a controlled release of water from the two reservoirs, attempting to mitigate flooding in the area. However, although Hurricane Harvey had turned back toward the Gulf by that point, the water levels continued to rise. The following day, the Corps decided to raise the release rate. By the 30th, the two dams were discharging 13,700 cubic feet of water per second. By that time, however, the reservoirs had overflowed, spilling into downstream residential and business areas and ultimately affecting as many as 10,000 properties.
Significantly, the Corps had anticipated what would happen well over three decades ago. At the time the dams were constructed, lands upstream had been used mainly for agriculture. In the 1980s, a federal geological survey of the area was conducted in order to determine whether or not the government should acquire more land that was in danger of flooding during periods of extreme rainfall. The federal government decided against the purchase, and it was ultimately bought up by private developers.
In 1986, the Corps of Engineers reported that the flood zone was wider than the area under federal flood control management. It warned that, “[as] the surrounding areas are developed, this may mean that homes in adjacent subdivisions may be flooded. This could result in lawsuits against the Corps of Engineers for flooding private lands.”
Today, that scenario has come to pass. Plaintiffs claim that the flooding constitutes the seizure of private property for the benefit of the government under the Fifth Amendment, and thus entitles property owners to compensation.
The government argues that the flooding that occurred is a once-in-a-lifetime event. The defense further argues that plaintiffs should have been aware of the flood risk, based on the availability of historical records and U.S. Geologic Survey maps. However, attorneys for the plaintiffs say that expecting potential property buyers to comb through decades of news archives and other public records before deciding to purchase was “unreasonable. One lawyer representing a homeowner said that the government had an obligation to actively inform people about the risks.
Thirteen cases brought by property owners went to trial on May 6th. The outcome of those trials will determine the extent of the government's liability, and how future cases of this type will be handled.