The ruling from the U.S. Court of Federal Claims brings the owners of some 10,000 properties in subdivisions west of Houston closer to receiving government compensation tied to the devastating 2017 storm.
The case involves neighborhoods situated in a dry reservoir upstream of the Addicks and Barker dams, built by the Army Corps of Engineers as part of a broad flood-management plan. In good weather, the more than 25,000 acres are a grassy expanse of golf courses, parkland and sports fields.
In severe rain, the gates at the two dams are closed to hold back water from flooding downtown Houston. During Harvey, water continued to rise behind the dams as intended, eventually flowing back into the adjacent neighborhoods that sit in the reservoir pool and flooding homes there.
The eminent-domain case, which went to trial in May, hinged on whether the flooding qualifies as a “taking” of personal property for the benefit of the federal government. Such a taking would require the government to compensate landowners under the U.S. Constitution’s Fifth Amendment.
Judge Charles Lettow said the flooding clearly qualifies as a taking. The Army Corps “fully anticipated a storm the likes of Harvey,” the judge wrote, and knew it would likely need to store water on private property.
Arguments by the government that the flood damage was repairable and confined to a single event aren’t persuasive, the judge wrote. Some residents couldn’t afford to repair their homes, the judge said, and all now face decreased property values. A series of prior storms, he wrote, suggest “this was more than an isolated event, and that it is likely to recur.”
He also concluded that “the government received a notable benefit at the expense of the upstream private property owners,” namely that the dams were able to protect downtown Houston from an estimated $7 billion in losses during Harvey.
The trial earlier this year looked at 13 test properties to help determine whether the government was liable for the damage. Now, Judge Lettow will consider the question of compensation and what to do with the thousands of related claims.
“We’re thrilled the judge saw the facts as we did and the law as we did,” said Daniel Charest, a lead lawyer for the plaintiffs. “We plan to push as fast as we can to get people who have suffered made whole under the law.”
A spokesman for the U.S. Justice Department, which represents the government in the case, said the agency is reviewing the ruling and declined to comment further.
A separate track of cases is being pursued by residents who lived downstream of the Addicks and Barker dams and whose properties were flooded when the Army Corps intentionally let out water during Harvey that threatened to spill over or break the dams. The judge overseeing those cases recently ordered the government and plaintiffs’ lawyers to discuss a settlement, according to Houston lawyer Derek Potts.