Addicks and Barker Reservoirs homeowners have limited options to sue if their homes flood again

Quote:

---

Wording in a court judgment prevents homeowners in the giant reservoirs west of Houston from suing the federal government in future floods and could place a heavier burden on lower-income residents.

---

Quote:

---

Last October, Judge Charles F. Lettow of the U.S. Court of Federal Claims awarded homeowners in six test cases a combined award of roughly $500,000, after finding the U.S. Army Corps of Engineers liable for flood damages the reservoirs inflicted on their homes during Harvey. People who owned other homes within the reservoirs at the time of Harvey and suffered similar damages have until August 30 of this year to file their own lawsuits for compensation.

But Lettow's damage award came with a caveat, identified in the final pages of the judgment as a "flowage easement." It allows the Corps access to the test properties without paying another dime.

"The easement itself basically grants the government a permanent right to impound water within homes or properties that essentially were flooded during Harvey," Cook said.

Charles Irvine, one of the lead attorneys for owners of homes sitting in the reservoirs behind the dam gates, agreed with Cook's interpretation.

"Reading that in context with the liability decision, you could infer that a court will make the same ruling on all of the other upstream properties, when it gets the opportunity to do that," Irvine said. "(The Corps) will treat that easement as applying to every single upstream property that flooded during Harvey."

---

Good luck trying to sell those houses in the future...

The whole original premise was they were bamboozled by the sellers right?

Can't claim that anymore

So basically the judge is saying they now have to recognize a "We can destroy your house if we want to" easement that covers the entirety of the property?

Ryan the Temp said:

---

So basically the judge is saying they now have to recognize a "We can destroy your house if we want to" easement that covers the entirety of the property?

---

Sounds like it is a case of "if you are accepting this payout, you acknowledge the risks of future flooding and can't come after us again now that there is no case to be made for not knowing the risks", which I can understand.

What really should happen is that the Corps needs/should definitively identify the limits of the reservoir and no new construction within those limits and anybody that wants out and can make a case that they were somehow deceived at time of purchase (which to me is garbage - you are buying inside a fuggin reservoir for stormwater, flooding is part of the territory) gets to negotiate a buy out.

I also think the Corps should be required every 5 or so years to do a detailed survey of the reservoir and make public the elevations and reduced capacity percentage due to vegetation growth and in the event capacity is below something like 90%, that capacity needs to be made up through either vegetation removal or excavation of material that have accumulated (or both) inside the reservoir.

Sounds to more like the Corps will give you $500k $85k for your house which is enough to tear it down and be left with an empty lot. If you choose to pocket the money instead and continue to live there, that's on you and you accept the consequences of those actions. I'd be happy with that settlement if I were a homeowner.

Edit: Number corrected based on Irish's correction to my numbers.

Believe the combined award of six cases was $500k. So more like $85k

What's flood insurance cost on an upstream flood house? And does it carve that kind of event out of the coverage?

No bailouts for houses inside levees

I heard on the radio yesterday that it was close to $1000/year for those near the reservoir.

Why wouldn't they be able to sell? They can still get flood insurance.

terradactylexpress said:

---

The whole original premise was they were bamboozled by the sellers right?

---

No

cajunaggie08 said:

---

I heard on the radio yesterday that it was close to $1000/year for those near the reservoir.

---

I am in a Zone AE (because FEMA sucks and it is amazing how my house is magically in a bubble for AE but houses around me are magically in X, and I have never flooded in any of the flood events over the last 6 years, but that's a different story) and my annual flood insurance is about $700.

So $1000 a year because you are next to or in a flood containment reservoir is very reasonable IMO, especially since you have a higher chance of having issues due to the fact that it is a storm retention reservoir.

schmellba99 said:

---

cajunaggie08 said:

---

I heard on the radio yesterday that it was close to $1000/year for those near the reservoir.

---

I am in a Zone AE (because FEMA sucks and it is amazing how my house is magically in a bubble for AE but houses around me are magically in X, and I have never flooded in any of the flood events over the last 6 years, but that's a different story) and my annual flood insurance is about $700.

So $1000 a year because you are next to or in a flood containment reservoir is very reasonable IMO, especially since you have a higher chance of having issues due to the fact that it is a storm retention reservoir.

---

I agree it is reasonable considering the risk and costs associated with the home existing where it does. It was previously around $400 per year before Harvey

I guess I'm confused- were these people not sold homes on the pretext that the Corps couldn't or wouldn't flood them out despite their location? I mean, if the Corps allowed the land to be developed and sold was the risk of flooding properly disclosed, and if it wasn't, should the Corps be forced to buy them out with a settlement of some kind?

I believe that's what happened here in the former Woodland Oaks subdivision just south of White Oak Bayou near Fairbanks N. Houston & W. Little York. I can't recall if it was Hurricane Ike or maybe even TS Alison that flooded out this area so badly that folks were offered buyouts to leave.

https://goo.gl/maps/ajX8Uz9BTAy4iR1S7

This never made sense to me. When it rains like it did in Harvey if the government does nothing, then land inside the resorvoir floods. That is the point of a reservoir. To hold water so other areas do not flood.

When the government made the decision to open the dam and flood others, that was the government taking action to take over land and they owe compensation for that action as the bayou and the limits of its banks belong to the government, but the elevations above those do not.

It was not noted on their closing papers or plates maps that the homes were I side the reservoir pooling area. And the county allowed homes to be built there via issuing permits. So yes, it's possible people were deceived via omission that their home was at a higher risk. Real estate agents, brokers etc should also be on the hook for not disclosing all potential risk. If that falls back on the builders and engineering firms and county it should as well.

Harris County Flood Contol will be releasing their provisional Maapnext flood zones sometime this year, which will increase the 109yr flood plain. And people's bills will go up.

https://www.maapnext.org/

Data isn't out yet.

And yes, not surprised there will be strings attached to funds. And I'm fully sure this will impact resale.

Bondag said:

---

This never made sense to me. When it rains like it did in Harvey if the government does nothing, then land inside the resorvoir floods. That is the point of a reservoir. To hold water so other areas do not flood.

When the government made the decision to open the dam and flood others, that was the government taking action to take over land and they owe compensation for that action as the bayou and the limits of its banks belong to the government, but the elevations above those do not.

---

This lawsuit is for people upstream of the dams. Basically, USACE owns the flood pool to a 100-year or 500-year storm event at the time they were built, meaning with the area to the west undeveloped (less runoff volume than today). However, the dam is built to an elevation that inundates properties outside of the flood pool for that particular design criterion.

Bondag said:

---

This never made sense to me. When it rains like it did in Harvey if the government does nothing, then land inside the resorvoir floods. That is the point of a reservoir. To hold water so other areas do not flood.

When the government made the decision to open the dam and flood others, that was the government taking action to take over land and they owe compensation for that action as the bayou and the limits of its banks belong to the government, but the elevations above those do not.

---

It was either open the dams and have properties downstream flood or let water rush over and around the structures to the point it would erode and potentially fail and instead of flooding the homes, they would just be slabs of concrete where homes once stood.

cajunaggie08 said:

---

Bondag said:

---

This never made sense to me. When it rains like it did in Harvey if the government does nothing, then land inside the resorvoir floods. That is the point of a reservoir. To hold water so other areas do not flood.

When the government made the decision to open the dam and flood others, that was the government taking action to take over land and they owe compensation for that action as the bayou and the limits of its banks belong to the government, but the elevations above those do not.

---

It was either open the dams and have properties downstream flood or let water rush over and around the structures to the point it would erode and potentially fail and instead of flooding the homes, they would just be slabs of concrete where homes once stood.

---

Not objecting to the decision. Just stating that those are the ones that are actually due compensation.

Jack Klompus said:

---

Bondag said:

---

This never made sense to me. When it rains like it did in Harvey if the government does nothing, then land inside the resorvoir floods. That is the point of a reservoir. To hold water so other areas do not flood.

When the government made the decision to open the dam and flood others, that was the government taking action to take over land and they owe compensation for that action as the bayou and the limits of its banks belong to the government, but the elevations above those do not.

---

This lawsuit is for people upstream of the dams. Basically, USACE owns the flood pool to a 100-year or 500-year storm event at the time they were built, meaning with the area to the west undeveloped (less runoff volume than today). However, the dam is built to an elevation that inundates properties outside of the flood pool for that particular design criterion.

---

yup. and from I remember the USACE didnt open the dams until after the upstream properties were already flooded. You could argue they would have flooded anyways, but they were being flooded by a body of water the government created and somewhat controlled. Had they opened the damns sooner they could have shown they were trying to not let the reservoir extend beyond the property the government owns. Instead they didnt open the dams until it became necessary to do so so the structures wouldnt fail but by that point they were using private property to hold back water whether they intended to or not. It definitely is a unique situation as all other reservoirs are visible lakes where you are aware you are buying water front property.

Bondag said:

---

cajunaggie08 said:

---

Bondag said:

---

This never made sense to me. When it rains like it did in Harvey if the government does nothing, then land inside the resorvoir floods. That is the point of a reservoir. To hold water so other areas do not flood.

When the government made the decision to open the dam and flood others, that was the government taking action to take over land and they owe compensation for that action as the bayou and the limits of its banks belong to the government, but the elevations above those do not.

---

It was either open the dams and have properties downstream flood or let water rush over and around the structures to the point it would erode and potentially fail and instead of flooding the homes, they would just be slabs of concrete where homes once stood.

---

Not objecting to the decision. Just stating that those are the ones that are actually due compensation.

---

I disagree. The government didnt flood those homes. Nature did. Man did his best to control the situation but it beyond man's capibilities.

Bondag said:

---

This never made sense to me. When it rains like it did in Harvey if the government does nothing, then land inside the resorvoir floods. That is the point of a reservoir. To hold water so other areas do not flood.

When the government made the decision to open the dam and flood others, that was the government taking action to take over land and they owe compensation for that action as the bayou and the limits of its banks belong to the government, but the elevations above those do not.

---

And again - where is the responsibility for the buyer in all of this?

You live near a river, stream, creek, storm ditch, regular ditch, reservoir, bayou, swamp, bay, ocean....the potential to flood is always there. You live downstream in the discharge path of a flood reservoir, there is always the potential that the gates will be opened during major storm events to prevent levee/dam failure. Basically anywhere east of I-35 in Texas fits this bill.

I feel for homeowners, because flooding sucks ass and it always will. But this "I wasn't notified that XXXX event could potentially happen at some point, therefore I was deceived and somebody owes me money!" mentality is just garbage to me. It should be incumbent on buyers to do their own damn research on an area before dropping multiple thousands of dollars on where they will live, and if the mortgage company doesn't require flood insurance and the homeowner chooses to not buy it even though they are in a high propensity area, that's on them as well.

I hate insurance as much as the next guy - I have to have 3 policies on my house. I live 7 miles from the Brazos and about 5 miles from any significant creek or waterway and 20 miles to the nearest bay - but no way in hell will I forego flood insurance because I live along the Texas coast and I know damn well that it may flood one day, especially with the amount of development in the greater Houston area that makes things worse. $1000 a year for flood insurance sucks to pay, but is pretty cheap compared to out of pocket costs for not having it if it ever does flood to a point that water gets in my house. The last 6 floods haven't caused me problems...but the next one may and not having a contingency for that is just stupid given where I live.

Now, if it were a case of Barker or Addicks filling up and the levee or control structure fails because the Corps didn't do the proper maintenance or ignored protocol and procedure, that's a completely different story because it is implied and expected that they do their job to maintain the infrastructure they own and develop. But that wasn't the case here that I'm aware of.

The goal of the reservoirs are to limit or prevent flooding downstream. The issue was not concerns upstream and potential flooding.

A long list of agencies screwed up in allowing construction in the pool zoom.

During Harvey they allowed pooling to occur until the dam was showing concerns of failure and then the gates were opened which caused down stream flooding. The rainfall totals exceeded the design capacity for the dams.

I think the bigger problem with the downstream residences is that the original 1940 plan for the reservoirs included a channelized canal Gessner and Briar Forest that went way south and could have taken a lot more flow (likely).



This obviously was never built as well as the white oak dam and northern canal that would have allowed more water to be diverted.

Not to mention, not building the tunnels when they tore up 10, 20 years ago.

Also, this:

https://riparianhouston.com/2017/09/03/the-history-of-addicks/

Quote:

---

Many have asked me why residential and commercial development was allowed to occur to the west of the impoundment area. I think there were and are a variety of reasons.

First, the impoundment area was originally sized with the expectation that the blue conveyance systems shown in the graphic above would be constructed and that the White Oak Reservoir would be constructed to reduce the volume of water conveyed by the lower section of Buffalo Bayou. This led to the federal government only buying the acreage they thought they needed given the discharge capacity of the blue conveyance system.

---

The problem with the dams is that when the government built them, it essentially created this "easement" because when the dams were full, water would be impounded, but they never actually paid anybody for that right or put it officially in the title to the land. The government asserted this right over these properties merely by building the dams. However, the fact that this had happened was ignored by all government agencies. The federal government didnt want to pay to buy or pay for an easement or buy any more property outright, and figured that rice farmers or whoever was back there didnt really care, and the local governments never wanted to care because doing anything that would slow development would harm their future tax revenues from development. So everyone ignored the problem until, finally, the federal government was forced to assert their right to impound water on these properties.

The government needs to pay something. $85,000 might be a reasonable fee for such an easement. If these properties actually flood like only once every thousand years (ie 0.1% annual risk or whatever) then that might actually be pretty close to market value of such an easement? I don't know. Now if what many of us suspect, that flooding is going to happen more and more often, that really might not be enough, but regardless, the maximum amount it could be is the full buyout value of the property. For many of these places $85,000 is probably more than the entire land value of the lot and maybe up to like fully one third of the total market value of the home. Is that fair compensation? It might be. And then when they sell, its clear that the Corp of Engineers has an easement, so the next person just simply buys it for less than they would if it was unencumbered, and they get FEMA flood insurance based on the likelihood that the property will flood just like everyone else does that lives where it could flood, but mostly it doesnt.

Downstream is different, their property is not encumbered by the dams, it is actually protected by the dams. You dont get to sue someone who's dam has protected your property from flooding a thousand times because, just once, it finally rained too much for the dams to hold back any more.

You certainly can when it's a conscious decision to protect homes inside the reservoir vs the homes that were supposed to be protected

terradactylexpress said:

---

You certainly can when it's a conscious decision to protect homes inside the reservoir vs the homes that were supposed to be protected

---

But it wasn't to protect homes inside the dam, it was to prevent catastrophic failure of the dams.

Yeah that's different, not sure I believe it though. Maybe at one point

We might not agree on wolves but we certainly agree on this!

Yeah, the catastrophic failure of the dams was closer than I think a lot of people realize. It doesn't take much before water creates an irreversible failure. See the Oroville dam in Cali. If a significant amount of water had gotten around the emergency spillways, it would have been an unspeakable tragedy.

My house is at an elevation that would allow for about an inch of water throughout my house if the reservoir ever spilled over. At no point were we informed about this when buying and there are no noticeable landmarks that would indicate such an issue. The chances of that ever happening in my lifetime are slim but damn.

TarponChaser said:

---

terradactylexpress said:

---

You certainly can when it's a conscious decision to protect homes inside the reservoir vs the homes that were supposed to be protected

---

But it wasn't to protect homes inside the dam, it was to prevent catastrophic failure of the dams.

---

That's not what the state, the ACoE, or even people at the time were saying.

How do Addicks & Barker Reservoirs work?

Quote:

---

In order to minimize upstream flooding, risks of spillway overflows from the reservoirs, and the risk of further rainfall exceeding the reservoir capacity, the Army Corps of Engineers released water at a controlled rate through the outlet gates during and after Harvey. The combined amount of water released through the gates of both dams exceeded 15,000 cubic feet per second (cfs), well above the capacity of Buffalo Bayou, resulting in flooding in neighborhoods downstream of the dams.

---

After all these years, people are still confused by the statement in the press conference that it was being opened to prevent "dam failure". The mental image of a tidal wave wiping out everything down Buffalo Bayou is what people think of. "Dam Failure" was defined as an uncontrolled release of water. By that definition, water going over the spillway was a "dam failure", even though that is the exact purpose of the spillway.

If water had gone over the spillway, it would have impacted White Oak and Bray's Bayou. The decision was to flood out portions of Buffalo Bayou and spare those bayous. In addition, it was to spare further homes in the basin. The irony in that is that the deliberate decision to flood portions of Buffalo Bayou was the very thing the reservoirs were constructed to prevent.

For reference, here is a link to a story about the dams written at the time, just to justify that the link above is not revisionist history.
Houston's Big Dams Won't Fail. But Many Neighborhoods Will Have to Be Flooded to Save Them.

And what would have happened if the dams did not exist at all?

Answer...these same houses (and more) would have flooded.

The houses in cinco probably wouldn't have flooded because the water would just have continued downstream. There would have been no barrier to back up water to the west.