Damage Control

White Oak Bayou is 25 miles long, from its sluggish rise in northwest Harris County to its concrete-lined terminus in downtown Houston. In September 1998, a band of thunderstorms aligned themselves with the White Oak and, after gathering the power and fury of Tropical Storm Frances, raked a southeasterly path across the county, through downtown and into Pasadena.

The flooding of White Oak Bayou started in Jersey Village just before dawn. By mid-morning, 1,167 houses in the watershed were damaged, with the worst flooding occurring upstream of North Houston-Rosslyn Road. Entire neighborhoods were decimated in that reach of the bayou: 400 homes flooded in Woodland Trails West, 196 in Woodland Oaks, 200 in Jersey Village, another 100 in Creekside Estates. Most of the houses had never flooded before. According to the flood insurance rate maps in effect at the time, most of them were outside the 100-year floodplain, so, accordingly, residents didn't see any particular need for flood insurance.

In the storm's aftermath, flooded homeowners blamed upstream real estate development, specifically about 2,500 acres of mostly residential subdivisions west of Fairbanks-North Houston Road. But in its November 17, 1998, "General Report" on the storm, the Harris County Flood Control District noted that the home builders were required to construct on-site storm-water detention ponds that reduced the amount of runoff that went directly into the bayou. And, the district's report said, prior to Tropical Storm Frances, the county had built large detention basins as part of a regional storm-water management plan for White Oak Bayou. The new detention had saved an estimated 1,000 homes from flooding, according to the district, which concluded that, given the "unprecedented" magnitude of Frances -- the storm appeared to establish record rainfall and flood stages along the White Oak -- extensive flooding was probably inevitable.

But the district's General Report on Frances, comprehensive as it appeared to be, didn't disclose everything district officials knew about the disastrous White Oak Bayou flood of September 1998. The district's on-site detention policy, for instance, had done little to protect the neighborhoods that suffered the most damage. Much of the upstream development the policy was aimed at didn't actually have on-site storm-water detention. Some developers had their construction plans approved before the policy went into effect. Others opted instead to pay a $3,000-per-acre impact fee, with the understanding that the flood control district would build the detention as part of the White Oak Bayou regional plan.

But that plan didn't offer the victims much flood protection either. The plan's detention basins originally were designed to reduce flooding between Jersey Village and North Houston-Rosslyn Road. But less than one-third of the 160 acres of storage capacity had been constructed by September 1998, by which time thousands of acres of undeveloped land in the watershed had been paved over with concrete.

The district's report also neglected to point out that county drainage officials knew as far back as 1991 that, because of development in the watershed, hundreds of uninsured homeowners were unknowingly living in an unmarked floodplain. Rather than alert residents that flood insurance might be in their best interests, the district withheld the information until new flood insurance rate maps took effect -- in April 2000.

Ed and Norma Jean Kerr undoubtedly would have had insurance if they had known their house was in the floodplain. The Kerrs had lived in Woodland Trails West, just south of the bayou, since 1980, but had never come close to flooding. Ed, an electrician, came home from work September 11, 1998, to find six inches of water in the house and Norma Jean standing by the back door with a broom.

"She had been there all day, trying to push the water that was coming through the front out the back," Ed recalls.

The Kerrs complained to a friend, who put them in touch with Jim Blackburn, a high-profile environmental lawyer and activist who has done extensive research on the history and policies of the Harris County Flood Control District. After meeting with Blackburn, Ed and Norma Jean recruited more than 300 of their neighbors and filed a class-action lawsuit against the district and more than a dozen developers and engineering consultants.

The suit alleged that the district's failure to enforce its own policy and carry out the White Oak Bayou regional plan had, in effect, condemned the residents' homes as storm-water detention basins for upstream development. Blackburn claims that the district's actions -- or, in this case, lack thereof -- amount to a "taking" of private property that is not allowed under the state's constitution without compensation.

"My view is, the county was just hoping people wouldn't flood," Blackburn says. "I don't think hoping people won't flood is sufficient to get around liability under the Texas Constitution."