Editor's note: this article has been updated to clarify an argument by Eric Nowak.
ANGLETON — Richwood residents packed the 23rd District Courtroom benches Monday to hear their lawyer argue that a lawsuit based on flooding caused by Hurricane Harvey should be allowed to stand.
The complaint claims actions by Lake Jackson and Velasco Drainage District staff caused the flooding in hundreds of Richwood homes in late August and early September 2017, as water from the most significant tropical cyclone rainfall event in U.S. history made its way to the Gulf of Mexico.
Eric Nowak, the lawyer representing more than 400 residents who signed onto the lawsuit, told the court he stood ready to call witnesses to say they asked workers to stop pumping water across FM 2004, but they refused.
Judge Ben Hardin said he would not hear any witnesses during the hearing, but recommended the representation for the residents, city and district meet privately to set about a three-month timeframe for discovery in the Ricky Adaway, et al vs. City of Lake Jackson, et al civil lawsuit.
There are now 422 plaintiffs in the class-action lawsuit, according to online records.
The lawsuit alleges Lake Jackson and Velasco Drainage District officials closed a flood gate on the south side of FM 2004, constructed a temporary dam with sandbags and used pumps to move water from the south to north side of the road, which kept floodwater out of Lake Jackson and caused it to flood the plaintiffs’ homes in Richwood.
Barry Abrams, representing Lake Jackson, argued Hardin should deny the lawsuit’s right to proceed because the claimants all live in a 100-year floodplain and Harvey brought a 500-year flood.
The pumps cited in the filing attempted to get water to flow from south to north on Bastrop Bayou, which is where it normally flows, Abrams said. A study conducted by an engineer showed this pumping had no impact on the surface level of the flood and didn’t even work successfully, he said, comparing the effort to spitting in the Gulf of Mexico.
Nowak argued the pumping did work, since a portion of Lake Jackson in the 100-year floodplain did not flood.
An engineering studying from the defense showed that 120,000 gallons would flow through the floodgates when one is halfway open, Nowak said. By Nowak's calculations, if three gates were fully open for a day, 177 million gallons of water would naturally flow toward Lake Jackson, he said.
Since three gates were closed for 10 days, that disrupted 1.7 billion gallons of water, Nowak said. Blocking that flow prevented Lake Jackson from flooding, showing their tactics worked, he argued.
Water flows south to north on Bastrop Bayou outside of flood conditions, and the floodgates prevent backflow, Abrams said.
The causation element of the flooding is what the city denies, Abrams said, adding water from the Brazos River came through Bastrop Bayou and flooded the homes.
Richwood’s mayor warned residents there would be flooding before any of Lake Jackson’s actions, Abrams said.
Judy Hailey, a plaintiff and Sherwood Forrest resident who attended Monday’s hearing, said her house would not have flooded if the water wasn’t pumped over 2004. She watched the water come from the highway and toward her house, she said, and was in shock because she had never seen it come that way.
A foot of water sat in her home for days, Hailey said.
“That was a situation I hope I’m never in again,” she said.
The lawsuit is to prevent the defendants from ever doing the same thing again, Richwood Advisory Council Chairman Kevin McKinney said outside the hearing.
It’s a complex issue that needs to be decided sooner than later, Hardin said, before ending the hearing and suggesting the lawyers come up with a plan to finish discovery quickly.