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Subdivision Flooding 
A new house that floods can be as bad or worse than a fire. At least a fire will not likely happen again whereas a house that floods may be in store for many more flooding events in the future. Surely, not all flooding may be someone else’s fault. But there are countless situations where new homes flood and the builder knew of the flooding or the developer did little if anything to put in sufficient drainage. If you bought a new house or a used home that floods, what did the seller, builder or developer know about flooding before you bought your home? Or just as importantly, what should a builder or developer have known about flooding of your home or neighborhood? It is never reasonable to expect that a neighborhood will flood.

DEVELOPERS MUST PREVENT FLOODING

A developer has a duty to anticipate flooding conditions and install the necessary drainage to prevent flooding. The State of Texas requires all subdivisions developers to provide sufficient drainage for the development. The enforcement of this requirement is left to the cities and counties, but developers can and do submit drainage plans that are never implemented. Developers may ignore the entire watershed that contributes water to the area by failing to look upstream. Or developers may fail to follow engineering plans for drainage meant to prevent flooding.

If an area is in the FEMA flood plain or zoned for flooding, all of the housing in the area has to be built above the BFE or Base Flood Elevations. The BFE or Base Flood Elevation is the elevation above sea level that the National Flood Insurance Program deems will flood or is likely to flood. Consequently, a subdivision developer must either NOT build in the floodplain or accommodate the situation by adding fill or requiring houses to have their base floor above the BFE or Base Flood Elevation.

A subdivision can flood by what is called a “geologic flood plain”. This simply means that the subdivision is flooding from the natural flow of water across the land as it drains to a tributary. Sometimes, this is referred to as sheetwater because the water flowing across the land has no banks or beds. By contrast, a river, stream, bayou, creek or other tributary has defined banks and a bed that the water flows through and on. When a river, stream, bayou, creek or other tributary floods, the water rises above the banks. With sheetwater flow, the water moves across the land in a much broader and undefined manner.

A subdivision developer is responsible to determine whether geologic flood plains will affect the development as much as flooding from rivers, streams, bayous or other tributaries that rise above their banks. If your subdivision is flooding from any source, it is not per se the developer’s responsibility. However, it is probably worth investigating.
 
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Evin G. Dugas - Attorney at Law 512.261.0044 Evin@housedefects.com
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