August 25th was an especially frightening day for southeast Texas as Harvey made landfall as a category 4 hurricane. By August 26th Harvey was downgraded to a tropical storm, but it’s impact left the Houston area behind with catastrophic flooding. While many Houstonians were prepared for the potential damage that would come with this storm, there were families left without adequate resources and knowledge on the dangers of flooding from two local reservoirs. During Harvey, Houston was inundated with heavy rain which this city had not seen before. “The amount of rain that has fallen could fill the Astrodome 3,200 times,” said meteorologist Jeff Lindner of the Harris County Flood Control District (HCFCD).

 

The Addicks and Barker Reservoirs

In the 1940s, the US Army Corps of Engineers (USACE) built the Addicks Reservoir and Barker Reservoir to hold back the Buffalo Bayou after the flood of 1935. Unfortunately, these reservoirs were only built to keep the downtown Houston area dry. During the hurricane, the reservoirs water levels rose incredibly fast. The USACE made the decision – knowing the risk of doing so – to start releasing this water. They started releasing at a rate of 1600 cubic feet per second (cfs), which eventually increased to a combined total of 13,000 cfs.

 

 Who’s Been Affected?

West Houston has been hit particularly hard by the emptying of these reservoirs. Those who have been directly affected by this flooding are outraged. Residents from neighborhoods such as Nottingham Forest VIII, Lakeside Forest, Memorial Thicket and Fleetwood are already filing Inverse Condemnation lawsuits against not only the Harris County Flood Control District and the City of Houston, but the United States Federal Government as well. Many residents from Canyon Creek in Cinco Ranch held protests on Saturday, September 2nd, demanding justice and rightful compensation for the property that was taken away from them. Many of these residents did not have the proper insurance to cover the damages because they were not aware that the reservoirs would affect them. “Who’s going to help us? What is going to happen? I don’t have flood insurance and obviously I don’t have the money,” said Susan Garcia. FEMA has offered grants for up to $33,000, but for many property owners, this is not nearly enough to cover everything.

  

The Aftermath of the Releases

Releasing the reservoirs at this rate caused many homes and business, who were otherwise dry and undamaged from the storm, to take on several feet of flood water. It is important to remember that most of the reservoir-related flooding happened on the first day, August 28th, Houston had seen sunshine after several days of downpour. It is said that there will be a gradual reduction of the reservoir releases to take place until approximately September 15th. If there were to be more rainfall before the reservoirs are emptied, it may be necessary to have higher releases again. The communities affected by these releases have been left with a significant amount of property damage and/or no power, causing their properties to be inhabitable.

 

Inverse Condemnation – What Is It?

An inverse condemnation occurs when the government “takes” private property but fails to pay the compensation required by the 5th Amendment of the Constitution, so the property’s owner has to sue to obtain the required “just compensation.” In an inverse condemnation case, the property owner is the plaintiff (as opposed to the usual condemnation claim where the government is the plaintiff and sues the property owner in order to take his or her property).

 The Law

 Both the United States Constitution and the Texas Constitution prohibit the taking of someone’s property without just compensation. U.S. Const., amend. 5 (“private property [shall not] be taken for public use, without just compensation.”); Tex. Const., Art. 1, § 17 (“No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.”). As the Supreme Court has stated, “the right to acquire and maintain private property is among our most cherished liberties,” City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2015), and “the right to undisturbed enjoyment of residential property is all the more sacred.” Id. “The preservation of these property rights is ‘one of the most important purposes of government,’ but the government has other obligations as well, including ensuring the safety and security of its citizenry.” Id. (internal citations omitted). Normally, a government (or government entity) is immune from suit unless that immunity has been waived. The Texas Constitution waives immunity with respect to an inverse condemnation or takings claim, so long as it is properly pleaded. In order to succeed on such a claim, a plaintiff must allege and prove that the governmental entity (here, the Corps) (1) intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in taking, damages, or destroying the plaintiff’s property (3) for public use. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 581, 598 (Tex. 2001); Harris County Flood Control District v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (plaintiff must prove that government “intentionally took or damaged their property for public use, or was substantially certain that would be the result.” Importantly, in order for the government’s actions to “taking” that obligates government compensation, the government must have known that its specific act (the release of water from the reservoirs) would cause “identifiable harm” or that that the harm was “substantially certain to result.” Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004). Mere “negligence” on the part of the government is not enough to constitute a “taking.”

 

We Are Here to Help You

“This storm has been extremely difficult for many of us Houstonians. However, it should not have to be this difficult for those of us who have been flooded out by the reservoirs releases. If you or a loved one have been affected by the reservoirs flooding, please give The Merman Law Firm a call. We want to help you get the compensation you deserve.”