As of September 8th, Hurricane Harvey had claimed the lives of at least 70 people, after dumping nearly 45 inches of rain in South Houston alone. Experts say this is actually a surprisingly low toll, due to the fact that most people in the path of Hurricane Harvey heeded warnings and first responders and volunteers acted quickly to help those in need.
Floodgates which were installed around hospitals, kept critical power on, and Houston leaders—perhaps learning from Hurricane Ike—did not call for a mass evacuation in an area with 6.5 million people. Harvey was the first hurricane which reached a Category 3 or stronger, to make landfall, since Hurricane Wilma struck south Florida. Although Harvey’s devastation has come to an end, Houstonites will be feeling his impact for many months—or years—to come.
Barker and Addicks Reservoirs—Protecting Houston Residents?
Satellite images of Houston show two major flood-control reservoirs on either side of the Katy freeway—the Barker and the Addicks. These reservoirs were designed to protect Houston residents from floodwaters, by draining excess water away from the city, however a Hurricane Harvey was not in the plan. In fact, the Addicks and Barker reservoirs were completed just after the second world war, after the city of Houston had endured two “cataclysmic” downtown floods. At that time the reservoirs were dry, wooded areas with creeks running through them, and officials could plug the reservoirs to keep the rainwaters from reaching Buffalo Bayou.
Unfortunately, Hurricane Harvey caused the reservoirs to fill much faster than they could empty, plus the areas surrounding the reservoirs today are very different than when they were built. Developers have built homes right up to the brink of the reservoirs, and because of a decision made by the Army Corp of Engineers, these homes may be impacted for an extended period of time as water is released from the overfull reservoirs. The Army Corp of Engineers believes this process could take from one to three months.
Army Corp of Engineers Chose “Controlled Release” of Water from Reservoirs
According to the Harris County Flood Control District, the Addicks and Barker reservoirs have “protected greater Houston area residents against loss of life and property over the last 70 years.” Hurricane Harvey may have ended that protection in a big way. There are essentially three places for the excess floodwaters to go: through the dam gates, down the emergency spillways, or upstream into people’s homes, although all of will eventually reach the Buffalo Bayou. The Army Corp of Engineers made the decision to release water from the Addicks and Barker reservoirs in a manner which is now flooding residential areas—homes that had not been flooded by Harvey until the waters were released. More than 4,000 cubic feet per second was released from each reservoir over a 6-10-hour period, flooding the surrounding homes which have replaced rice farmlands and cow pastures.
The Army Corp of Engineers say the pavement which replaced the wetlands essentially left floodwaters with no place to go, therefore the water in the reservoirs had to be released. The San Jacinto River Authority did essentially the same thing in Kingwood, when they performed a “controlled release” of water from Lake Conroe. One person associated with the SJRA admitted that “we understand there will be devastating flooding downstream but we don’t have the option to stop releases to avoid the catastrophic consequences.” Whether the release of the reservoir water was absolutely necessary is debatable, however what is not under debate is that homes which had been relatively protected from Harvey’s wrath—and because of this, many residents had taken in people from other flooded parts of the city—are now suffering the same devastation.
Controlled Flooding Property Damage/Destruction
The Army Corp of Engineers’ decision to release water from the Addicks and Barker reservoirs has been called “unprecedented.” In fact, this is the first time officials have conducted a release of reservoir waters while the rain was still coming down. Officials say the release was necessary to avoid the collapse of the reservoir dams, which would flood downtown Houston. Residents received notice of the pending drainage of the reservoirs on Sunday, and were even told that the “controlled release” of the water would flood the streets, and, most likely, their homes.
Rather than trying to evacuate the areas at night, officials told residents in the area to stay in their homes through Sunday night, however suggested those residents leave on Monday morning. Those who live adjacent to the Addicks and Barker reservoirs were told to remain home unless advised to evacuate, to secure all their valuable, to keep their children out of the floodwaters, and, when possible, to avoid driving in waters of unknown depths.
Buffalo Bayou has reached an all-time peak of 62.7 feet, and Harris County Flood Control District believes it will be like that for up to two weeks as the reservoirs are drained. At least 3,000 homes near the Addicks reservoir and 1,000 homes near the Barker reservoir have been inundated with water following the “controlled release.”
Eminent Domain and Inverse Condemnation
When a governmental entity has the “right” to seize private land from an individual or company without consent from the owner, they are exercising their right to eminent domain and/or inverse condemnation, depending on the circumstances. Eminent domain is usually exercised when a private corporation or a government entity wants to construct something which would provide benefit to the public. The government or other entity must follow a specific procedure to acquire the property, paying the owner a “fair” price as compensation. Unfortunately, the definition of “fair” can vary significantly between what the government or business thinks is fair as opposed to what the owner of the property thinks is fair.
Inverse condemnation is the taking of private property without following eminent domain procedures and without paying just compensation. Inverse condemnation may not even involve the permanent physical taking of the property, rather can include a temporary “taking” such as when a governmental entity floods the property or burdens the property in such a way that the owner is unable to derive any economical use from the property. The flooding of the homes in the Addicks and Barker reservoir areas could be seen as an inverse condemnation procedure. When a government entity has engaged in inverse condemnation without following the eminent domain process, the affected property owner may bring an inverse condemnation lawsuit against the government entity for controlled flooding property damage/destruction.
Houston Controlled Flooding Injury Lawyer
If your home was flooded when the Army Corp of Engineers released water from the Addicks or Barker reservoir, or when the San Jacinto River Authority released water from Lake Conroe, you could be entitled to file an inverse condemnation claim, or a Houston controlled flooding injury lawsuit. Three lawsuits have already been filed, accusing the U.S. Army Corps of Engineers with knowingly condemning their properties when they released water from the Addicks and Barker reservoirs. At least one of the lawsuits is likely to develop into a mass action lawsuit to compensate homeowners within the areas flooded by the controlled releases. One resident noted “When they make a choice to flood one area to save another, it’s their responsibility to pay for the consequences.” In other words, when a government entity makes a willing choice to save one area over another, they must pay for the resulting damages.
A lawsuit filed in state court targets the City of Houston and Harris County Flood Control District for property loss compensation. These cases and others which are likely to come will probably boil down to knowledge and intent. The question will be whether the Army Corp, the City of Houston, and the Harris County Flood Control District was aware of what they were doing, and whether they intended to cause the flooding that damaged thousands of otherwise undamaged homes. The government can’t “accidentally” take your property—if the lever to the dam or gates was accidentally opened, that would be considered negligence, rather than “taking.”
Contact a Houston Controlled Flooding Injury Lawyer
As a Texas residential property owner, you have certain rights; if your home is in the areas north and west of Addicks Reservoir, west and south of the Barker Reservoir, or a residence downstream affected by Buffalo Bayou’s rising waters, you could benefit from speaking to an experienced Houston controlled flooding injury lawyer. You may have an inverse condemnation claim, and could therefore be eligible to file a Houston controlled flooding injury lawsuit.