Why Homeowners Flooded From the Addicks and Barker Reservoir Releases Have a Right to Recover their Property Damages From Harris County Flood Control and U.S. Army Corps of Engineers
On the morning of August 28, 2017, thousands of west Houston residents were likely relieved that their homes had been spared the catastrophic flooding that engulfed much of the city as a result of Hurricane Harvey.
Unfortunately, their relief was short-lived, as the U.S. Army Corps of Engineers—along with the Harris County Flood Control District—would soon begin an intentional release of up to almost 7 million gallons of water per minute from the Addicks and Barker Reservoir into the Buffalo Bayou.
Over the past several weeks, a number of Houstonians whose homes and businesses were devastated by the flooding from the reservoir releases—and a majority of whom do not have flood insurance—have contacted us to find out what rights they have against the entities responsible for the releases.
We wrote this article to provide a general overview of the law that applies when the government damages an individual’s home, business or other private property for the public’s benefit and to explain why we believe home and business owners whose properties were flooded by the Addicks and Barker Reservoir release may have a right to recover the cost to repair or replace their property from the Harris County Flood Control District and the U.S. Army Corps of Engineers.
What Happened at the Addicks and Barker Reservoirs?
Hurricane Harvey began affecting parts of Houston on Saturday, August 26, 2017. The storm remained stationary for approximately 5 days, causing over 50 inches of rainfall, unprecedented flooding, and catastrophic damage to over 40,000 homes and 1 million vehicles.
Unlike in the past, however, the flooding and devastation didn’t end with the storm.
At approximately 2:00 a.m. on August 28, 2017, the U.S. Army Corps of Engineers—working in conjunction with the Harris County Flood Control District—began releasing water from the Barker and Addicks Reservoirs into the Buffalo Bayou to prevent flooding in “surrounding areas.”
Less than 48 hours later, the Army Corps of Engineers and Harris County Flood Control chose to increase the releases from 718,000 gallons of water per minute to over 6 million gallons of water per minute, knowing that it would flood homes downstream that had not flooded during the storm.
As a result, over 4,000 homes along the Buffalo Bayou that had not flooded from the rainfall were inundated with water and, in some cases, almost entirely submerged.
The Law: The Government Cannot “Take” or “Damage” Private Property Without “Just” or “Adequate” Compensation.
Under both the Texas and U.S. Constitutions, the state and federal governments are prevented from taking, using, or destroying a person’s private property without just compensation.
“Condemnation” occurs when a government entity takes private property and pays the property owner just compensation.
When, as here, on the other hand, the government takes private property without paying the owner just compensation, the owner has a right to sue the government to recover the repair or replacement costs associated with the property under a legal theory known as “inverse condemnation.”
The claim is called “inverse” because, unlike with an ordinary condemnation, the government has already taken or damaged the property without compensating the owner, making it necessary for the property owner to sue to recover his or her damages.
To prevail in an inverse condemnation case in Texas, property owners must be able to prove the following:
- Intent: the government intentionally performed certain acts within its lawful authority;
- Causation: those acts resulted in the taking, damage or destruction of the property; and
- Public Benefit: the property was taken, damaged, or destroyed for public use.
Inverse Condemnation Claims Arise from the Taking of or Damage or Destruction to Private Property
Inverse condemnation claims can involve three distinct claims or causes of action:
(1) the taking of property
(2) the damaging of property, or
(3) the destruction of property
A plaintiff, in order to be successful, must only demonstrate that his property was taken, damaged OR destroyed.
The Army Corps of Engineers and Harris County Flood Control District’s Decision to Intentionally Flood Homes by Releasing Water from the Reservoirs Constitutes a “Taking,” which Requires Payment of “Just Compensation”
In order to meet the “intent” element mentioned above, property owners seeking to recover the repair or replacement costs of their property through an inverse condemnation case are required to prove that the government either
- intentionally took or damaged their property for public use, or
- was “substantially certain” that damage would result from its conduct
We point this out to emphasize that mere negligence by the government (i.e., failing to do what is reasonable under the circumstances) is insufficient to establish a taking claim.
Rather, the property owner must show that the government knew that a specific act would cause identifiable harm or that the harm was “substantially certain” to result.
Both Federal and Texas State Courts have Held that the Government’s Decision to Flood Private Property Can Constitute an Intentional Takings
Both Texas state courts and federal courts have held that the government’s decision to flood private property can constitute an intentional “taking.”
Historically, however, the courts required “recurrence” (more than “a single flood event”) in order to constitute a taking, but the Texas Supreme Court’s recent decision in Harris County Flood Control District v. Kerr suggests that a single flood may be sufficient to give rise to a takings claim, as long as the government knew that its conduct would flood a particular property or group of properties.
The Texas Supreme Court has also consistently acknowledged, either directly or indirectly, that a single flooding event can cause damage to private property, thereby supporting the “damage” theory of a taking/inverse condemnation.
Press Releases, Evacuation Notices and Other Publicly Available Information Suggest that Harris County Flood Control and the Army Corps of Engineers Either Intentionally Flooded the Homes Downstream or, at a Minimum, were Substantially Certain that Flooding Would Occur
Press Releases, news reports and other evidence that’s been make publicly available confirms that when the reservoir gates were opened on August 28, 2017, Harris County Flood Control and the U.S. Army Corps of Engineers:
- intentionally took or damaged homes downstream from the reservoirs, or
- were, at a minimum, substantially certain that the homes downstream would flood as a result of their decision to release up to 7 million gallons of water per minute into the Buffalo Bayou
For example, an August 29 press release issued by Harris County Flood Control District expressly stated that “Controlled Releases on Addicks and Barker Reservoir Increase Flooding Threat Along Buffalo Bayou.”
The following day, Harris County Flood Control issued another press release, stating
“Rainfall has mostly ended, but widespread house flooding in the thousands is underway across Harris County. This includes neighborhoods adjacent to Addicks and Barker reservoirs and along Buffalo Bayou, which have been impacted by historic releases from the reservoir outlets . . .
Residents along Buffalo Bayou . . . are urged to remain alert and take precautionary measures, as necessary.”
This, along with other evidence that we anticipate will be revealed during the lawsuits, should further corroborate and substantiate that both Harris County Flood Control and the Army Corps of Engineers intentionally chose to flood homes downstream to protect homes surrounding the reservoirs from additional flooding.
Homeowners and Business Owners Whose Properties Were Damaged Should Be Entitled to “Adequate” or “Just” Compensation in Texas and Federal Courts
For all practical purposes, the Texas and U.S. Constitutions are identical with respect to the governments’ obligation to pay for any damages caused by the taking.
Any difference is merely semantic: the Texas Constitution states that the government must pay “adequate” compensation, while the U.S. Constitutions requires “just” compensation.
It therefore follows that regardless of whether the inverse condemnation case is brought in Texas or federal court, as long as the property owner establishes the intent, causation and public benefit elements of their claim, they should be entitled to “adequate” or “just” compensation, which should equal the lesser of the repair or replacement cost of the damaged property.
Business owners who suffered flooding damage as a result of the releases may also be entitled to additional damages, including lost profits, if they can establish that Harris County Flood Control’s and the Army Corps of Engineer’s decision to release the water prevented them from being able to use the property to operate their business.
If Your Home or Business Was Damaged as a Result of the Releases from the Addicks and Barker Reservoirs, Contact our Undefeated Flood Damage lawyers for a Free Consult at 1-888-603-3636 or by Clicking Here.
If you have any questions about takings and inverse condemnation law, whether or not you’re entitled to bring an inverse condemnation claim, or simply want to discuss your options moving forward, call our Flood Damage Lawyers at 1-888-603-3636 or send us a confidential email through our “Contact” form by clicking here.
Having successfully recovered over $1 Billion and represented thousands of home and business owners who suffered flood and wind damage in hurricanes and other natural disasters, our Undefeated Flood Damage Lawyers have the resources and experience necessary to help ensure that you’re fully compensated for any property damages to your home or business caused by the reservoir releases.
Whether you just want to ask us some questions or you’re ready to move forward with a claim, our lawyers will remain available and continue to do whatever possible to help you determine the best options for you and your family going forward.
Contact our Experienced Flood Damage Lawyers at 1-888-603-3636 or Click Here to send us a confidential email through our Contact Form.