Hurricane Harvey Addicks and Barker Reservoir Lawsuits

Hurricane Harvey brought massive destruction to the Greater Houston area and beyond. A week after Hurricane Harvey saturated Houston with historic rainfall, residents around the Addicks and Barker reservoirs who were previously dry were inundated with massive flood waters. The sudden post-flood, flood was due to the U.S. Army Corps of Engineers releasing water from these two reservoirs.

The Corps of Engineers usually releases water from the dams at the rate of 2,000 cubic feet per second, but the record-shattering 51 inches of rain Harvey dumped on Houston, starting Aug. 25 and continuing for four days, forced the Corps to increase the rate to 13,000 CFS.

Officials said they had to drain the dams quickly to reduce the risk of a breach that would cripple downtown Houston, and to make room to absorb rainfall from more storms during hurricane season, which usually runs from June until November in Texas.

Now, residents in these areas are seeking help from attorneys under the legal doctrine known as "inverse condemnation." Inverse condemnation occurs when (1) a property owner seeks (2) compensation for (3) property taken for public use (4) without process or a proper condemnation proceeding." City of Houston v. Norcini, 317 S.W.3d 287, 292 (Tex. App.-Houston [1st Dist.] 2009, pet. denied) ( quoting Villarreal v. Harris Cnty., 226 S.W.3d 537, 541 (Tex. App.-Houston [1st Dist.] 2006, no pet.)); see City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex. 1971).

To state a cause of action for inverse condemnation under the Texas constitution, a plaintiff must allege (1) an intentional governmental act; (2) that resulted in his property being taken, damaged, or destroyed; (3) for public use. Gen. Servs. Comm'n, 39 S.W.3d at 598.

An act can be "intentional" if the government is substantially certain that its conduct will cause a certain result. That is, if the government knows that specific damage is substantially certain to result from its conduct, then takings liability may arise even when the government did not particularly desire the property to be damaged. Jennings, 142 S.W.3d at 314. Thus, when a governmental entity physically damages private property in order to confer a public benefit, that entity may be liable under Article I, section 17 if it (1) knows that a specific act is causing identifiable harm or (2) knows that the specific property damage is substantially certain to result from an authorized government action-that is, that the damage is "necessarily an incident to, or necessarily a consequential result of" the government's action. Tex. Highway Dep't v. Weber, 219 S.W.2d 70, 71 (Tex. 1949); accord Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004).

Reich & Binstock believes these elements have indeed been met. The element of intent is clearly met. In a press conferences in the wake of Hurricane Harvey, the Army Corps of Engineers was straightforward about the fact that they knew homes were going to flood from the releases from the reservoirs. Statements on the Corps website also indicated federal officials had knowledge that flooding would happen. Additionally, the Harris County Flood Control District said that "the release is expected to start flooding homes around the Addicks and Barker reservoirs on Monday morning."

The public purpose element is also met. That the use was for public purposes is shown by the comment of Col. Lars Zetterstrom, Galveston District commander of the Corps, who stated: "If we don't begin releasing now, the volume of uncontrolled water around the dams will be higher and have a greater impact on the surrounding communities." The Corps of Engineers also said it needs to release water now to prevent uncontrolled water flowing from the dams.

The destroyed or damaged element is met as well without a further explanation needed (homes and businesses were flooded).

Read the full report at the financial impact of Hurricane Harvey on Houston Households provided by Houston Public Radio and JPMorganChase Institute. Chase analyzed transaction data from a million checking accounts to measure the economic hit of Harvey. http://bit.ly/2t6THCK

Where Do I Go for Help?

If you or a loved one was injured or lost your home, business or property by the opening of the Addicks and Barker reservoirs, contact our lawyers for a free and confidential case evaluation. We have extensive experience in Flood Litigation having litigated most of the major flood events that have impacted Harris County over the past 30 years. We are representing each client individually and not as part of a class action. Call 713-533-8665 or 877-643-3099 toll free or complete the contact form on this website.

If you have suffered losses due to Hurricane Harvey, click here to learn how Reich & Binstock in Houston can help you file a lawsuit against your insurance company that has denied your hurricane insurance claim in bad faith.