Tag: Barker Reservoir

Hurricane Harvey Damage Report

Harris County Flood Control District Releases Final Hurricane Harvey Damage Report

It’s been nearly a year since Hurricane Harvey devastated Houston and the rest of the Texas coast, and many are still recovering While all hurricanes cause significant damage, Harvey was particularly unique in that the storm stalled soon after it made landfall and dropped an unprecedented amount of rainfall. The Harris County Flood Control District has been working to collect and analyze data and recently released its final report on flood damage.

Unprecedented Rainfall

From August 25 through August 29, 2017, Hurricane Harvey dropped between 26 and 47 inches of rain across Harris County. This represents a trillion gallons of water. If you’re wondering just how much a trillion gallons of water is, it’s enough water to run Niagara Falls for 15 whole days.

According to the Harris County Flood Control District, this much water flooded 154,170 homes across Harris County, which is about 9% to 12% of the total number of buildings in the entire county. This number is particularly devastating considering nearly half of all of the homes flooded were outside of both the 100 and 500 year floodplains. After unprecedented rainfall, Hurricane Harvey ended up being the second-costliest hurricane in U.S. history, right behind Hurricane Katrina in 2005. 

Reservoir Flooding

With such large amounts of rainfall during and after Hurricane Harvey, Houston’s reservoirs and bayous quickly filled up and started flooding. In particular, the Addicks and Barker reservoirs caused catastrophic flooding to homes and businesses both upstream and downstream of the reservoirs. Property owners upstream of these reservoirs had no idea they were located in Addicks and Barker dry reservoirs and were shocked to learn land developers built homes in these dangerous areas. Properties downstream of the reservoirs also suffered serious flooding when the U.S. Army Corps of Engineers decided to begin controlled dam releases to reduce the amount of pressure on the dams and prevent total failure.

Still Recovering After Hurricane Harvey

It’s going to take several more years for Houston to completely recover from the devastation wrought by Hurricane Harvey. Raizner Slania LLP is a local Houston law firm helping Hurricane Harvey victims with a wide variety of claims. If your insurance company is denying your Hurricane Harvey property damage claim, or if your property was flooded by the reservoirs, contact us today to learn your legal options.

Hurricane Harvey Reservoir Flooding

Hurricane Harvey Upstream and Downstream Reservoir Claims Move Forward To Trial

Raizner Slania LLP is representing homeowners who were flooded as a result of the Addicks and Barker reservoir releases in the aftermath of Hurricane Harvey. Both homes upstream and downstream of the reservoirs suffered catastrophic flood damage as a direct result of the actions of the U.S. Army Corps of Engineers. There are a number of lawsuits against the Army Corps of Engineers to recover damages caused to properties; and, while the federal government has tried to have the lawsuits dismissed, judges overseeing the litigation have kept the lawsuits moving forward.

Federal Government Files For Dismissal

In February, the government filed motions to dismiss in both the Downstream and Upstream sub-docket claims regarding flooding caused by the Addicks and Barker reservoirs. The government essentially made three arguments for dismissal:

  1. There was not a constitutional taking of land because the government was “merely acting to mitigate or minimize an inevitable harm to the public” (both downstream and upstream);
  2. Plaintiffs lack a protected property interest in the property purportedly taken. In the downstream case, there is no right to keep land downstream of a flood-control dam free from floodwaters during an extreme storm; and, in the upstream case, there is no right to keep one’s land free from waters backing up from a flood control dam; and
  3. The court does not have jurisdiction over the claims because the case should be brought as a tort, not as a Fifth Amendment takings case (both downstream and upstream).

Essentially, the federal government argued these cases did not represent violations of the Fifth Amendment. The Fifth Amendment prohibits the government from taking private land for public use. In the Addicks and Barker Reservoir cases, property owners claim the Army Corps of Engineers intentionally allowed their homes to flood to prevent catastrophic damn failure from flooding much of downtown Houston. Property owners claim allowing their homes to flood constituted a taking of private land for public use.

Recently, both Chief Judge Braden (presiding over the Downstream sub-docket) and Judge Lettow (presiding over the Upstream sub-docket) issued orders deferring ruling on the federal government’s motions to dismiss until trial.

In the same order deferring her ruling on the motion to dismiss, Judge Braden set the trial for the 15 downstream test properties beginning April 8, 2019, and set various other deadlines for discovery and experts. The government has moved for reconsideration of this ruling, contending (among other things) the court should rule on the motion to dismiss before discovery closes. This motion for reconsideration faces long odds of success.

Although Judge Lettow technically deferred ruling on the motion to dismiss in the upstream case, he (unlike Judge Braden) addressed each of the government’s legal arguments in turn. Judge Lettow found in favor of the plaintiffs in nearly all respects. Two passages of his opinion were particularly favorable for the plaintiffs: In one, he specifically recognized the government “misstated Texas property law” with regard to flood control measures, citing a Texas Supreme Court case recognizing “where the government made a conscious decision to subject particular properties to inundation so that other properties would be spared, as happens when a government builds a flood-control dam knowing that certain properties will be flooded by the resulting reservoir[,] . . . of course the government must compensate the owners who lose their land to the reservoir.”

In his second point, Judge Lettow rejected the government’s argument that the plaintiffs cannot state a takings claim simply because the reservoirs were built decades ago. Judge Lettow focused on the government’s action in building and modifying the dams “in such a way that they could and did impound storm water behind the dams on both government and private property. That the government’s action bore fruit or had consequences only some years later does not obviate the reality that action, not inaction, is at issue.” Judge Lettow then entered a scheduling order setting trial for the 14 upstream test properties beginning February 19, 2019.

Although neither Judge Braden nor Judge Lettow explicitly denied the government’s motion to dismiss the cases, their rulings are helpful because they allow the plaintiffs to proceed with discovery. Judge Lettow’s opinion in particular gives reason for optimism because he explicitly rejected several of the government’s legal theories. We remain optimistic that the Courts will ultimately deny the motions, and allow us to proceed with trial on a full factual record for the test properties chosen in both cases in the Spring of 2019.

Get Help With Your Hurricane Harvey Reservoir Flooding Claim

The experienced lawyers at Raizner Slania LLP are working with property owners whose homes were flooded by the Addicks and Barker reservoirs. Our lawyers understand the unique legal complexities of each type of claim and are fighting hard for clients to help them rebuild. If your property was flooded, either downstream or upstream of the Addicks and Barker reservoirs, call us immediately to discuss your reservoir claim.

Harvey Reservoir Litigation

The Harvey Reservoir Litigation Schedule

The destruction caused by Hurricane Harvey is presenting many complex legal challenges. For homeowners and business owners, there are many uncertainties regarding repairing flood damage. While litigation can sometimes be slow, there have been significant strides made in processing Hurricane Harvey Claims, and a schedule has been put in place to keep the litigation moving forward.

The Court’s Efforts to Organize the Litigation 

On October 31, 2017, Judge Susan G. Braden entered an order creating a “Master Docket” entitled In re: Addicks and Barker (Texas) Flood-Control Reservoirs, Case No. 17-3000L. Although this is an organizational formality, its creation will enable the court and the parties involved to drill down on important scheduling issues in order to move the cases forward as quickly as possible. The cases filed within the master docket are now accessible on the court’s website. The court also conducted a hearing on November 1, 2017 in order to advance the organization and scheduling of the cases. Following that hearing, Judge Braden entered several orders.

Separation Into “Upstream” and “Downstream” Groups
The court has placed the upstream reservoir pooling cases and the downstream Buffalo Bayou corridor inundation cases on separate litigation tracks, recognizing the legal issues for these two groups are distinct. When the government files its initial motions to dismiss the claims, we expect to see them make separate arguments based on whether cases are upstream or downstream. For that reason, the court has also required the law firms involved to designate each of their filed cases as an upstream or downstream matter, and we have done so on behalf of our firm’s clients.

Near Term Motions to the Court 
The Court has outlined the following schedule to address 1) preliminary jurisdictional motions, and 2) dispositive motions for summary judgment. We expect the government to file both types of motions and engage in every effort to avoid these claims, including appeals. While it is possible the schedule may be disrupted for appeal or extended by the Court, the judge has set out a relatively brisk briefing schedule.

Hurricane Harvey Reservoir Claims Briefing Schedule:

  • December 8, 2017: The government will file a motion for more definite statement.
  • December 15, 2017: The parties will exchange mandatory initial disclosures.
  • December 29, 2017: Document exchanges.
  • January 15, 2018: Plaintiffs may file amended complaints in response to the government’s motion for more definite statement.
  • February 15, 2018: The government will file a motion to dismiss, likely on jurisdictional grounds.
  • March 15, 2018: Plaintiffs must respond to the motion to dismiss.
  • April 2, 2018: The government must reply to plaintiffs’ responses to motions to dismiss.
  • June 15, 2018: The government must file any dispositive motions, such as motions for summary judgment.
  • July 14, 2018: The Court will conduct a hearing on the motion to dismiss.
    July 16, 2018: The parties must respond to the government’s motions for summary judgment.
  • July 31, 2018: The parties may file replies to the motions for summary judgment.
    October 29, 2018: The Court will conduct a hearing on the motions for summary judgment.

Litigation, particularly against the government, tends to move fairly slowly. That said, Judge Braden’s experience during the Katrina litigation appears to have prompted her to establish an aggressive briefing schedule, and the critical motions to avoid liability should be resolved within the timeframes set out above. In the event plaintiffs are successful on these motions, the government has a right to appeal, and likely will. While firms like ours will do our best to move this forward quickly, the government will work equally hard to slow it down.

Hurricane Harvey Reservoir Lawyers

At Raizner Slania LLP, we know how Hurricane Harvey disrupted lives because we’re a local Houston firm that lived through it. We have nationwide experience helping homeowners and business owners in a variety of insurance damage claims, and we are dedicated to helping the people of Houston recover after Harvey. If Harvey flooded your home or business, contact us today. We can help answer any questions you might have and pursue compensation on your behalf.

Hurricane Harvey Claim

Houston Residents File Upstream Addicks and Barker Reservoir Flood Lawsuit

Raizner Slania has filed a lawsuit on behalf of several Houston residents against the U.S. government after their homes were flooded by the collection of floodwaters in the Addicks and Barker reservoirs in the aftermath of Hurricane Harvey.

When the reservoirs were constructed, they were designed to hold large amounts of rainwater and they have spillways at fixed elevations. The Addicks reservoir has a spillway at 108 feet and the Barker reservoir has a spillway at 104 feet. The reservoirs have design pool capacities of 115 feet for the Addicks reservoir and 106 feet for the Barker reservoir. All land behind the reservoirs under these elevations is potentially inside the reservoirs and at risk for flooding.

Realizing the reservoirs would occasionally need to store massive amounts of floodwater, the United States government began acquiring property inside the reservoirs in the 1940s. However, the government did not purchase all land inside the reservoirs. Instead, the government only purchased land up to 103.2 feet in elevation behind the Addicks reservoir and up to 95 feet behind the Barker reservoir.

The government did not purchase or otherwise obtain any right in land between 103.2 feet and 115 feet in elevation in the Addicks Reservoir or between 95.5 feet and 106 feet in elevation in the Barker Reservoir, even though it was likely floodwaters would need to be stored on private property within the reservoirs at those elevations.

In the aftermath of Hurricane Harvey, the Addicks and Barker reservoirs captured more than 350,000 acre feet of water to prevent flooding downstream of the reservoirs.

The water level in the Addicks reservoir reached 109.1 feet during Hurricane Harvey. Even though the government only owned property up to, at a maximum, 103.2 feet, they intentionally impounded floodwaters on private properties above 103.2 feet. The water level in the Barker reservoir reached 101.5 feet during Hurricane Harvey and its aftermath. The government only owned property up to, at a maximum, 95.5 feet, but allowed floodwaters to be stored on properties above 95.5 feet.

The floodwaters stored in both the Addicks and Barker reservoirs exceeded the boundaries of the property owned by the government. Affected property owners at these elevations did not consent to the use of their property for storing floodwaters. As a result, thousands of properties upstream of the reservoirs were flooded in many feet of water.

In addition to flood damage, property owners are left with an increased risk of future flooding and will be unable to rebuild their properties without incurring significant additional expenses. Property owners who wish to transfer or sell their property will likely struggle to do so, or will be unable to do so without taking a significant loss because of the decreased demand for property in the area and the increased difficulty in obtaining flood insurance in the area.

The government allowing floodwaters to be stored above its own designated property boundaries constitutes a taking of private property by the government for public use. Under the Fifth Amendment, property owners must be fairly compensated for the taking of their property.

Get Help Filing Your Hurricane Harvey Claim

If your property is located upstream of the Addicks or Barker reservoirs and was flooded during and after Hurricane Harvey, you have a right to receive just compensation. The Hurricane Harvey lawyers at Raizner Slania LLP are working with property owners across Houston to help them get them the compensation they are legally entitled to. Call us today for a free consultation to discuss your claim.

Hurricane Harvey Reservoir Lawyers

Homeowners’ Association Files Hurricane Harvey Claim

Raizner Slania has filed a lawsuit on behalf of a homeowners’ association and individual condominium unit owners after the Addicks and Barker reservoirs releases flooded the multi-family property in the aftermath of Hurricane Harvey. The property consists of 32 individually owned buildings, each with four separate residential units, along with common areas such as a community clubhouse, swimming pool, tennis courts, gardens, and more.

Dams Were Under Renovation When Hurricane Harvey Hit

In 2009, the dams holding back the Addicks and Barker reservoirs were deemed to be in “extremely high risk of catastrophic failure.” When Hurricane Harvey hit Houston in late August 2017, both of the reservoirs and their dam systems were in the middle of a $75 million renovation.

Both the Addicks and Barker reservoirs are “dry reservoirs,” meaning the dams are normally left open. The dams are only closed when the area receives heavy rainfall. The dams were closed as Hurricane Harvey dropped an unprecedented amount of rainfall across the Houston. The reservoirs took on hundreds of acre-feet of water from Harvey’s rainfall and it put tremendous pressure on the dam systems.

The U.S. Army Corps of Engineers owns and operates the dam systems, and decided to let water pool within the reservoirs, inundating properties upstream of the reservoirs with floodwaters. However, several days after Hurricane Harvey made landfall, the pressure on the dam systems was so great that the Army Corps of Engineers decided to release floodwaters into Buffalo Bayou, which inundated thousands of homes and businesses downstream of the reservoirs.

Inverse Condemnation and the Fifth Amendment

Under the Fifth Amendment of the U.S. Constitution, the government is not allowed to take private property for public use without properly compensating property owners. When property owners are not compensated for the taking of their property by the government, it is referred to as inverse condemnation. When the Army Corps of Engineers began releasing the floodwaters from the reservoirs, they did so knowing it would flood thousands of homes and businesses. This constitutes the taking of private property for public use, and property owners have a right to seek fair compensation.

Hurricane Harvey Reservoir Lawyers

If your home or business was left unscathed by Hurricane Harvey, but flooded as a result of the Addicks and Barker reservoir releases, Raizner Slania LLP can help. We’re working with property owners across Houston to get them the compensation they deserve. Contact us today for a free, no-obligation consultation.