The destruction left in the wake of Hurricane Harvey will take Texas years to recover from. Members of Johns Marrs Ellis & Hodge LLP, along with many of our friends and families, have been directly impacted by the storm’s effects. Our thoughts and prayers continue to go out to all those affected and also to the first responders and volunteers assisting with the recovery efforts.

As gray skies return to summer blue, our lawyers keep getting the following questions: did Houston’s system of reservoirs and dams designed to protect against flooding actually make it worse for some people, and do some property owners have a takings claim against the government for releasing water into their neighborhoods?

The Addicks and Barker Reservoirs on Houston’s west side were designed to store and gently release accumulated water into Buffalo Bayou to help prevent catastrophic flooding to downstream neighborhoods, Houston’s downtown, and the Houston ship channel. But during Hurricane Harvey, as both reservoirs reached their capacities, the Army Corps of Engineers intentionally decided to open the flood gates, intentionally flooding homes and businesses downstream from the dams in the Buffalo Bayou watershed in order to prevent destruction in other areas.

Col. Lars Zetterstrom, the Corps’ Galveston district commander, explained the purposes of the Corps’ intentional release of water: “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.” This was done in an attempt to keep the waters from overtopping the earthen-levee system, which would risk a complete failure of the dam.  The tragic, unenviable choice was to flood some to protect other people and other property. The results of that choice were predictable: flooded homes and cars, lives upended, dreams destroyed. For many, everything changed in an instant.

The question remains: Do the property owners directly affected deserve to be compensated for bearing the burden of the larger community? According to the U.S. Supreme Court in a flooding case, the Constitution’s Fifth Amendment is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Arkansas Fish & Game Commission v. United States, 568 U.S. 23, 31 (2012).

We at Johns Marrs Ellis & Hodge LLP will continue to investigate the flooding from the dam releases and will work to serve our friends, families, and neighbors and to protect the rights of those impacted by these tragic events in Texas and throughout the country.  If you or a family member were impacted by the flooding caused by the release of water from the dam, then we would ask that you complete the survey at the below link so that we can further investigate the potential takings claims.

Complete the survey here.  (Sample survey below).