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Flooding in Texas’ White Oak Bayou: Harris County Flood Control District v. Kerr et al – Part 1

The Texas Supreme Court’s opinion in Harris County Flood Control District v. Kerr et al. ruled on a Texas homeowner’s claim of inverse condemnation by Harris County, Texas and the Harris County Flood Control District.  As many of you know, many government agencies have the power of eminent domain, or condemnation, in which the government directly takes private property for a public purpose. However, sometimes the actions of a government agency can damage property without actually condemning the property itself. For example,  a city widens a street and takes the entire parking lot of a local grocery store. The city offers to pay for the lot, but the grocery store has lost all its business since no one can park. The owner of the grocery store can claim that they want reimbursement for the value of their entire business, which was destroyed by the city’s widening of its street. This is an example of inverse condemnation.

Background of the Case:

The plaintiffs were residents and homeowners in the upper White Oak Bayou watershed located in Harris County, Texas. The majority of the homes in the area were built in the late 1970s and early 1980s in an area with a history of flooding. However, for the first 20-25 years after construction, the homes suffered little to no flood damage. Starting in 1998, homes in the area began experiencing flood damage from storms, and continued to experience repeated flood damage ever since.

The homeowners claimed that Harris County and Harris County Flood Control District approved new upstream development without implementing appropriate flood-control measures and that the County and Flood Control District knew that flooding would result from the upstream development if inadequate flood control measures were taken. The homeowners point to a report on the flooding potential of the area prepared by the U.S. Army Corps of Engineers in 1976. That report:

● Attributed recurring damaging floods to “inadequate channel capacities of the streams,” which was “compounded by the continuing increases in suburban development which reduces the infiltration of rainfall and increases and accelerates runoff to the streams.”
● Attributed severe localized flooding to inadequate street drainage and storm sewer systems.
● Noted that while local regulations required new structures to be built above the expected level of the 100 year flood, damage is expected to increase substantially with increased rainfall runoff rates due to continuing development.

The Corps of Engineers proposed improvements to reduce flooding caused by existing and future development that would primarily be funded by the federal government. The County and Flood Control District agreed with the Corps of Engineers report and also agreed to facilitate the improvement projects.

However, the Corps plan was not carried out, and the County and Flood Control District later developed their own flood control plan. A new plan to eliminate flooding along the upper bayou was eventually adopted by the County in 1984, to be funded by local taxes, and called for channel improvements similar to those proposed under the Corps’ plan. The new plan also called for regional detention ponds to mitigate continuing development in the area. The 1984 plan was also never fully implemented. After a flood in 1989, the director of the Flood Control District assured residents that they would come up with plans to protect the area from 100 year floods. Yet another plan was developed, but this plan was designed to contain only 10 year flood events instead of the original 100 year flood events. The County adopted the new, lesser, plan.

The new plan, with less flood control capability, actually caused the Federal Emergency Management Agency to update the flood plain maps for the area. FEMA’s updates show that all of the homes in the area were now within the flood plain. Between 1998 to 2002 most homes were flooded at least three times.

The homeowners filed an inverse condemnation lawsuit against the County and the Flood Control District. The County and Flood Control District responded with a plea to the jurisdiction and a motion for summary judgment. The trial court denied the motion for summary judgment and the Court of Appeals for the First District of Texas agreed.

Continued in Part 2…

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