Legal Aspect of Lake Lowering That Lake Conroe Association Won’t Tell Officials About

To avert another seasonal lowering of Lake Conroe, the Lake Conroe Association is appealing to State Representatives, State Senators, the Governor, the Conroe City Council, and Montgomery County Commissioners. They focus on the temporary loss of recreation in some parts of the lake. They also say that “damages” home values and businesses.

Finally, they’re telling officials there’s no proof that lowering the lake helps prevent downstream flooding and that it wastes $10 million of water.

They are NOT telling officials, however, that ending the program before other mitigation measures are in place could potentially open up the SJRA and State of Texas to billions of dollars in law suits.

Fifth Amendment “Takings Clause”

The issue has to do with the Fifth Amendment of the U.S. Constitution. It says that private property shall not be taken for public use, without just compensation. This so-called takings clause forms the basis for many of the lawsuits against the SJRA stemming from Harvey flooding. Those have not yet gone to trial. But lawsuits in a parallel case have.

In December, a federal judge ruled in favor of plaintiffs flooded behind the Addicks and Barker reservoirs. He found the Army Corps liable for damages.

He said the flooding of homes was a foreseeable result of government actions.

Rulings in Addicks/Barker Cases

“U.S. Judge Charles F. Lettow detailed how government officials knowingly and intentionally used private property to store rising floodwaters,” said a Houston Chronicle article about the decision. The key point in the case, according to the judge: The government knew for decades that the reservoirs could NOT contain the floodwaters in a deluge and did NOTHING over decades to prevent it. “Plaintiffs have sufficiently demonstrated that the inundation of floodwaters onto their private property was the ‘direct, natural, or probable result’ of the government’s activity,” he wrote.

How Addicks Case Applies to SJRA Lake Lowering Policy

Hold that thought. Now apply those principles to the SJRA today. It faces a decision between the temporary seasonal lowering of Lake Conroe or NOT lowering the lake. Not lowering the lake would placate recreational boaters and lakefront property owners like LCA president Mike Bleier (who did not flood during Harvey).

The lowering provides a buffer against flooding for BOTH Lake Conroe and downstream communities on the West Fork of the San Jacinto. They include Woodloch, Porter, Humble, Atascocita and Kingwood. During Harvey, approximately 300 structures flooded on Lake Conroe, 1100 between Lake Conroe and US59, 3652 in Kingwood along the West Fork, 366 in Atascocita, and 466 in Humble.

That’s almost 6000 structures on the West Fork. One structure might include a whole apartment complex housing hundreds of families, a shopping center employing hundreds, a high school with 4000 students, a hotel providing housing to flood victims or a hospital treating them.

None of these numbers includes damages to East Fork property, which Lake Conroe releases do not affect

Now let’s assume that the SJRA eliminates the seasonal lowering policy which it has publicly stated prevented flooding twice so far.

Let’s also assume that a big storm comes along that dumps 10-12 inches of rain on Lake Conroe and that because that buffer no longer exists, people flood again.

Parallels

Lake Conroe and downstream residents now have a ready-made, almost watertight case against the SJRA and its financial backer, the State of Texas. All the essential elements from the Barker/Addicks decision are there.

• Government knew that downstream flooding was likely.
• SJRA had a proven strategy at its disposal to reduce flooding.
• SJRA chose not to use the strategy, which the governor endorsed.
• Governor had made flood mitigation a top priority for SJRA.
• SJRA chose instead to increase recreational possibilities on public property (Lake Conroe).
• Private property then flooded as a foreseeable result.

It seems like a pretty close parallel to me. Perhaps it’s even more of a textbook case. Especially considering recent directives by the governor for the SJRA to focus on flood mitigation and his public endorsement of the lake lowering strategy.

Mandates in SJRA Enabling Legislation

The state created the SJRA to “conserve, control, and utilize to beneficial service the storm and flood waters of the rivers and streams of the State.” Section 2 of the enabling legislation mentions floodwaters three times. It doesn’t mention recreational boating or lakefront home values once.

In addition, the enabling legislation also says that the purpose of the SJRA is to:

• Prevent the devastation of land from recurrent overflows.
• Protect life and property.
• Regulate the waters of the San Jacinto River and its tributaries.
• Conserve “soils against destructive erosion … thereby preventing the increased flood menace incident thereto.”

If the SJRA floods people again when it might have been avoided, this sounds more and more like a slam-dunk case for plaintiffs.

Officials Should Get the Facts

Before Montgomery County Commissioners, the Conroe City Council, Representative Will Metcalf and Senator Robert Nichols fire off more letters telling the SJRA what to do based on Mike Bleier’s misinformation, one hopes they would at least ask for a briefing from the SJRA to get the whole picture.

That includes understanding how the seasonal lowering strategy helps. It is designed more for “less than 100-year” rain events, than it is for another Harvey. Another Harvey would fill up that 1-2 foot buffer quickly and repeatedly. The value of the strategy lies in offsetting storms that we experience far more frequently, but which could still flood people, such as those last May.

For Those Who Have Never Personally Flooded

Before closing, I’d like to publish several images that West Fork residents Rhonda Haney and Alexis Faust sent me. The images show their Harvey experiences. Thank God, most Lake Conroe residents didn’t have to suffer through what Rhonda and Alexis did. Most Lake Conroe residents may not know the financial and emotional devastation of flooding. I wouldn’t wish that on anyone.

Posted By Bob Rehak on 1/13/2019 with thanks to Alexis Faust and Rhonda Haney for sharing their photos

867 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.