New Presentations on Barker-Addicks Upstream Case and State of Regional Flood Mitigation

On February 19, the Bayou City Initiative hosted presentations by Charles Irvine of Irvine & Connor, PLLC and Professor Jim Blackburn of Rice University. Irvine was the Court-appointed, Co-lead Counsel for the Addicks-Barker “Upstream” case. Blackburn is co-director of the Severe Storm Prevention, Education and Evacuation from Disaster (SSPEED) Center at Rice and a faculty scholar at the Baker Institute – just two of many distinctions.

The oral explanations that accompanied each of these presentations provided much of the interest. But even without those, they are still understandable and compelling. Let me attempt to fill in some of the gap.

Barker-Addicks Upstream Case: What Corps Knew and Did

Irvine focused mainly on what the Army Corps knew about flooding potential upstream of the reservoirs and what they consciously permitted to happen through inaction. His presentation is packed with memos and reports dating back to 1973.

In a landmark ruling last December, the judge ruled that the US Government and Army Corps were liable in all 13 test cases for a “taking” private property for public use without just compensation.” That language comes from the Fifth Amendment of the US Constitution.

The Barker-Addicks cases have been divided into upstream and downstream groups because of their different characteristics. On February 19, 2020, Judge Loren A. Smith dismissed all the downstream cases outright. According to the Houston Chronicle, he said that property owners had no right to sue the government for inundating their land in what he called a “2000-year storm.”

Both of these cases set potential precedent for people in the Lake Houston area. The downstream cases contain some circumstances that parallel SJRA actions during Harvey.

The upstream cases contain elements that apply to future flooding now that the SJRA has consciously chosen to balance upstream boating, property and commercial interests with downstream safety.

All in all, it’s an interesting read. The last slide in Irvine’s presentation shows him and co-counsel standing in front of a wall with a quote from Abraham Lincoln. The quote says, “It is as much the duty of government to render prompt justice against itself, in favor of citizens, as it is to administer the same, between private individuals.”

Charles Irvine is third from left.

State of Region and Prescriptions for Future

Blackburns presentation can roughly be broken into two parts: what has been done since Harvey and what still needs to be done to protect us in the future.

Regular readers will recognize many past projects from the archives of although Blackburn’s purview is admittedly wider than mine. I focus mainly on the Lake Houston Area; Blackburn focuses on the region.

Blackburn, however, makes many prescriptions to reduce future flooding re:

  • Development in flood plains
  • Acknowledging climate change
  • Impacts to low-income and minority areas
  • A black-mold public-health crisis
  • Location of hazardous waste sites
  • Cancer clusters
  • Allocation of public funds
  • Design of freeways that flood
  • Tunneling as a mitigation alternative
  • Flood alert systems
  • Ike-Dike Options and more
Jim Blackburn’s biggest worry.

Blackburn does not shy from controversy. But it’s not necessary to agree with each of his observations. It is necessary to discuss them if we are going to move beyond the thinking that keeps us mired in the past.

To download both presentations, click here.

Posted by Bob Rehak on 2/26/2020 with thanks to Charles Irvine, Jim Blackburn and the Bayou City Initiative

911 Days after Hurricane Harvey