The National Weather Service and Harris County warn of a severe weather threat for Tuesday.
Harris County Meteorologist Jeff Lindner warns that severe thunderstorms, some of which could turn into tornados are likely with heavy rainfall, and gusty winds across SE Texas Tuesday.
The National Weather Service Storm Prediction Center also warns of the potential for supercell development and hail.
Up to 3 inches of rain are likely with isolated higher amounts (up to 6″ according to Lindner) where thunderstorm training exists.
Rainfall for Tuesday from the NWS Weather Prediction Center.Posted at 2:38PM Central Time, Monday 1/23/23.Hail probabilities for Tuesday range from 5-15% across region.
Overview
A deepening upper level trough over the SW US will move eastward and into SW/W TX tonight/Tuesday and then exit the state early Wednesday morning to the east. This system will bring dynamic weather to much of Texas starting late Monday tonight.
The dry air now over SE TX will undergo significant changes in the next 24 hours. A low level jet will quickly transport extreme moisture northward from the SW/W Gulf of Mexico. Moisture levels in the atmosphere will quintuple overnight, driven by the 50-60 mph winds just above the surface. NWS indicates strong winds are the primary threat.
A wind advisory will likely be required for much of the area with isolated to scattered power outages possible.
Jeff Lindner, Harris County Meteorologist
Lift should rapidly increase Tuesday morning with scattered to numerous showers and thunderstorms developing from SW to NE across the region.
Look for scattered showers to begin developing around sunrise, then increase in coverage through the day. The highest potential for thunderstorms in the Houston metro area should be mid-afternoon. But they should move out of the state by early evening.
Heavy Rainfall Expected
Models hint at some sort of low-level convergence boundary becoming established along the US 59 corridor around mid-morning Tuesday. That should trigger heavy rainfall well ahead of the approaching front and boost rainfall in the Fort Bend, Harris, and Liberty County areas. Lindner worries that this could lead to a period of training storms and quick rainfall accumulations.
He predicts widespread rainfall of 1-3 inches with isolated totals of 4-6 inches possible.
Street flooding will be a concern in areas that catch heavier rainfall. Hourly rates may approach 1-3 inches.
Given the time of year, wet grounds, and dead vegetation from recent freezes, maximum run-off is likely. Lindner expects rises on area streams, but also says that the current forecasted rainfall amounts should not lead to creek, bayou, or river flooding.
Severe
The National Weather Service Storm Prediction Center suggests that an impressive 80-100kt mid-level jet carving across SE TX Tuesday afternoon could bring enough instability south of I-10 for severe thunderstorms to develop. SPC has upgraded the risk in that area into a (2 out of 5) slight risk.
Wind gusts of 60-70mph will be possible. Near the coast, a tornado or two will be possible. The highest threat of severe weather is currently offshore, but the severe threat could be upgraded south of I-10.
Winds
Starting late tonight, the strong low level jet overhead will bring sustained winds of 25-35mph and gusts of 40-45mph at the surface much of Tuesday. Gusts may be higher near the coast and inland bays. A wind advisory will likely be required for much of the area and these winds may down trees and tree limbs, result in isolated to scattered power outages, and move unsecured outdoor objects.
Marine
Dangerous marine conditions will quickly develop late tonight into Tuesday as southerly winds rapidly increase into the 35-45kt range for all waters.
A gale watch is in effect for all waters and will be upgraded to a warning this afternoon. Seas will quickly build 6-8 ft in bays and 10-12ft offshore on Tuesday.
The strong winds may result in elevated tides in the northern portion of Galveston Bay Tuesday along with wave run-up on the Gulf facing beaches.
The line of strong to severe thunderstorms arriving Tuesday afternoon/evening will bring W/NW winds at 30-40 kts. Wind gusts of 50-55kts will be possible. Small craft should be in port by this evening and remain in port until winds and seas subside on Wednesday.
One Year Anniversary of Kingwood Tornado
Although January tornados are rare, we should not forget what happened last January when several twisters slashed through Kingwood downing trees and power lines. Exercise caution.
Posted by Bob Rehak on 1/23/2023 at 2PM based on information from the NWS and Jeff Lindner
1973 Days since Hurricane Harvey
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2023/01/d12_fill.gif?fit=800%2C561&ssl=1561800adminadmin2023-01-23 15:08:342023-01-23 15:27:21Severe Weather Threat Tuesday with High Winds, Rain Up to 3″ and Possible Tornados
The San Jacinto Regional Flood Planning Group (SJRFPG) submitted its final recommendations to the Texas Water Development Board on January 10. The 316-page report includes recommendations on floodplain management evaluation, strategies and projects; the plan’s impacts; administration, regulatory and legislative recommendations; and financing.
I discussed the floodplain projects and impacts when I reviewed the draft plan in August of 2022. Not much as changed with the projects and impacts except for some minor details.
In 2019, the legislature appropriated money to establish the FIF. However, it did not appropriate additional funds in 2021. We need more money to fully implement the plans in the coming years.
Provide state incentives to establish dedicated drainage funding:
State law provides municipalities with the authority to establish local drainage utilities. Those that don’t use that authority generally rely on federal partners to fund floodplain management and regulatory programs. Or else they use some combination of general tax revenues and municipal bonds. The state should incentivize local communities to fund drainage projects rather than rely solely on federal funding.
Provide counties with legislative authority to establish drainage utilities/fees:
Municipalities have that power. But the unincorporated areas of counties do not. Give counties a reliable source of revenue to implement, maintain and repair drainage projects. Let them establish drainage utilities and drainage fees in unincorporated areas.
Update the state building code on a regular basis:
Texas is missing out on a billion dollars in FEMA’s Building Resilient Infrastructure and Communities (BRIC) Grants because of antiquated building costs. To take advantage of those grants, we need to update building codes. Adopt recent versions of the International Building Code (IBC) and the International Residential Code (IRC) at a minimum. Also we should adopt updated codes regularly in future legislative sessions.
Regulatory and Administrative Recommendations
The plan also made the following recommendations for regulatory and administrative changes.
Upgrade TxDOT design criteria:
Require all new and reconstructed state roadways to be elevated at or above the Atlas-14 1.0% annual chance flood level. Use the 0.2% level if Atlas 14 has not yet been adopted. TxDOT should also consider future conditions, such as urbanization and climate variability, in its roadway design criteria. TxDOT does not in all cases design roadways consistent with minimum NFIP requirements. TxDOT should strive to meet NFIP standards, especially for critical infrastructure such as evacuation and emergency routes.
Recommend Minimum Statewide Building Elevation Standards:
Recommend statewide minimum finished floor elevations at (or waterproofed to) the FEMA effective 2% annual chance flood except in areas designated as coastal flood zones. Use the 1.0% annual chance flood elevation where Atlas 14 has been adopted. Incentivize higher building standards. Recent historic floods and NOAA’s updated Atlas-14 rainfall probabilities reveal how much base flood elevations (BFE) can change over time. Jurisdictions that have required a freeboard over the current BFE have mitigated the risk of these increasing BFEs.
Clarify the process and cost to turn Base Level Engineering (BLE) data into Flood Insurance Rate Map (FIRM) panels:
BLE efficiently models and maps flood hazard data at community, county, watershed, and/or state levels. Currently, the state and FEMA are heavily investing in BLE. Clearly communicate to local jurisdictions how to implement this data in regulations and flood insurance rate maps. The steps remain unclear to many local jurisdictions.
Establish and fund a levee safety program similar to the TCEQ dam-safety program:
The TCEQ has a program to inspect dams that fall under its jurisdiction. Levees, on the other hand, are not subject to a similar safety program despite posing similar risks during flooding events.
Promote flood awareness, education, safety and outreach:
Partner with the Texas Floodplain Managers Association (TFMA) to promote public flood awareness, education, and safety in communities. Also, partner with Texas Association of Counties to do the same for Floodplain Administrators lacking technical flooding background (e.g., some County Judges). A well-informed public can make better informed personal choices regarding issues that involve flood risk and also will be more likely to support public policies and mitigation measures to reduce that risk.
Support ongoing education/training for floodplain management:
Provide no- or low-cost online resources including training modules, webinars, and print. Target training for non-technical Floodplain Administrators (e.g., County Judges who may serve as Floodplain Administrators but not have the necessary technical background). This would help to make effective floodplain management more prevalent across the state, especially in smaller counties.
Develop state incentives to participate in the National Flood Insurance Program (NFIP) and Community Rating System (CRS) program:
NFIP works with communities to adopt and enforce floodplain management regulations that help mitigate flooding. CRS encourages practices that exceed minimum requirements of the NFIP. Both programs are essential to achieving State Flood-Plan goals. Implement State-led incentives to encourage communities to participate.
Develop a public database that tracks flood fatalities:
Fatalities have occurred during extreme flood events throughout the state’s history. A statewide database and tracking system with appropriate privacy restrictions could aid in future project planning and regulatory decision making. It could also help with future education efforts regarding actions that frequently lead to fatalities. An example is the importance of not attempting to drive through flood waters.
Help smaller jurisdictions prepare grant and loan applications or make the process easier:
Provide training for Councils of Governments (COGs) to assist with the funding process. Developing applications for project funding can be difficult, especially for smaller jurisdictions with limited experience and access to funding to obtain expert assistance. Simplifying applications and making funding available specifically for application development would serve to make the process more accessible across the state and help close knowledge gaps.
Develop interactive models that use Base Level Engineering (BLE) data:
Provide them to Regional Flood Planning Groups and their technical consulting teams. Standardize future conditions and land use data. The State’s and FEMA’s BLE data should be available in most parts of the state.
Allow partnerships to provide regional flood-mitigation solutions:
Flood risk does not recognize jurisdictional boundaries, yet many flood-mitigation programs prevent multiple jurisdictions from working together if they want to remain eligible state funding. Flood-mitigation studies and solutions require inter-jurisdictional collaboration. Update policies to encourage and permit it.
Next Step on Final Recommendations
These final recommendations sound like good ideas to me. Please communicate your feelings to your state senator and representative.
I have summarized the final recommendations above. To see their exact text, review chapter 8. Or see the entire report to put them all in context.
Posted by Bob Rehak on 1/22/2023
1972 Days After Hurricane Harvey
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2023/01/20230121-Screenshot-2023-01-21-at-9.54.40-PM.jpg?fit=1200%2C788&ssl=17881200adminadmin2023-01-21 21:57:432023-01-21 23:33:14San Jacinto Regional Flood Planning Group Submits Final Recommendations
On January 10, 2023, McGehee ☆ Chang, Landgraf, Feiler responded to the government’s most recent motion in the Addicks Barker Downstream “Takings” Case on behalf of the plaintiffs. Their response included a counter-motion against the government. Here is a copy of their motion. Each side will have a chance to file one more round of written arguments before trial.
Background: Government Denies Claims
To recap, in November 2022, the government again moved for a summary judgment in the case. The government contended that the Addicks and Barker dams:
Historically prevented far more damage ($16.5 billion through 2016) than the release of water during Harvey caused
Reduced plaintiff’s level of flooding by up to 7-8 feet
Did not “cause” – in a legal sense – the plaintiffs’ flooding
Further, the government contended that plaintiffs’ claims are based on a single, extraordinary, catastrophic event and any action undertaken by the Corps during the event does not constitute a “taking” under the Fifth Amendment.
The government compared peak flows at several points along Buffalo Bayou during Harvey and contended that the plaintiffs properties would have flooded regardless of the release. It claims that the releases constituted less than 10% of total flow. The government also claimed that had it never built the dams, downstream flooding would have been far worse.
Plaintiffs Allege They Were Not Informed of Risk
The plaintiff’s response (which included 3800+ pages of arguments, depositions and appendices) focuses on how the government modified the dams and its procedures over time.
It adjusted discharge rates to maintain a “non-damaging channel capacity over time.” The rates went from the original design concept of 15,700 cubic feet per second down to about 2,000 cubic feet per second in a series of incremental steps over decades. The changes were designed to accommodate residential construction along Buffalo Bayou.
The plaintiffs allege that the Corps publicly reassured property owners that it would not open the dams to a point where it would cause downstream flooding. Plaintiffs further allege that over the years, people grew to rely on these assurances and none of the test properties experienced any flooding.
Nor did any of them know that the Government might deliberately release water from the Reservoirs in sufficient quantities to flood their properties.
One commercial property reported just a few inches of flooding prior to the releases, escalating to six feet afterward. Plaintiffs argue that they would have suffered no or substantially less flooding if the government had not released water, a decision motivated in part to protect upstream properties.
Crux of Plaintiff’s Arguments
Plaintiffs claim the government:
Repeatedly promised downstream property owners that it would keep the floodgates closed
Could have kept the floodgates closed; the Reservoirs were never in danger of failing
Elected to open the floodgates even though it did not have to do so to avoid any imminent failure
Knew that opening the floodgates would flood the downstream property owners
Cannot meet the high bar required to assert releases were necessary.
Could have bought-out the properties it flooded but chose not to because of the expense.
Plaintiffs conclude by saying that:
The Government’s summary judgment motion should be denied
The Court should enter a partial summary judgment for the Plaintiffs on the liability and causation elements of their claims
All other issues, including damages, should be set for a prompt trial.
To review all the appendices submitted by plaintiffs, click here. Size caution: 330 megabytes.
A Shakespearean Tragedy
Although it might be buried somewhere in thousands of pages of filings, neither side in this case appears to directly address which properties would have flooded regardless of the release and which flooded because of the release.
The government seems to contend it is responsible for none of the flooding because it was unavoidable. And the plaintiffs contend the government is responsible for all of it.
This is like watching a Shakespearean tragedy unfold. Not even at issue here are the policies that allowed lucrative development in dangerous places, the lack of risk disclosure, and the erosion of safety margins.
Next up: The government can reply to plaintiff’s motion by February 9, 2023. Plaintiffs will then have a chance to reply to the reply by March 11. Then both sides will gear up for a hearing before the Judge.
Posted by Bob Rehak on 1/19/2023
1969 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.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2023/01/20230119-Screenshot-2023-01-19-at-12.18.25-PM.jpg?fit=1200%2C625&ssl=16251200adminadmin2023-01-19 12:24:482023-01-19 12:27:59Downstream Addicks Barker Case Moves Another Step Closer to Trial
Severe Weather Threat Tuesday with High Winds, Rain Up to 3″ and Possible Tornados
The National Weather Service and Harris County warn of a severe weather threat for Tuesday.
Harris County Meteorologist Jeff Lindner warns that severe thunderstorms, some of which could turn into tornados are likely with heavy rainfall, and gusty winds across SE Texas Tuesday.
The National Weather Service Storm Prediction Center also warns of the potential for supercell development and hail.
Up to 3 inches of rain are likely with isolated higher amounts (up to 6″ according to Lindner) where thunderstorm training exists.
Overview
A deepening upper level trough over the SW US will move eastward and into SW/W TX tonight/Tuesday and then exit the state early Wednesday morning to the east. This system will bring dynamic weather to much of Texas starting late Monday tonight.
The National Weather Service Storm Prediction Center warns that “supercells will be likely along the developing line of storms.”
The dry air now over SE TX will undergo significant changes in the next 24 hours. A low level jet will quickly transport extreme moisture northward from the SW/W Gulf of Mexico. Moisture levels in the atmosphere will quintuple overnight, driven by the 50-60 mph winds just above the surface. NWS indicates strong winds are the primary threat.
Lift should rapidly increase Tuesday morning with scattered to numerous showers and thunderstorms developing from SW to NE across the region.
Look for scattered showers to begin developing around sunrise, then increase in coverage through the day. The highest potential for thunderstorms in the Houston metro area should be mid-afternoon. But they should move out of the state by early evening.
Heavy Rainfall Expected
Models hint at some sort of low-level convergence boundary becoming established along the US 59 corridor around mid-morning Tuesday. That should trigger heavy rainfall well ahead of the approaching front and boost rainfall in the Fort Bend, Harris, and Liberty County areas. Lindner worries that this could lead to a period of training storms and quick rainfall accumulations.
He predicts widespread rainfall of 1-3 inches with isolated totals of 4-6 inches possible.
Street flooding will be a concern in areas that catch heavier rainfall. Hourly rates may approach 1-3 inches.
Given the time of year, wet grounds, and dead vegetation from recent freezes, maximum run-off is likely. Lindner expects rises on area streams, but also says that the current forecasted rainfall amounts should not lead to creek, bayou, or river flooding.
Severe
The National Weather Service Storm Prediction Center suggests that an impressive 80-100kt mid-level jet carving across SE TX Tuesday afternoon could bring enough instability south of I-10 for severe thunderstorms to develop. SPC has upgraded the risk in that area into a (2 out of 5) slight risk.
Wind gusts of 60-70mph will be possible. Near the coast, a tornado or two will be possible. The highest threat of severe weather is currently offshore, but the severe threat could be upgraded south of I-10.
Winds
Starting late tonight, the strong low level jet overhead will bring sustained winds of 25-35mph and gusts of 40-45mph at the surface much of Tuesday. Gusts may be higher near the coast and inland bays. A wind advisory will likely be required for much of the area and these winds may down trees and tree limbs, result in isolated to scattered power outages, and move unsecured outdoor objects.
Marine
Dangerous marine conditions will quickly develop late tonight into Tuesday as southerly winds rapidly increase into the 35-45kt range for all waters.
A gale watch is in effect for all waters and will be upgraded to a warning this afternoon. Seas will quickly build 6-8 ft in bays and 10-12ft offshore on Tuesday.
The strong winds may result in elevated tides in the northern portion of Galveston Bay Tuesday along with wave run-up on the Gulf facing beaches.
The line of strong to severe thunderstorms arriving Tuesday afternoon/evening will bring W/NW winds at 30-40 kts. Wind gusts of 50-55kts will be possible. Small craft should be in port by this evening and remain in port until winds and seas subside on Wednesday.
One Year Anniversary of Kingwood Tornado
Although January tornados are rare, we should not forget what happened last January when several twisters slashed through Kingwood downing trees and power lines. Exercise caution.
Posted by Bob Rehak on 1/23/2023 at 2PM based on information from the NWS and Jeff Lindner
1973 Days since Hurricane Harvey
San Jacinto Regional Flood Planning Group Submits Final Recommendations
The San Jacinto Regional Flood Planning Group (SJRFPG) submitted its final recommendations to the Texas Water Development Board on January 10. The 316-page report includes recommendations on floodplain management evaluation, strategies and projects; the plan’s impacts; administration, regulatory and legislative recommendations; and financing.
I discussed the floodplain projects and impacts when I reviewed the draft plan in August of 2022. Not much as changed with the projects and impacts except for some minor details.
Now, with the state legislature in session, I would like to review the administrative, regulatory and legislative final recommendations in Chapter 8.
Legislative Recommendations
The SJRPG made four legislative recommendations to facilitate floodplain management plus flood mitigation planning and implementation.
Provide recurring biennial appropriations to the Flood Infrastructure Fund (FIF):
In 2019, the legislature appropriated money to establish the FIF. However, it did not appropriate additional funds in 2021. We need more money to fully implement the plans in the coming years.
Provide state incentives to establish dedicated drainage funding:
State law provides municipalities with the authority to establish local drainage utilities. Those that don’t use that authority generally rely on federal partners to fund floodplain management and regulatory programs. Or else they use some combination of general tax revenues and municipal bonds. The state should incentivize local communities to fund drainage projects rather than rely solely on federal funding.
Provide counties with legislative authority to establish drainage utilities/fees:
Municipalities have that power. But the unincorporated areas of counties do not. Give counties a reliable source of revenue to implement, maintain and repair drainage projects. Let them establish drainage utilities and drainage fees in unincorporated areas.
Update the state building code on a regular basis:
Texas is missing out on a billion dollars in FEMA’s Building Resilient Infrastructure and Communities (BRIC) Grants because of antiquated building costs. To take advantage of those grants, we need to update building codes. Adopt recent versions of the International Building Code (IBC) and the International Residential Code (IRC) at a minimum. Also we should adopt updated codes regularly in future legislative sessions.
Regulatory and Administrative Recommendations
The plan also made the following recommendations for regulatory and administrative changes.
Upgrade TxDOT design criteria:
Require all new and reconstructed state roadways to be elevated at or above the Atlas-14 1.0% annual chance flood level. Use the 0.2% level if Atlas 14 has not yet been adopted. TxDOT should also consider future conditions, such as urbanization and climate variability, in its roadway design criteria. TxDOT does not in all cases design roadways consistent with minimum NFIP requirements. TxDOT should strive to meet NFIP standards, especially for critical infrastructure such as evacuation and emergency routes.
Recommend Minimum Statewide Building Elevation Standards:
Recommend statewide minimum finished floor elevations at (or waterproofed to) the FEMA effective 2% annual chance flood except in areas designated as coastal flood zones. Use the 1.0% annual chance flood elevation where Atlas 14 has been adopted. Incentivize higher building standards. Recent historic floods and NOAA’s updated Atlas-14 rainfall probabilities reveal how much base flood elevations (BFE) can change over time. Jurisdictions that have required a freeboard over the current BFE have mitigated the risk of these increasing BFEs.
Clarify the process and cost to turn Base Level Engineering (BLE) data into Flood Insurance Rate Map (FIRM) panels:
BLE efficiently models and maps flood hazard data at community, county, watershed, and/or state levels. Currently, the state and FEMA are heavily investing in BLE. Clearly communicate to local jurisdictions how to implement this data in regulations and flood insurance rate maps. The steps remain unclear to many local jurisdictions.
Establish and fund a levee safety program similar to the TCEQ dam-safety program:
The TCEQ has a program to inspect dams that fall under its jurisdiction. Levees, on the other hand, are not subject to a similar safety program despite posing similar risks during flooding events.
Promote flood awareness, education, safety and outreach:
Partner with the Texas Floodplain Managers Association (TFMA) to promote public flood awareness, education, and safety in communities. Also, partner with Texas Association of Counties to do the same for Floodplain Administrators lacking technical flooding background (e.g., some County Judges). A well-informed public can make better informed personal choices regarding issues that involve flood risk and also will be more likely to support public policies and mitigation measures to reduce that risk.
Support ongoing education/training for floodplain management:
Provide no- or low-cost online resources including training modules, webinars, and print. Target training for non-technical Floodplain Administrators (e.g., County Judges who may serve as Floodplain Administrators but not have the necessary technical background). This would help to make effective floodplain management more prevalent across the state, especially in smaller counties.
Develop state incentives to participate in the National Flood Insurance Program (NFIP) and Community Rating System (CRS) program:
NFIP works with communities to adopt and enforce floodplain management regulations that help mitigate flooding. CRS encourages practices that exceed minimum requirements of the NFIP. Both programs are essential to achieving State Flood-Plan goals. Implement State-led incentives to encourage communities to participate.
Develop a public database that tracks flood fatalities:
Fatalities have occurred during extreme flood events throughout the state’s history. A statewide database and tracking system with appropriate privacy restrictions could aid in future project planning and regulatory decision making. It could also help with future education efforts regarding actions that frequently lead to fatalities. An example is the importance of not attempting to drive through flood waters.
Help smaller jurisdictions prepare grant and loan applications or make the process easier:
Provide training for Councils of Governments (COGs) to assist with the funding process. Developing applications for project funding can be difficult, especially for smaller jurisdictions with limited experience and access to funding to obtain expert assistance. Simplifying applications and making funding available specifically for application development would serve to make the process more accessible across the state and help close knowledge gaps.
Develop interactive models that use Base Level Engineering (BLE) data:
Provide them to Regional Flood Planning Groups and their technical consulting teams. Standardize future conditions and land use data. The State’s and FEMA’s BLE data should be available in most parts of the state.
Allow partnerships to provide regional flood-mitigation solutions:
Flood risk does not recognize jurisdictional boundaries, yet many flood-mitigation programs prevent multiple jurisdictions from working together if they want to remain eligible state funding. Flood-mitigation studies and solutions require inter-jurisdictional collaboration. Update policies to encourage and permit it.
Next Step on Final Recommendations
These final recommendations sound like good ideas to me. Please communicate your feelings to your state senator and representative.
I have summarized the final recommendations above. To see their exact text, review chapter 8. Or see the entire report to put them all in context.
Posted by Bob Rehak on 1/22/2023
1972 Days After Hurricane Harvey
Downstream Addicks Barker Case Moves Another Step Closer to Trial
On January 10, 2023, McGehee ☆ Chang, Landgraf, Feiler responded to the government’s most recent motion in the Addicks Barker Downstream “Takings” Case on behalf of the plaintiffs. Their response included a counter-motion against the government. Here is a copy of their motion. Each side will have a chance to file one more round of written arguments before trial.
Background: Government Denies Claims
To recap, in November 2022, the government again moved for a summary judgment in the case. The government contended that the Addicks and Barker dams:
Further, the government contended that plaintiffs’ claims are based on a single, extraordinary, catastrophic event and any action undertaken by the Corps during the event does not constitute a “taking” under the Fifth Amendment.
The government compared peak flows at several points along Buffalo Bayou during Harvey and contended that the plaintiffs properties would have flooded regardless of the release. It claims that the releases constituted less than 10% of total flow. The government also claimed that had it never built the dams, downstream flooding would have been far worse.
Plaintiffs Allege They Were Not Informed of Risk
The plaintiff’s response (which included 3800+ pages of arguments, depositions and appendices) focuses on how the government modified the dams and its procedures over time.
It adjusted discharge rates to maintain a “non-damaging channel capacity over time.” The rates went from the original design concept of 15,700 cubic feet per second down to about 2,000 cubic feet per second in a series of incremental steps over decades. The changes were designed to accommodate residential construction along Buffalo Bayou.
The plaintiffs allege that the Corps publicly reassured property owners that it would not open the dams to a point where it would cause downstream flooding. Plaintiffs further allege that over the years, people grew to rely on these assurances and none of the test properties experienced any flooding.
Nor did any of them know that the Government might deliberately release water from the Reservoirs in sufficient quantities to flood their properties.
One commercial property reported just a few inches of flooding prior to the releases, escalating to six feet afterward. Plaintiffs argue that they would have suffered no or substantially less flooding if the government had not released water, a decision motivated in part to protect upstream properties.
Crux of Plaintiff’s Arguments
Plaintiffs claim the government:
Plaintiffs conclude by saying that:
To review all the appendices submitted by plaintiffs, click here. Size caution: 330 megabytes.
A Shakespearean Tragedy
Although it might be buried somewhere in thousands of pages of filings, neither side in this case appears to directly address which properties would have flooded regardless of the release and which flooded because of the release.
The government seems to contend it is responsible for none of the flooding because it was unavoidable. And the plaintiffs contend the government is responsible for all of it.
This is like watching a Shakespearean tragedy unfold. Not even at issue here are the policies that allowed lucrative development in dangerous places, the lack of risk disclosure, and the erosion of safety margins.
Next up: The government can reply to plaintiff’s motion by February 9, 2023. Plaintiffs will then have a chance to reply to the reply by March 11. Then both sides will gear up for a hearing before the Judge.
Posted by Bob Rehak on 1/19/2023
1969 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.