Tag Archive for: Bedient

SJRA Loses Plea in Harvey “Takings” Case, Attacks Expert Witness, Files Another Appeal

Downstream property owners who claim their property was unconstitutionally “taken” by the San Jacinto River Authority (SJRA) during Harvey face more delays in their legal battle for compensation. A final outcome could still be years away.

Appeal After Appeal

After losing a motion to dismiss the case against it in 2020, SJRA appealed the ruling. But the appellate court also ruled against the SJRA and remanded the case back to the trial court for further proceedings.

So, the SJRA then entered a “plea to the jurisdiction.” Basically, a plea to the jurisdiction also seeks to dismiss a case. But it does that by challenging the court’s subject-matter jurisdiction, not by arguing the merits of the case.

On December 16, 2022, the trial court dismissed that, too. Now the SJRA is appealing the dismissal of its plea to the jurisdiction as well. SJRA uses a quirk of Texas law that allows government agencies to file appeals before a case is decided, thus dragging them out.

In the meantime, SJRA has been attacking the report of Dr. Phillip Bedient, a professor of engineering at Rice University, acting as an expert witness for the plaintiffs. Bedient’s report contains explosive allegations. If a jury finds them persuasive, it could be very costly to the SJRA and State of Texas, which backstops the SJRA financially.

SJRA’s delaying tactics and appeals suggest it fears Bedient’s testimony in front of a jury.

Seven Months Arguing over an Expert Witness

The chronology of 334 filings to date with the Harris County Clerk in this case (#1123430) reveals as much about the SJRA legal strategy as the contents of the SJRA filings themselves.

The latest dust-up over Bedient started in August 2022. SJRA claimed plaintiffs had not given them notice of Bedient’s expert testimony. Plaintiffs had given notice two years earlier.

Then it took almost two months to find a mutually agreeable time for Dr. Bedient’s deposition. During that time, the two sides argued about document production related to Bedient’s testimony. SRA allegedly requested the same documents more than once; plaintiff’s claim they produced them and were under no obligation to produce them twice.

On October 27, 2022, SJRA asked for a continuance until plaintiffs complied. Then, on October 31, plaintiffs again claimed they had complied and that SJRA was trying to manufacture a “discovery non-compliance dispute where none exists, presumably as a pretext to inject further unnecessary delay into this case.”

The next item in the court record (November 28, 2022) is SJRA’s objections to Bedient’s declaration. SJRA urged the judge to strike Bedient’s testimony. Plaintiffs objected to SJRA’s objections on 12/1/2022.

On 12/16/2022, the judge denied SJRA’s objections to Bedient’s testimony.

Then, on 1/4/2023, SJRA gave notice of its intent to file an interlocutory appeal on its plea to the jurisdiction. But it took a whole month for the SJRA to write a $3,067 check for the appeal.

Next, the SJRA requested the clerk to forward more records to the court of appeals. Three and a half months later, on 5/18/2023, the clerk finally filed the receipt for the additional records with the court of appeals.

Net: the SJRA has spent the last 7 months trying to keep Bedient’s testimony from being heard by a jury. One legal expert I talked to predicts that the SJRA will appeal its plea to the jurisdiction all the way to the Texas Supreme Court. And that plea revolves heavily around Bedient’s testimony.

Bombshells in Bedient Testimony

So, what did Bedient claim that could be so damaging? Read his entire testimony here. It contains a number of explosive allegations.

  1. SJRA told the court it did not model a “no-Lake-Conroe-Dam Scenario.” But Bedient claims SJRA produced a “no dam” model during discovery. Oops!
  2. The no-dam scenario showed:
    • Lower flood peaks downstream than with the 79,000 cubic-feet-per-second SJRA actually released
    • Flood peaks without a dam would have arrived slower and given people more time to evacuate.
  3. SJRA originally designed a dam that would have served two purposes: flood control and water supply. It later modified the design before construction to be water supply only.
  4. Flooding would have been less damaging had SJRA constructed the flood-control dam originally authorized.
  5. SJRA justified its release of 79,000 CFS by saying peak inflow was 130,000 CFS. But Bedient says the 130,000 estimate was a short-lived spike from one small area, and that had the SJRA averaged the inflow across the entire watershed, it could have released far less water – 60,000 CFS – while still following its dam operating procedures.
  6. A 1994 storm, during which SJRA released 33,000 cubic feet per second from Lake Conroe, badly flooded Kingwood and Humble. The SJRA later modified its gate operating procedures to avoid downstream flooding, but then released 79,000 CFS during Harvey.
  7. Downstream flooding will likely recur as a result of the current design and operation of the Lake Conroe Dam.

Read more about these and Bedient’s other conclusions on pages 25-27. No wonder SJRA is fighting this testimony!

At the current rate, it could be years before this case goes to trial. Two-years ago – on 5/21/21, the judge issued a deadline for challenges to expert testimony; they were supposed to have been heard 18 months ago.

Posted by Bob Rehak on 5/20/23

2090 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.

Houston A Year After Harvey: Where We Are And Where We Need To Be

Jim Blackburn, JD, professor of environmental law at Rice and Phil Bedient, PhD., a professor of engineering also at Rice, have just released an important new study called Houston a Year After Harvey: Where We Are and Where We Need to Be . Because of the length, detail, intricate maps and charts, and file size, this is best viewed on something larger than a smartphone.

Written for the Average Adult

Three things immediately become apparent when reviewing this 55-page report. It’s wide ranging in scope. It’s an excellent work of scholarship. And it’s well written; the average adult should be able to understand all the key concepts without difficulty.

Houston A Year After Harvey: Three Major Sections

It’s an excellent summary of what happened during Harvey, how the community is responding, and what still needs to be done – major watershed by major watershed.

The Problems of Obsolete Flood Plain Maps

This paper is organized into three main sections. First, the issues of obsolete 100-year floodplain maps and increasing rainfall are discussed because they are key to fully understanding the current dilemma and shaping alternative concepts for long-term protection. Whether or not you believe in climate change, the case for revising flood maps is pretty compelling based on the math alone. We’ve had five so-called 500-year storms in the last 25 years. Are we just spectacularly unlucky? Or do we need to revisit the assumptions and underlying math?

USGS did this recently and designated Harvey a 42-year flood at the West Fork and Grand Parkway.

Any time you try to predict the frequency of rarely observed or unobserved events, such as 500-year storms, you venture way out on a limb. The data on which you base assumptions is thin. Worse, one of the fundamental precepts of extreme value analysis (EVA) is that nothing changes during the 500 years under analysis.

Good luck with that. Five hundred years ago, the U.S., Texas, Houston, developers, gasoline, F150s and sand mining didn’t even exist. As we get more data and update assumptions, flood maps are being redrawn. So are the guidelines which form the basis for different types of development. Instead of raising new homes two feet above the 100 year flood plain, officials are now talking about two feet above the 500-year flood plain.

Issues that Need to Be Addressed Watershed by Watershed

The second part of Houston A Year After Harvey is a geographic overview of the flood issues and potential responses to various watersheds across Harris County.

The discussion of the West Fork of the San Jacinto goes from pages 28-30. It starts with a discussion of sedimentation, where the sediment is coming from and why we need stronger regulation of sand mining.

In regard to sedimentation, the reports also discusses  the need for dredging to restore the river’s carrying capacity.

Finally, in regard to the San Jacinto, the report discusses the need to change the operating philosophy for the dams on Lake Conroe and Lake Houston to enable pre-release as a strategy for flood mitigation. This has already happened, they note, with the approval of the TCEQ to temporarily lower the level of Lake Conroe during the peak of hurricane season.

Different Solution Sets for Different Flooding Issues

The third major portion of Houston A Year After Harvey discusses different flood management concepts for three zones of the Houston area that have different flooding issues.

The authors break the county up into three major zones, A, B and C. A stretches from Addicks/Barker to the Katy Prairie. B covers the central part of the county. And C covers coastal areas.

The discussion of Zone B (which includes the Lake Houston and San Jacinto River) includes explanations for many of the projects listed on the Harris County Flood Control District Flood Bond that we are now voting on. See pages 42 through 45.

But don’t stop there. There’s also a great description for how the Ike Dike could work in Zone C.

How All the Pieces of the Flood Bond Fit Together

All in all, Houston A Year After Harvey makes a great case for the flood bond, without ever really setting out to do that. It will help give you a better understanding for how our drainage problems affect the people around us and vice versa.

The entire report is posted on this web site with permission of Rice University’s Baker Institute for Public Policy and SSPEED Center. ©2018 James A. Baker III Institute for Public Policy of Rice University. It will be permanently stored in the Reports Section under the Hurricane Harvey tab for easy future access.

Posted on August 13, 2018 by Bob Rehak

349 Days Since Hurricane Harvey