Flooding Events Post Hurricane Harvey: Potential Liability for Dam and Reservoir Operators and Recommendations Moving Forward

When Hurricane Harvey hit the Texas coast as a category 4 hurricane on August 25, 2017, it resulted in $125 billion in damage, rivaling only Hurricane Katrina in the amount of damage caused. It also resulted in the deaths of 88 people and destroyed or damaged 135,000 homes. Much of that devastation was the result of flooding. The storm dumped over 27 trillion gallons of rain over Texas in a matter of days. Some parts of Houston received over 50 inches of rainfall. The potential liability that dam and reservoir operators may face for decisions they make during storm and flooding events has now become a major concern for Texas citizens and its elected officials. Law suits have now been instituted against the federal government for its operation of two flood control reservoirs, as well as against the San Jacinto River Authority for its operation of a water supply reservoir. Moreover, the issues and concerns have been placed on the agenda of a number of committees preparing for the 2019 Texas legislative session. This report reviews current dam and reservoir operations in Texas and examines the potential liability that such operators may face for actions and decisions taken in response to storm and flooding events. In Section III, the report reviews dam gate operations and differentiates between water supply reservoirs and flood control reservoirs. It also considers pre-release options and explains why such actions are disfavored and not recommended. In Section IV, the report evaluates liabilities and defenses applicable to dam and reservoir operators. It explains how governmental immunity can limit the exposure of state and federally-run facilities to claims seeking monetary damages. It also discusses how such entities could be subject to claims of inverse condemnation, which generally are not subject to governmental immunity, under Texas law as well as under the Fifth Amendment to the U.S. Constitution. In addition, the Section discusses negligence and nuisance claims and concludes that plaintiffs asserting either or both of these claims will have difficulty presenting successful arguments for flooding-related damage and harm against operators who act reasonably in the face of storm-related precipitation. Finally, Section V offers recommendations that dam and reservoir operators might pursue in order to engage and educate the public and thereby reduce the potential for disputes and litigation. Specifically, the report highlights the need for expanded community outreach efforts to engage with municipalities, private land owners, and the business community in flood-prone neighborhoods both below and above a dam. It also recommends implementation of proactive flood notification procedures as a way of reaching and alerting as many people as possible of potential and imminent flooding events. Finally, the report proposes implementation of a dispute prevention and minimization mechanism and offers recommendations for the design and execution of such a program