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Corps of Engineers' flooding of property during Harvey ruled a "taking"
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georgewebb Offline
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Corps of Engineers' flooding of property during Harvey ruled a "taking"
Opinion issued today by the Court of Federal Claims, sitting in Houston


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12-17-2019 02:03 PM
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RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
A key issue in the case was the exact cause of the flooding on the plaintiffs' properties -- was it due to the decisions of the Corps of Engineers, or to other causes?

The expert for the property owners was Rice's own Phil Bedient, Professor of Civil Engineering. Here's how the court weighed the two expert opinions:
Quote:In his report, Dr. Bedient concluded that “all of the test properties were flooded due to the impounding rainfall runoff waters by the [Corps] behind the Addicks and Barker Dams,” PX526 at 46, and such flooding was not a result of the local drainage systems or due to riverine flooding, see id. at 47, 49, 54. Contrastingly, defendant argues that flooding was unavoidable upstream due to the magnitude of Harvey. Def.’s Br. at 72. That is, defendant asserts that the flooding on these three properties cannot be attributed to the pools created by the Addicks and Barker Dams. See id. at 68-69 (arguing that the flooding on the three properties was attributable to alternative sources such as diversion channels and riverine flooding).

Dr. Bedient reached his conclusions by studying and analyzing real-time data collected during the storm, whereas Dr. Nairn reached his conclusions through modeling and projections. While modeling can be a useful tool for planning and analyzing hypothetical outcomes and at times may be able to provide more sophisticated insights than even real-time data, in the case at hand, Dr. Bedient’s analysis was more persuasive. Particularly, Dr. Nairn’s testimony suffered from a major flaw—a failure to fully capture what actually occurred.
12-17-2019 02:11 PM
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Frizzy Owl Offline
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Post: #3
RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
This sets a bad precedent and I hope it gets overturned on appeal.

People should not be rewarded for buying/building inside a flood control reservoir.
12-17-2019 03:18 PM
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georgewebb Offline
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RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-17-2019 03:18 PM)Frizzy Owl Wrote:  This sets a bad precedent and I hope it gets overturned on appeal.

People should not be rewarded for buying/building inside a flood control reservoir.

The opinion may not go quite as far as you're suggesting.
First, the court says that the key point is not whether the property owners knew there was a general risk of flooding, but whether they had notice specifically that there was risk of flooding because of the operation of the dams:
Quote:In this case, the properties are located in a geographical area that is generally susceptible to large storms and potential flooding, and the landowners were aware of that fact. But the flooding that caused the alleged taking before the court was different in kind from that which had occurred naturally and from what plaintiffs had reason to anticipate; it was more severe than any prior flooding and it was not the result of natural conditions but rather of deliberate government action.
So without the findings mentioned above (in which the expert testimony was key) on what caused their particular properties to flood, the property owners would have had a hard time proving a taking.

Next, in assessing whether the property owners had notice of the specific risk, the court says that they definitely did not have actual notice (i.e. "knew"), so the only question is whether they had constructive notice (i.e. "ought to have known"):
Quote:It is undisputed that plaintiffs did not know their properties were located within the reservoirs and subject to attendant government-induced flooding. The point of contention here is whether plaintiffs objectively ought to have known about that risk based on notice.
The court then addresses three possible indicia of constructive notice, and concludes that none of them were sufficient to impute notice to the property owners. (This may be the part of the opinion most subject to dispute.)

So anyway: if the property owners had had actual notice of being in the flood reservoir as you suggest -- i.e. if the bolded finding were not true -- then I don't think they would have a case at all. On a quick read, the constructive notice finding is perhaps more troublesome: the opinion seems to sets a fairly high bar for what constitutes constructive notice, almost to the point of saying that without some degree of actual notice, constructive notice does not exist.
12-17-2019 08:21 PM
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RiceLad15 Online
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RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-17-2019 08:21 PM)georgewebb Wrote:  
(12-17-2019 03:18 PM)Frizzy Owl Wrote:  This sets a bad precedent and I hope it gets overturned on appeal.

People should not be rewarded for buying/building inside a flood control reservoir.

The opinion may not go quite as far as you're suggesting.
First, the court says that the key point is not whether the property owners knew there was a general risk of flooding, but whether they had notice specifically that there was risk of flooding because of the operation of the dams:
Quote:In this case, the properties are located in a geographical area that is generally susceptible to large storms and potential flooding, and the landowners were aware of that fact. But the flooding that caused the alleged taking before the court was different in kind from that which had occurred naturally and from what plaintiffs had reason to anticipate; it was more severe than any prior flooding and it was not the result of natural conditions but rather of deliberate government action.
So without the findings mentioned above (in which the expert testimony was key) on what caused their particular properties to flood, the property owners would have had a hard time proving a taking.

Next, in assessing whether the property owners had notice of the specific risk, the court says that they definitely did not have actual notice (i.e. "knew"), so the only question is whether they had constructive notice (i.e. "ought to have known"):
Quote:It is undisputed that plaintiffs did not know their properties were located within the reservoirs and subject to attendant government-induced flooding. The point of contention here is whether plaintiffs objectively ought to have known about that risk based on notice.
The court then addresses three possible indicia of constructive notice, and concludes that none of them were sufficient to impute notice to the property owners. (This may be the part of the opinion most subject to dispute.)

So anyway: if the property owners had had actual notice of being in the flood reservoir as you suggest -- i.e. if the bolded finding were not true -- then I don't think they would have a case at all. On a quick read, the constructive notice finding is perhaps more troublesome: the opinion seems to sets a fairly high bar for what constitutes constructive notice, almost to the point of saying that without some degree of actual notice, constructive notice does not exist.

To your last point, as it should. We are far too lax in what must be disclosed to property owners. Potential property owners already have enough to manage and evaluate when looking to own a home, and they don’t have or know how to use resources to evaluate risks associated with the physical location of their home. However, developers, flood plain managers, etc. do have those resources, and it should be mandatory to disclose flood risk in some meaningful and obvious manner.

Further, the fact that anyone was even allowed to develop within the reservoirs is absolutely insane, but I don’t know enough about how that was greenlit to understand if the Corp was responsible.

I had a feeling from the beginning that the upstream case would be won by the plaintiffs and the downstream cases would not. I can’t remember if Phil is working on the downstream cases or not, and haven’t heard of any have been ruled on yet.

And to the first comment - no one is being rewarded for buying these homes. Their homes were destroyed and the risk present when they were purchased was not appropriately communicated. In reality, they were taken advantage of by developers who built where they should not have been allowed to build.
12-17-2019 08:34 PM
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georgewebb Offline
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RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-17-2019 08:34 PM)RiceLad15 Wrote:  
(12-17-2019 08:21 PM)georgewebb Wrote:  
(12-17-2019 03:18 PM)Frizzy Owl Wrote:  This sets a bad precedent and I hope it gets overturned on appeal.

People should not be rewarded for buying/building inside a flood control reservoir.

The opinion may not go quite as far as you're suggesting.
First, the court says that the key point is not whether the property owners knew there was a general risk of flooding, but whether they had notice specifically that there was risk of flooding because of the operation of the dams:
Quote:In this case, the properties are located in a geographical area that is generally susceptible to large storms and potential flooding, and the landowners were aware of that fact. But the flooding that caused the alleged taking before the court was different in kind from that which had occurred naturally and from what plaintiffs had reason to anticipate; it was more severe than any prior flooding and it was not the result of natural conditions but rather of deliberate government action.
So without the findings mentioned above (in which the expert testimony was key) on what caused their particular properties to flood, the property owners would have had a hard time proving a taking.

Next, in assessing whether the property owners had notice of the specific risk, the court says that they definitely did not have actual notice (i.e. "knew"), so the only question is whether they had constructive notice (i.e. "ought to have known"):
Quote:It is undisputed that plaintiffs did not know their properties were located within the reservoirs and subject to attendant government-induced flooding. The point of contention here is whether plaintiffs objectively ought to have known about that risk based on notice.
The court then addresses three possible indicia of constructive notice, and concludes that none of them were sufficient to impute notice to the property owners. (This may be the part of the opinion most subject to dispute.)

So anyway: if the property owners had had actual notice of being in the flood reservoir as you suggest -- i.e. if the bolded finding were not true -- then I don't think they would have a case at all. On a quick read, the constructive notice finding is perhaps more troublesome: the opinion seems to sets a fairly high bar for what constitutes constructive notice, almost to the point of saying that without some degree of actual notice, constructive notice does not exist.

To your last point, as it should. We are far too lax in what must be disclosed to property owners. Potential property owners already have enough to manage and evaluate when looking to own a home, and they don’t have or know how to use resources to evaluate risks associated with the physical location of their home. However, developers, flood plain managers, etc. do have those resources, and it should be mandatory to disclose flood risk in some meaningful and obvious manner.

Further, the fact that anyone was even allowed to develop within the reservoirs is absolutely insane, but I don’t know enough about how that was greenlit to understand if the Corp was responsible.

I had a feeling from the beginning that the upstream case would be won by the plaintiffs and the downstream cases would not. I can’t remember if Phil is working on the downstream cases or not, and haven’t heard of any have been ruled on yet.

And to the first comment - no one is being rewarded for buying these homes. Their homes were destroyed and the risk present when they were purchased was not appropriately communicated. In reality, they were taken advantage of by developers who built where they should not have been allowed to build.

The opinion sheds a little light on those topics as well. My sense (again, based on a really cursory read -- I might take a longer look later) is that:
(A) The Corps knew for some time that the dam would likely cause these particular properties to flood, but (1) made a calculated decision not to acquire the land outright, and (2) took some steps but maybe not enough to ensure that the risk was publicly known.
(B) The developers seem to have had actual knowledge of the risk, but did little to make sure that subsequent purchasers were informed.

As a result of (A) and (B), the particular plaintiffs in this case were essentially innocent purchasers, so that the court was not willing to impute notice to them.

As Lad mentions, there is certainly room for improvement in (A) and (B). On (A), one crazy thing is that it seems that when the Corps first had knowledge, the land was still all ranch land, and could have been acquired outright without too much trouble. To be clear, the Corps did acquire a good bit of land for the reservoirs, but it did not acquire all the land which it expected the dams to flood -- and that incremental land is what got developed.

On an even more cursory read, the parallel case about the downstream property owners -- who were flooded when the Corps released water from the dams -- may come out differently, as the government may have either a statutory right or a common-law immunity on the release decision. This case is also in the US Court of Federal Claims.
12-18-2019 11:13 AM
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Post: #7
RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
The homeowners aren't going after the developers, though. They're going after the Army Corps. Taxpayer has the deepest pockets, so never mind who's most directly responsible - and of course nobody believes themselves personally responsible for their own choices.

Also, this ruling only establishes that the case can proceed as a takings case. No money has been awarded, and the homeowners have a long way to go for that.

The military has broad immunity for damages caused by actions in response to force majeure, for obvious reasons; and the Corps has additional immunities specific to flood management.
12-18-2019 11:37 AM
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RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
When I got out of the Navy and came back to Houston, I made a conscious decision that I would never buy a home behind Addicks or Barker. Those dams were built for a reason, and that reason might very well end up in my back yard--or house--if we got enough rain. I never bought or lived there.

My home now is higher than the top of the dam at Lake Conroe, so I'm in relatively little danger. I've had water in my yard twice, most recently with Harvey. But it was still several feet away from my house when they opened the floodgates to save the dam.

The bottom line is that Houston is going to have severe flooding until somebody does something about it. Whenever I go to Amsterdam, I find myself thinking Houston should have been built like that. It's too late now for that, but at least wherever there is a sizable tract of raw land left, buy it and take out dirt to create a detention pond. Lots of park space when it's dry, and less danger of water in your house when it's wet.
(This post was last modified: 12-18-2019 12:48 PM by Owl 69/70/75.)
12-18-2019 12:46 PM
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RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-18-2019 11:37 AM)Frizzy Owl Wrote:  The homeowners aren't going after the developers, though. They're going after the Army Corps. Taxpayer has the deepest pockets, so never mind who's most directly responsible - and of course nobody believes themselves personally responsible for their own choices.

Also, this ruling only establishes that the case can proceed as a takings case. No money has been awarded, and the homeowners have a long way to go for that.

The military has broad immunity for damages caused by actions in response to force majeure, for obvious reasons; and the Corps has additional immunities specific to flood management.

The Corps may have an action for contribution against the developers -- to the extent the developers still exist (often it seems that they are shell companies).
12-18-2019 01:53 PM
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Post: #10
RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-18-2019 01:53 PM)georgewebb Wrote:  
(12-18-2019 11:37 AM)Frizzy Owl Wrote:  The homeowners aren't going after the developers, though. They're going after the Army Corps. Taxpayer has the deepest pockets, so never mind who's most directly responsible - and of course nobody believes themselves personally responsible for their own choices.

Also, this ruling only establishes that the case can proceed as a takings case. No money has been awarded, and the homeowners have a long way to go for that.

The military has broad immunity for damages caused by actions in response to force majeure, for obvious reasons; and the Corps has additional immunities specific to flood management.

The Corps may have an action for contribution against the developers -- to the extent the developers still exist (often it seems that they are shell companies).

https://landtejas.com/historical/canyon-...nco-ranch/

Definitely still in business, and should be on the hook.
12-18-2019 03:26 PM
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georgewebb Offline
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RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
These are interesting questions.

Assume that both the Corps and the developers knew that the dam would cause the land to flood in the event of a big storm.

Case 1: Subsequent purchasers fully understand this risk (either from the developers or from the Corps). In that case, they have no property interest in the land's "flood easement", and thus the Corps's use of that easement is not a taking.
Case 2: The developers fail to communicate the flood risk to buyers, so that subsequent innocent purchases do have a property interest in their land's flood easement (the present case). In this case, the (in)actions of the developers turn a non-taking into a taking, and thus cause significant costs to the government. Can they be liable for that?
Case 3: After the land is developed, the government outright buys the land, but because of the development, the cost of doing so is much higher than it would have been its they had bought it up before the development. Can the developers be liable to the government for that higher cost?
12-18-2019 04:09 PM
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Post: #12
RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-18-2019 04:09 PM)georgewebb Wrote:  These are interesting questions.
Assume that both the Corps and the developers knew that the dam would cause the land to flood in the event of a big storm.
Case 1: Subsequent purchasers fully understand this risk (either from the developers or from the Corps). In that case, they have no property interest in the land's "flood easement", and thus the Corps's use of that easement is not a taking.
Case 2: The developers fail to communicate the flood risk to buyers, so that subsequent innocent purchases do have a property interest in their land's flood easement (the present case). In this case, the (in)actions of the developers turn a non-taking into a taking, and thus cause significant costs to the government. Can they be liable for that?
Case 3: After the land is developed, the government outright buys the land, but because of the development, the cost of doing so is much higher than it would have been its they had bought it up before the development. Can the developers be liable to the government for that higher cost?

Of course, that assumes that the Corps and/or the developers knew the risk.
12-18-2019 04:34 PM
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Post: #13
RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-18-2019 04:34 PM)Owl 69/70/75 Wrote:  
(12-18-2019 04:09 PM)georgewebb Wrote:  These are interesting questions.
Assume that both the Corps and the developers knew that the dam would cause the land to flood in the event of a big storm.
Case 1: Subsequent purchasers fully understand this risk (either from the developers or from the Corps). In that case, they have no property interest in the land's "flood easement", and thus the Corps's use of that easement is not a taking.
Case 2: The developers fail to communicate the flood risk to buyers, so that subsequent innocent purchases do have a property interest in their land's flood easement (the present case). In this case, the (in)actions of the developers turn a non-taking into a taking, and thus cause significant costs to the government. Can they be liable for that?
Case 3: After the land is developed, the government outright buys the land, but because of the development, the cost of doing so is much higher than it would have been its they had bought it up before the development. Can the developers be liable to the government for that higher cost?

Of course, that assumes that the Corps and/or the developers knew the risk.

When the top of the dam is about 104 feet and Canyon Gate subdivision is mostly 98 feet... how could the developer not know?
12-18-2019 07:17 PM
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Owl 69/70/75 Online
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Post: #14
RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-18-2019 07:17 PM)InterestedX Wrote:  
(12-18-2019 04:34 PM)Owl 69/70/75 Wrote:  
(12-18-2019 04:09 PM)georgewebb Wrote:  These are interesting questions.
Assume that both the Corps and the developers knew that the dam would cause the land to flood in the event of a big storm.
Case 1: Subsequent purchasers fully understand this risk (either from the developers or from the Corps). In that case, they have no property interest in the land's "flood easement", and thus the Corps's use of that easement is not a taking.
Case 2: The developers fail to communicate the flood risk to buyers, so that subsequent innocent purchases do have a property interest in their land's flood easement (the present case). In this case, the (in)actions of the developers turn a non-taking into a taking, and thus cause significant costs to the government. Can they be liable for that?
Case 3: After the land is developed, the government outright buys the land, but because of the development, the cost of doing so is much higher than it would have been its they had bought it up before the development. Can the developers be liable to the government for that higher cost?
Of course, that assumes that the Corps and/or the developers knew the risk.
When the top of the dam is about 104 feet and Canyon Gate subdivision is mostly 98 feet... how could the developer not know?

We are supposed to have flood zone maps that tell them what the risk is. If they don't show as being in a flood zone, then the presumption would be no risk. Unfortunately, as development occurs upstream, those flood lines move--and not in a happy direction.

And I'm not sure anybody ever expected the water level to reach the top of the dam. At that point there's really nothing to do but release water.

I found out I was several feet higher than the top of the dam at Lake Conroe.

What really needs to be done is to dig. Dig out behind Addicks/Barker so they can hold more water. Dig retention areas wherever we can obtain raw land. Not really much else can be done. Pumps just move the problem from you to somebody else.

By the way, if you noted the name of the Army officer who testified, he's a West Pointer but both his parents are Rice graduates.
12-18-2019 07:44 PM
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RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-18-2019 07:44 PM)Owl 69/70/75 Wrote:  
(12-18-2019 07:17 PM)InterestedX Wrote:  
(12-18-2019 04:34 PM)Owl 69/70/75 Wrote:  
(12-18-2019 04:09 PM)georgewebb Wrote:  These are interesting questions.
Assume that both the Corps and the developers knew that the dam would cause the land to flood in the event of a big storm.
Case 1: Subsequent purchasers fully understand this risk (either from the developers or from the Corps). In that case, they have no property interest in the land's "flood easement", and thus the Corps's use of that easement is not a taking.
Case 2: The developers fail to communicate the flood risk to buyers, so that subsequent innocent purchases do have a property interest in their land's flood easement (the present case). In this case, the (in)actions of the developers turn a non-taking into a taking, and thus cause significant costs to the government. Can they be liable for that?
Case 3: After the land is developed, the government outright buys the land, but because of the development, the cost of doing so is much higher than it would have been its they had bought it up before the development. Can the developers be liable to the government for that higher cost?
Of course, that assumes that the Corps and/or the developers knew the risk.
When the top of the dam is about 104 feet and Canyon Gate subdivision is mostly 98 feet... how could the developer not know?

We are supposed to have flood zone maps that tell them what the risk is. If they don't show as being in a flood zone, then the presumption would be no risk. Unfortunately, as development occurs upstream, those flood lines move--and not in a happy direction.

And I'm not sure anybody ever expected the water level to reach the top of the dam. At that point there's really nothing to do but release water.

I found out I was several feet higher than the top of the dam at Lake Conroe.

What really needs to be done is to dig. Dig out behind Addicks/Barker so they can hold more water. Dig retention areas wherever we can obtain raw land. Not really much else can be done. Pumps just move the problem from you to somebody else.

By the way, if you noted the name of the Army officer who testified, he's a West Pointer but both his parents are Rice graduates.

The release of water isn’t really related to the upstream case, unless the argument was being made that a release happened too late, and thus flooded the homes. But I don’t believe that is part of the lawsuit.

And I would imagine the houses are in the currently mapped floodplain, which have not changed since the early 2000s, likely around when these homes were built.
12-18-2019 08:27 PM
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Post: #16
RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-18-2019 08:27 PM)RiceLad15 Wrote:  
(12-18-2019 07:44 PM)Owl 69/70/75 Wrote:  
(12-18-2019 07:17 PM)InterestedX Wrote:  
(12-18-2019 04:34 PM)Owl 69/70/75 Wrote:  
(12-18-2019 04:09 PM)georgewebb Wrote:  These are interesting questions.
Assume that both the Corps and the developers knew that the dam would cause the land to flood in the event of a big storm.
Case 1: Subsequent purchasers fully understand this risk (either from the developers or from the Corps). In that case, they have no property interest in the land's "flood easement", and thus the Corps's use of that easement is not a taking.
Case 2: The developers fail to communicate the flood risk to buyers, so that subsequent innocent purchases do have a property interest in their land's flood easement (the present case). In this case, the (in)actions of the developers turn a non-taking into a taking, and thus cause significant costs to the government. Can they be liable for that?
Case 3: After the land is developed, the government outright buys the land, but because of the development, the cost of doing so is much higher than it would have been its they had bought it up before the development. Can the developers be liable to the government for that higher cost?
Of course, that assumes that the Corps and/or the developers knew the risk.
When the top of the dam is about 104 feet and Canyon Gate subdivision is mostly 98 feet... how could the developer not know?
We are supposed to have flood zone maps that tell them what the risk is. If they don't show as being in a flood zone, then the presumption would be no risk. Unfortunately, as development occurs upstream, those flood lines move--and not in a happy direction.
And I'm not sure anybody ever expected the water level to reach the top of the dam. At that point there's really nothing to do but release water.
I found out I was several feet higher than the top of the dam at Lake Conroe.
What really needs to be done is to dig. Dig out behind Addicks/Barker so they can hold more water. Dig retention areas wherever we can obtain raw land. Not really much else can be done. Pumps just move the problem from you to somebody else.
By the way, if you noted the name of the Army officer who testified, he's a West Pointer but both his parents are Rice graduates.
The release of water isn’t really related to the upstream case, unless the argument was being made that a release happened too late, and thus flooded the homes. But I don’t believe that is part of the lawsuit.
And I would imagine the houses are in the currently mapped floodplain, which have not changed since the early 2000s, likely around when these homes were built.

The floodplain changes every year, every time we pave over another area. The floodplain maps aren't updated that often, which is a bit of a problem in situations like this.
12-18-2019 09:43 PM
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Post: #17
RE: Corps of Engineers' flooding of property during Harvey ruled a "taking"
(12-18-2019 04:09 PM)georgewebb Wrote:  These are interesting questions.
Assume that both the Corps and the developers knew that the dam would cause the land to flood in the event of a big storm.

Nobody does. That’s a bad assumption. At least as far as knowing what land. I worked with flood plain maps in the late 1970s. I bought my first house and moved out of an apartment in 1979. When I started looking, I ruled out anything behind, or immediately below, either Addicks or Barker.

By the time data can be gathered and processed to create a new flood map, it’s already out of date. And nobody knows how to fix that.
(This post was last modified: 01-26-2020 05:43 PM by Owl 69/70/75.)
01-26-2020 05:40 PM
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