Hurricane Harvey FEMA Claims vs. Inverse Condemnation Claims: Do You Know Your Recovery Rights? (Part III)

Hurricane Harvey flooding affected Texas property owners (i) with sufficient flood insurance to cover the loss, (ii) with insufficient flood insurance to cover the loss, and (iii) without flood insurance. This three-part series discusses the differences in property ownership rights and two separate avenues to recovery.

First, the National Flood Insurance Act of 1968 governs recovery for property owners with flood insurance. If you missed that post, you can find it here: Hurricane Harvey FEMA Claims vs. Inverse Condemnation Claims: Do You Know Your Recovery Rights? (Part I). Second, the Fifth Amendment to the United States Constitution may provide an alternative avenue to recovery for those with insufficient flood insurance to cover the loss or for those with no flood insurance. The Fifth Amendment applies to the states through the Fourteenth Amendment. If you missed the second post in my three-part series, you can find it here: Hurricane Harvey FEMA Claims vs. Inverse Condemnation Claims: Do you know Your Recovery Rights? (Part II).

My final blog in this series dives a little deeper into the possibility of recovery under the Fifth Amendment Takings Clause. Just to recap, Hurricane Harvey dropped an unprecedented amount of rainfall over Houston last summer. The Army Corps of Engineers allegedly directed the Harris County Flood Control District to release millions of gallons of water from the Addicks and Barker reservoirs to lift the stress on the dams from the storm. This “controlled release” caused extensive flooding to businesses and homes located downstream of the reservoirs and outside demarcated flood plains. Mortgaged properties outside high-risk flooding areas may not be required to have flood insurance. A successful inverse condemnation claim may be the only hope for many experiencing this nightmare.

Property owners should be educated on both sides of the fence. What may seem to be an obvious taking may not always be compensable. Property owners seeking recourse under a theory of inverse condemnation must prove: (i) intent; (ii) causation; and (iii) public benefit.

It appears that the Army Corps of Engineers and the Harris County Flood Control District intentionally flooded downstream properties to protect other homes from further damage. One class action lawsuit in Texas state court claimed the city and county failed to adequately maintain the reservoirs and knew for years that the condition could lead to mass flooding.¹ Prior knowledge of poor upkeep is a good indicator that property damage was a foreseeable result of the government’s decision to release water from the dams.

Recurrence is another factor to take into consideration in this fact-specific inquiry. In St. Bernard Parish Gov’t v. United States,² the court held the Army Corps of Engineers liable to property owners in New Orleans for widespread flood damage following its failure to maintain the Mississippi River levee system. St. Bernard involved repeated flooding events following Hurricanes Katrina, Rita, Gustav, and Ike. The Hurricane Harvey floods that affected Texas property owners after the government released water from the reservoirs is a single isolated event.

Even though courts historically required repetition to constitute a takings claim, state and federal courts are progressively holding that a single flood event is sufficient to plead inverse condemnation.³ Hence, recurrence may be one indication of appropriation, but “a temporary taking may arise from one occasion of flooding, in light of its character.”⁴

It is wise for Texas property owners both with and without flood insurance to carefully document and investigate the facts surrounding the release of water from the reservoirs. Courts are starting to reject the bright-line rule and implement a fact specific analysis to determine whether property owners can recover repair costs for damaged property even after a single isolated event.
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¹ Dave Simpson, Flood Victims Hit Houston, Harris County with Action, LAW360, New York (Sept. 5, 2017, 9:10 PM).
² St. Bernard Parish Gov’t v. United States, 121 Fed. Cl. 687 (Fed. Cl. 2015).
³ See City of El Paso v. Mazie’s L.P., 408 S.W.3d 13, 25 (Tex.App. 2015); City of Socorro v. Campos, 510 S.W.3d 121, 130 (Tex.App. 2016) (holding that Texas plaintiffs alleging a single flood event met the pleading standard for inverse condemnation).
⁴ St. Bernard Parish Gov’t, at 739.