After decades of failing “to provide flood control,” San Jacinto River Authority faces existential lawsuits after Houston Court of Appeals opinion

After decades of failing “to provide flood control,” San Jacinto River Authority faces existential lawsuits after Houston Court of Appeals opinion

Image: Houston Court of Appeals Justice Michael Massengale, known as a very conservative jurist, wrote the unanimous opinion for the Court that has opened the San Jacinto River Authority up to lawsuits, possibly numbering in the thousands of claims, after the River Authority flooded thousands of homes during Tropical Storm Harvey.

Conroe and Houston, December 8 – God brought the rain of Tropical Storm Harvey and development brought some of the flooding. Nevertheless, the San Jacinto River Authority (SJRA) brought the carnage known as Tropical Storm Harvey on August 28, 2017. When the SJRA began to release 79,131 cubic feet per second of water out of the Lake Conroe Dam gates, at around 2 a.m. on August 28, 2017. the subdivision of the State of Texas unleashed a raging torrent of physical force the likes of which this community has never seen.

After the flooding, on Friday, September 1, SJRA’s Jace Houston, its general manager, said in a public relations video, “we understand there will be devastating flooding downstream but we don’t have the option to stop releases to avoid the catastrophic consequences.” Houston and SJRA may now regret his choice of words in the publicly-released video.

SJRA learned this week on Tuesday, December 4, 2017, that there are consequences even when the government destroys people’s homes and lives, when the Houston Court of Appeals for the First Appellate District ruled in a unanimous opinion that certain Kingwood plaintiffs may sue SJRA under the Private Real Property Rights Preservation Act, Chapter 2007 of the Texas Government Code, for the flooding after the August 28, 2017, release “that imposes a physical invasion . . . of private real property.”

Under Texas Government Code Chapter 2007, a private landowner may recover against any governmental entity which takes an action that imposes such a physical invasion. SJRA tried to avoid liability for the “taking” of the homeowners’ private property by arguing that the statute only applies to regulatory actions by a governmental entity which result in taking private property rights.

The Houston Court of Appeals’ unanimous opinion, which conservative jurist Michael Massengale authored, makes clear that the homeowners may pursue their claims against SJRA as a “taking” of their private property rights.

SJRA had tried to argue that, as a governmental entity, the River Authority is immune from private lawsuits, but the Court of Appeals rejected that argument in Justice Massengale’s December 4 opinion. SJRA argued that its actions in releasing water downstream to flood private homeowners didn’t constitute any sort of “takings” claim for which the homeowners may recover from SJRA. The Court of Appeals and Justice Massengale also disagreed with SJRA in that regard and held that the homeowners have stated a proper cause of action against SJRA.

Judge Massengale’s unanimous opinion included the following important discussion:

“Liberally construing the homeowners’ pleadings, as we must, we conclude that they included sufficient facts to allege the River Authority’s release of waterfrom Lake Conroe was intended to, or was known to be substantially certain to, result in the flooding or exacerbated flooding of each of the homeowners’ specific properties. The same pleadings are also sufficient to overcome the RiverAuthority’s objection that only recurring flooding, as opposed to a single flood event, can support a takings claim. To the extent this is the law, the pleadings include sufficient facts to allege previous flooding that would have made the River Authority aware that its release of water from Lake Conroe subjected the homeowners’ particular properties to damage from flooding or exacerbated flooding.”

The Court of Appeals directly addressed the nature of the claims, which reveal the callous nature of SJRA’s actions during the Harvey storm:

“Once again we cannot agree with the River Authority’s characterization of the homeowners’ extensive and detailed factual allegations as conclusory. The theory of causation is straightforward: in the middle of a hurricane, the River Authority released water from Lake Conroe, causing the foreseeable flooding (or exacerbation of flooding) of specific homes downstream. That theory of a takings claim has been recognized by the Supreme Court.65 In support of this theory, the homeowners alleged that their property was damaged when the flooding reached their property, and it would not have flooded but for the water released by the River Authority. In particular, they alleged that their property would not have flooded under natural conditions. In the alternative, they alleged that the flooding they experienced was far worse than it would have been under natural conditions. The homeowners also alleged that due to the acts of the River Authority, the flooding arrived more quickly and with less warning than otherwise would have occurred. When the floodwaters did arrive, the homeowners alleged that they arrived with more force and velocity, and with higher flow rates, than otherwise would have occurred under natural conditions. As a result, the homeowners alleged that the flooding at their property was deeper than otherwise would have occurred, and it lasted for a longer period of time.”

SJRA now faces hundreds of millions of dollars of potential liability from the homeowners it flooded during the Harvey storm.

SJRA provided almost no warning whatsoever other than a middle-of-the-night press release the agency provided to the Montgomery County Office of Emergency Management (a misnomer, that would be more accurately “the Montgomery County Office of Public Relations During Emergencies”) and a few others. SJRA provided no early warning to any of the subdivisions downstream of the massive release of water.

Local mathematician Jim Bays of Conroe has explained the massively deadly force which SJRA released through the Lake Conroe Dam gates early in the morning on August 28th. “The 79,131 cfs terminology may be the politically correct way for SJRA to describe the water, but people need to understand it in human terms. That may be SJRA’s game, but let’s talk about the actual volume of the water,” Bays told The Golden Hammer, Montgomery County’s leading daily newspaper. Bays said, “79,131 cubic feet per second is the same as 591,941 gallons per second, or 35,516,459 gallons of water per minute. That’s 2,130,987,553 gallons of water per hour. That’s right. That’s 2.1 billion gallons per hour of water that SJRA released on our community from pinpoint gates that increase the velocity and force of the water tremendously.”

Bays continued: “The Astrodome has a volume of 41,000,000 cubic feet. The water released, thanks to SJRA, was the equivalent of filling the Astrodome every 518 seconds or 8.6 minutes, and then dumping that into Montgomery County. SJRA dumped an Astrodome of water downstream every few minutes.” The Golden Hammer asked Bays, the mathematician, what velocity he would expect the water to have had as it left the Lake Conroe Dam gates. In response, Bays stated, “Without knowing the width of the gates, it’s difficult to do a precise calculation of velocity. Nevertheless, that amount of water coming out of the dam gates which I have visually observed would move with such great force it would literally knock the skin off of any human being standing in front of it and not moving with the flow.”

More than 5,000 homes flooded as a result of the SJRA’s massive release of water. The force of the torrent was so great that the water swept many structures off of their foundations.

Since 1937, the SJRA has had a duty “to provide flood control” in the entire watershed of the San Jacinto River, which includes all of Montgomery County. Nevertheless, “establishment” Board members, such as Marisa Rummel and others, failed to fulfill their statutory duty and just accepted SJRA staff recommendations to ignore the primary legal duty the SJRA has had for 81 years. Rummel and other Board members just slept through meetings and voted to approve every staff recommendation. David Kleimann, who served as a Board member of SJRA, resigned from the Board in protest of the failure of the Authority to fulfill its statutory mission.

On October 16, 2017, State Senator Brandon Creighton (R-Conroe) engaged in a tense exchange with Houston towards the end of a hearing before the Senator Agriculture Committee in New Caney, when Creighton asked whether SJRA has the duty “to provide flood control” since that’s in the SJRA original enabling statute which the Texas Legislature enacted in 1937. “We don’t any taxing authority but flooding control is in our enabling legislation…We haven’t asked for that charge to be removed from the law,” said Houston. “But I would interpret ‘flood control’ as an authority we have but not a duty.”

Creighton responded, “The fact that you don’t feel you have a duty to do it is very troubling. That was written in the 1930s. When there’s danger, we run towards it as a steward of the public. But it sounds like you’re running away from the danger…We can’t wait until there’s thousands of people displaced to make those requests.”

Houston admitted that SJRA has the authority to provide flood control and admitted “one option to provide flood control [in Montgomery County] is for the River Authority to do it. We don’t provide flood control now, because we have the power but not the duty to do that.”

Creighton responded, “I’m embarrassed that the public has to hear that answer.”

SJRA’s Houston tried to argue that no governmental entity has the power to do debris cleaning and desnagging from rivers and tributaries, although he eventually conceded those powers are within SJRA’s enabling mandate which the Legislature passed in 1937.

Houston also tried to deflect the responsibility for flood control to a regional authority rather than to SJRA. “Regional is better,” Houston told the Committee.

Enabling legislation giving SJRA responsibility for flood control in the entire San Jacinto River Basin. The San Jacinto River Basin encompasses all of Montgomery County plus additional areas. Source: San Jacinto River Authority.

Earlier this year, SJRA hired a Director of Flood Management, Chuck Gilman, at the startling salary of $180,000 per year. Sadly, the “Flood Management Division” of SJRA is little more than a press release, Gilman’s high salary, and the high salary of his secretary.

The Flood Management Division doesn’t do anything. The SJRA’s description of the Flood Management Division follows:

“Located at the Lake Conroe Dam, the Flood Management Division’s primary functions include: developing short-term and long-term regional flood management strategies within the Authority’s portion of the San Jacinto River Basin;  building partnerships with federal, state, and local government entities; identifying funding sources and opportunities; and coordinating, collaborating, and potentially partnering with other flood management entities throughout the entire San Jacinto River basin.  The Flood Management Division oversees the partnership and implementation of planned and funded projects, including the transfer of operations and maintenance of completed projects to partnering entities.”

In other words, despite its statutory duty “to provide flood control,” SJRA does absolutely nothing by itself to fulfill that responsibility. SJRA obtained a Texas Water Development Board grant and a huge investment from each of the City of Conroe and the Montgomery County government to prepare a flood warning study. SJRA still has not implemented any flood warning plan or operations.

SJRA is one of four government entities putting money into another regional flood control study. The Montgomery County government is putting more money into the study than is the SJRA, which has approximately $55 million of unencumbered funds available to it. SJRA still has not implemented any flood controls or operations.

SJRA has at least three major problems. First, as an agency whose board comes from gubernatorial appointments as opposed to direct election by local citizens, SJRA seems largely out of touch with the concerns and needs of this community. After SJRA is finished paying over all of its assets to the homeowners the Authority flooded during the Harvey storm, the Texas Legislature should transfer the remainder of SJRA’s authority over to the elected Board of Directors of the Lone Star Groundwater Conservation District (LSGCD). Unlike appointed Board members, such as Rummel, who are out of touch with Montgomery County’s citizens or the community’s real needs and who received the appointment as a political groupie of the establishment with no business have any management authority over the Lake Conroe Dam, the San Jacinto River Authority watershed, or the enormous public dollars that flow through SJRA, LSGCD’s Board is elected and far more responsive to the real world.

Second, SJRA continues to suffer from incestuous relationships with engineering contractors. Halff Associates, the same engineering firm whose vice president is Bobby Jack Adams, Craig Doyal’s best friend and business partner, is one of the primary engineering contractors for SJRA. Adams is the son of longtime SJRA Executive Director Jim Adams who was Houston’s predecessor. Halff is very slowly working on a drainage study, although it’s unclear at this point what such a drainage study will contribute beyond reiterating the fact that water flows downhill into tributaries with which longtime residents of Montgomery County are already very familiar. There’s no reason whatsoever to wait to pay Halff almost two million dollars for a seemingly unnecessary study in order to resolve the third problem, which SJRA should have resolved long ago.

The big problem: SJRA should develop an effective early warning system in order to communicative – effectively – with people downstream of its flood intentions. Jace Houston said in the video, “we understand there will be devastating flooding downstream but we don’t have the option to stop releases to avoid the catastrophic consequences.” Regardless of whether one agrees or disagrees with Houston’s conclusory statement about SJRA’s lack of options to stop releases, SJRA most certainly has the financial resources and ability to develop the early warning system it should have implemented a quarter of a century ago.

The other big problem: SJRA has taken no action whatsoever to guide development forward in such a manner that proper drainage, detention, and retention of water will occur during heavy rainstorms. SJRA’s Flood Management Division should be a positive force for safe development that doesn’t harm pre-existing residential and commercial development. Prevention of externalities (economic effects of business transactions outside of the parties to those transactions) is a legitimate function of government as long as the prevention is the minimal reasonable action.

Many citizens have called for a “flood control district” in Montgomery County. In truth, Montgomery County doesn’t need such a district, because the community already has one, albeit one which is out of touch with the citizens. That flood control district is the SJRA.

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