Conroe, December 1 – San Jacinto River Authority (SJRA) General Manager Jace Houston lauded what he called “an excellent ruling” from the 163rd District Court of Orange County, Texas, which dismissed a flooding lawsuit against the Sabine River Authority (SRA), arising out of flooding in March, 2016, which Houston believes is very similar to the lawsuits now pending against the SJRA based upon flooding during Tropical Storm Harvey. “I wanted to make you all aware of an excellent ruling that just came out of the district court in Orange County in the Sabine River Authority flooding case,” Houston told the entire staff of SJRA in a secret communication on Thursday, November 16, 2017. The Golden Hammer obtained a copy of the secret email earlier this week.
Houston explained, “SRA was being sued on all the same grounds that we are as a result of the historic flooding event they experienced in March of last year. Their facts are very similar to ours – higher flow coming into the reservoir than they let out, they followed their protocols, etc….[T]heir case is directly on point with ours on key issues. The plaintiffs asserted three claims: inverse condemnation, trespass, and nuisance.”
The Orange County lawsuit arose out of the release by SRA of approximately 208,000 cubic feet per second of water out of the Toledo Bend Reservoir beginning on March 11, 2016, during a storm which brought 18 inches of rain to the area. The release resulted in major flood in and around Deweyville, Texas.
Niagara Falls releases approximately 85,000 cubic feet per second of water.
Beginning Friday, August 25, 2017, Montgomery County and surrounding areas suffered through Tropical Storm Harvey, which brought rain in excess of 25 inches in some areas over an approximately four day period. SJRA estimated that the area of the Lake Conroe Dam at the southern tip of Lake Conroe northwest of the city center of Conroe on the West Fork of the San Jacinto River experienced 22.4 inches of rain from August 25 to August 29, 2017.
On Monday, August 28, 2017, SJRA released 79,141 cubic feet per second of water (more than 500,000 gallons per second) through the Dam, even though its normal flow of released water from the Dam is 2,700 cubic feet per second. The inflow of water into Lake Conroe was 130,000 cubic feet per second at the height of the storm.
Massive and severe flooding of communities downstream began almost immediately upon SJRA’s release of the water which exceeded the maximum release out of the Lake Conroe Dam during the 1994 flood by 2.39 times.
SJRA provided little warning to downstream communities other than a press release it issued on Sunday, August 27, 2017.
Many people lost their lives and approximately eight thousand families lost their homes in the floods, according to estimates of the Montgomery County Commissioners Court during its Friday, September 1, 2017, meeting.
The flooding occurred in three primary areas moving approximately downstream:
West Fork of San Jacinto River: River Plantation, Harpers Landing, Porter, and surrounding communities
East Fork of San Jacinto River: Splendora, Patton Village, Roman Forest, and surrounding communities
Confluence of the forks of San Jacinto River: Kingwood.
Former State Representative Steve Toth and many others have criticized SJRA for their failure to handle flooding property. Toth’s criticism of SJRA primarily consists of two points:
SJRA should have provided real and substantial warning to the homeowners downstream that SJRA intended the massive release of water from the Lake Conroe Dam. “All they did was issue a press release. It’s completely disgusting. They should have gone into neighborhoods with sound trucks and warned people what was coming,” said Toth.
SJRA should have begun pre-releasing water in larger quantities than the typical release rate well before the storm actually hit the San Jacinto River watershed, because this entire community had sufficient warning that Tropical Storm Harvey was on its way to southeast Texas several days before it actually struck.
Within a few weeks after the storm and flood, several law firms had filed lawsuits on behalf of various groups of homeowners who claimed that SJRA’s flooding of their homes during the Harvey storm was negligent and resulted in an inverse condemnation, or taking by eminent domain.
The elements of an inversecondemnationclaimare (1) the governmentalentityintentionallyperformed an act in the exercise of itslawfulauthority, (2) that resulted in the taking, damaging, or destruction of the claimant’sproperty, (3) for publicuse. It’s very difficult to show that flooding, such as that which SRA caused at Deweyville or the flooding SJRA caused downstream from the Lake Conroe Dam during the Harvey storm, was an “intentional…act.” The Orange County district court in the SRA case found that, as a matter of law, a dam release during a major storm is not the type of intentional act which supports an inverse condemnation, or taking, claim. As to the negligence and trespass claims of the Orange County plaintiffs, the district court held that SRA, as a state agency, enjoys sovereign immunity for actions which are its core governmental functions.
Houston concluded his memo to SJRA’s employees, “I thought you might appreciate some good news today.”
Is the news good or is the news great?
Houston characterized the news as good. Of course, the circumstances are tragic for the Deweyville and surrounding homeowners who lost their homes and their belongings. Similarly, SJRA has shown a certain almost Frankenstein-like callousness towards homeowners whom the agency flooded with the essentially-unannounced release of Niagara Falls quantities of water – although likely at much higher velocities out of the Lake Conroe Dam than in Niagara Falls.
At the same time, however, the critical factor in considering the SJRA is that the Harvey type of flooding never occurs again in this community.
There is no question that SJRA is the flood control district for all of Montgomery County and surrounding areas within the San Jacinto watershed. Since SJRA’s creation by the Texas Legislature in 1937, during the New Deal era of government expansion, one of its “primary purposes” has been “to provide flood control.”
It’s critical to note that SJRA’s responsibilities and legal duties to provide flood control exist within the entire watershed of the San Jacinto River. Despite efforts by chief apologist County Judge Craig Doyal, SRJA’s General Manager Jace Houston, and others to try to deflect responsibility for flooding on the Lake Creek “watershed” that flows into the San Jacinto River watershed from the west, in actuality Lake Creek flows into the West Fork of the San Jacinto River and is a part of the San Jacinto watershed, as the United States Geological Survey map reveals immediately below.
SJRA has refused to engage in public discussions about how it ought to fulfill its statutory duty “to provide flood control.” County Judge Craig Doyal and SJRA engineering vendor and Doyal business partner Bobby Adams of Halff Associates have tried to argue that the federal government or even the Montgomery County government should pay the millions of dollars that flood control and mitigation will cost. The public has largely ignored their attempted deflections.With Houston’s more relaxed view towards the pending lawsuits against SJRA, perhaps Houston and SJRA’s Board of Directors will open up to public discussion about how SJRA should fulfill its statutory duty “to provide flood control.” With the SJRA facing sunset review during the 2019 Texas Legislative Session, SJRA ought to consider every possible manner in which it can satisfy public concerns to ensure that flooding, as it occurred during Harvey after SJRA opened the Lake Conroe Dam’s gates, never happens again.Hopefully, now that Houston is less worried about lawsuits, SJRA will make itself more transparent and engage the citizens of this community in a meaningful discussion over how to prevent future floods.