We as a community stand in the aftermath of Hurricane Ike. To say that Ike swept us away is a gross understatement. Some on the Texas Gulf Coast felt Ike’s presence with high tide and flooding occurring before the storm made landfall. Those who never met Hurricane Alicia could not believe their eyes. Although damage from flooding is undeniably evident, determining causation liability is more difficult. Separated by few determining factors, legal issues in flooding and drainage require expertise in local, state and federal case law and are not limited to statutory or common law claims. The following is but an overview of drainage and flooding issues in Houston, the current situation and a glimpse of where we may be heading. To do justice to this subject would require much more space than is available here.

 

Flooding is Not a New Issue

Flooding and drainage have always been problems in Houston. Settlers traveling through Houston in the mid to late 1800s reported walking for days west of town in ankle to knee-deep water. Downtown Houston was flooded in the 1930s by Buffalo Bayou, leading to the construction of Addicks and Barker Reservoirs by the Corps of Engineers. These two flood control reservoirs are arguably the best flood control money ever spent in this flat coastal terrain.

 

Applicable Laws, Regulations, and Programs

Harris County Flood Control District (HCFCD) was created in 1937 by the Texas Legislature originally to be a local partner with the Federal Corps of Engineers for these two flood control reservoirs and other flood control projects in and around Houston. The District was also given responsibility for managing our local waterways “for domestic, municipal, flood control, irrigation and other useful purposes.” This important responsibility will be referenced later.

The basic drainage statute is Section 11.086 of the Texas Water Code, which codifies Spanish law that the overland flow of surface water before it enters a watercourse cannot be redirected and/or increased on downstream properties or thrown back on upstream properties. This section is interpreted as a strict liability statute to be used against landowners for their development activities that alter drainage and cause damage to nearby properties.1 Statutes relating to watercourses2 apply once the surface water enters a watercourse (a stream with a defined bed and banks). Although Texans are not supposed to increase the stormwater runoff that flows overland and into the watercourses, extensive development in and around Houston did just that.

In addition to common law and statutory rights to take legal action for flood damages already incurred, governmental regulation and other actions play a major role in preventing development activity from causing undue flood damage. The National Flood Insurance Program provides flood insurance for residents of communities that implement land use controls for high hazard areas based on flood plain maps. Today, virtually all cities and counties on the Texas Coast participate in this federal program, and flood plain maps (and their implications) are part of common parlance in real estate development. Similarly, drainage is regulated by many counties and cities in an attempt to minimize damages due to flooding from land development. There is no question that the placement of concrete and the construction of drainage channels in the flat Texas coast can and does increase stormwater runoff, notwithstanding the prohibitions of Section 11.086 of the Texas Water Code.3

Today in Harris County and certain surrounding counties, we live with the damaging by-product of decades of suburban development. Our flood plains are increasing in size, primarily as a result of upstream development that increases downstream flows and the corresponding flooding. Some homeowners today are in the 100-year flood plain or floodway, even though their same properties are not so shown on prior flood plain maps. Others simply find themselves flooded when they thought they were high and dry. All ask an obvious question:

 

What Happened?

1. The Size of Houston’s Floodplain Grew as Houston Grew

A review of historical flood plain maps show how Houston’s flood plain has increased in size over time. Nowhere is this more evident than on White Oak Bayou where significant changes occurred in the 100-year flood plain map since 1996. In 1996, only 4354 acres were in the 100-year flood plain. By 2007, that number doubled to 9617 acres.  Similarly, the size of the 100-year floodway grew from 2073 acres in 1996 to 3337 acres in 2007. For the most part, the floodplain and floodway increases occurred within already-developed areas. For example, the floodplain now is about one mile wide inside Loop 610 whereas it previously was restricted to a small area along the channel.

Today there is major litigation in Harris County regarding drainage and flooding that will affect all of us. Here is a short summary of certain key cases and issues.

 

   a. The Kerr Case

Kerr v. Harris County is currently pending in County Court at Law No.1.4 This case has twice been ruled upon by the 14th Court of Appeals, once on issues of law and causation, and once on a plea to the jurisdiction that led to the case being refiled in county court rather than district court due to a change in legislative jurisdiction determined after the filing of the original case.5Kerr is based on Article I, Section 17 of the Texas Constitution, claiming inverse condemnation – the homes were taken by Harris County and used for flood storage. Rather than construct a regional flood control plan adopted for the White Oak Bayou Watershed in the late 1980s, the plaintiffs in Kerr allege that Harris County chose not to build critical components of the plan because it found itself short of money. Moreover, developers were allowed to pay money to Harris County in lieu of building on-site detention ponds; thereby allowing additional runoff from upstream development to flow unmitigated downstream into a bayou the county knew had no capacity to handle any more water. The plaintiffs’ claim that Harris County essentially rolled the dice that sufficient funds would be available to complete the project before any big rains came along. Unfortunately, downstream homeowners’ properties were flooded when the county lost the bet, not only in 1998 but also in 2001 - and again in 2002. Because of the county’s choice, the plaintiffs argue that downstream properties of those living adjacent to the bayou, but out of the flood plain, were used to store those additional flood waters.

Kerr has generated substantial defense theories, many of which were rendered moot. The initial lawsuit was challenged on the basis that a permanent taking cannot be generated by a single flood event (although constitutional damaging might be). However, the occurrence of two subsequent flood events that damaged most of the same homes rendered that defense moot. Other defense theories such as Act of God – e.g., the rainfall amount was unprecedented – have been dropped in subsequent admissions and/or responses to interrogatories. The case now comes down to whether the intentional failure of Harris County to construct the regional flood control plan with its substantially certain consequences of downstream flooding will be found the primary cause of damages suffered by the flooded residents.

This case is headed to trial in early 2009. For over nine years, no jury has heard these claims. This is due at least in part to the operation of the Plea to the Jurisdiction, a judicial tool that appears to deny plaintiffs the right to a speedy trial when they sue the government.

It is interesting to note that the change in the extent of flooding along White Oak Bayou first raised in Kerr in 1999 is now ratified by recent changes in the official flood plain map. Although the citizens included in the Kerr litigation may have a chance for compensation, many other downstream residents now find themselves in areas labeled “flood-prone” with no available compensation for damages.

 

2. Flood Plain Maps Are Not Accurate

The concept behind flood plain regulations is that risks inherent in the development of certain high hazard areas are identified on flood plain maps and then regulations are passed to insure the safety of housing and other developments to be located in such areas. The flood plain regulations are based on maps that delineate the 100-year flood plain – the area flooded by a storm recurring once every 100 years, and the 100-year floodway – the area within the flood plain where most of the water actually flows. Under the federal program, development is allowed within the 100-year flood plain outside of the 100-year floodway if minimum slab elevation restrictions are met. More restrictive regulations apply to development within the 100-year floodway.

It is extremely important that the flood plain maps for the community are accurate. After tropical storms Frances and Allison, major efforts were taken to redo the Harris County flood plain maps due to obvious inaccuracies. The results of the remapping can be seen at the web site http://www.tsarp.org/. These flood plain revisions clearly show the increased amount of area now within the 100-year flood plain and 100-year floodway in Harris County, particularly on White Oak Bayou from Beltway 8 eastward through the Houston Heights to downtown.

Several issues were raised over the accuracy of these new flood plain maps. The publication of flood plain maps takes place under the auspices of the Federal Emergency Management Agency (FEMA) as an administrative law process under the federal Administrative Procedure Act. Notice of the availability of draft flood plain maps is published in the Federal Register. Opportunity is provided for public review and comment. Anyone wishing to complain about the accuracy of a flood plain map must submit written comments or file an appeal. FEMA takes the position that a request for a change in the draft map must also be accompanied by technical computer modeling demonstrating the error of the proposed maps. This task is so financially daunting that individual property owners and most homeowner associations, by default, lack a voice in the process.

 

   a. The Sierra Club Case

Key litigation over inaccurate flood plain mapping and the commenting process was recently filed in federal court in Houston. Sierra Club v. FEMA, et al., filed in 2007, is pending in Judge Lee Rosenthal’s court.6 This case arises over the remapping of the flood plain for Cypress Creek, a major watercourse that rises in Waller County, meanders southeast and then northward, ultimately flowing easterly across northern Harris County where it empties into the San Jacinto River and Lake Houston. The area of concern in the litigation is in the upper portion of the watershed, west of the U.S. 290 crossing of Cypress Creek in the Katy Prairie.

Although the Sierra Club brought this lawsuit, several other parties, including Houston Voters Against Flooding (HVAF) and the Cypress Creek Flood Control Coalition (CCFCC), submitted comments on the Draft map. The basic contention is that the flood plain elevation depicted on the flood plain maps along Upper Cypress Creek is as much as four feet too low. There have been at least two storms in the last ten years that were less than 100-year rain events and generated flood flows measuring four feet higher than the revised map indicated along Cypress Creek at the gauge at Katy Hockley Road. The Sierra Club was concerned about this identified error because development could occur in areas of the Katy Prairie without being subject to flood plain rules and federal wetland rules (due to a linkage between federal wetland jurisdiction and flood plain maps). The Cypress Creek Flood Control Coalition was concerned that the computer modeling used to create these flood plain maps showed too much water flowing downstream from the upper watershed, meaning that the flood plains farther downstream on Cypress Creek were too large. However, FEMA ignored these comments. But, a developer on Little Cypress Creek also opposed the TSARP map, based on the same issue raised by the CCFCC, but submitted revised analyses. Therefore, FEMA accepted the developer’s comment.

As a result of the pending federal litigation and local pressure on the map’s creator - the HCFCD - to correct the errors, the 100-year flood plain map for Cypress Creek is now in the process of being corrected through a FEMA process known as a Letter of Map Revision (LOMR). At this time, the federal court receives reports from FEMA that track the progress of the LOMR process that will lead to a much larger flood plain in the upper portion of Cypress Creek. In fact, the flooded area is sufficiently larger than it originally appeared to such an extent that the flood waters will now flow over the watershed divide and into Addicks Reservoir. To date, this overflow area has not been fully identified on the flood plain maps, and the overflow area which feeds into the Buffalo Bayou watershed is not included in this LOMR, yet there is little doubt that this overflow area exists.

GGP-Bridgelands, the owner of a 13,000 acre tract, was displeased with the proposed LOMR and was granted permission to intervene in the federal case. While only 1,500 acres of the GGP tract was in the Cypress Creek flood plain before the map revision, the revised map shows a significantly larger percentage as being flood-prone. Judge Rosenthal has stayed Sierra Club until the LOMR is accepted, or until April 8, 2009. In the meantime, FEMA must report to the court every two months on the status of the LOMR as it progresses through the FEMA process.

 

3. Housing Regulations Tied to Hurricane Surge Tides are Inconsistent

Hurricane Ike caused the issue of coastal flooding to be clearly visible. The Bolivar Peninsula is virtually wiped out. Aerial photos of the City of Gilchrist show that few structures remain, if any. Substantial damage was done to the West End of Galveston Island as well as the City of Galveston and west shoreline of Galveston Bay. But as bad as Ike was, it was not a Category 4 storm. The night before Ike hit, a storm surge as high as 25 to 30 feet was predicted for Galveston Bay, the same as the surge tide that hit the Mississippi Coast with Hurricane Katrina. Luckily, the “eye” slid to the north and Galveston Bay missed the dirty side of Ike. Our coastal damage, which was extensive, could have been substantially worse.

The National Flood Insurance Program involves the regulation of development along the coast in addition to insurance. However, there seems to be a disconnect between the 100-year “flood” elevations found on the FEMA flood insurance maps and the range of surge tides that are predicted along the Texas coast in association with major hurricanes. In fact, there is a major discrepancy.

FEMA flood insurance maps provide elevations for setting the first floor slab of homes along the Gulf Coast. On the West end of Galveston Island, these elevations are approximately 16 to 17 feet, and are of a similar height along the west side of Galveston Bay. However, about two hundred feet inland, the higher surge tide elevations no longer apply. New construction in the Clear Lake City area, for example, as well as in the areas of Kemah, Seabrook and Shoreacres, all somewhat removed from the shoreline, are required to meet slab elevations of about 12 feet above sea level. Surge tide models from the University of Texas show the entire Houston area east of Interstate 45 to be subject to inundation from a 22- foot surge tide that would likely accompany a Category 4 storm, with wind-driven waves atop that surge tide. Unbelievably, we as a community are allowing new construction with slabs at such low elevations. No doubt that we are asking for a new disaster unless we change these maps and change them soon. We are doing no one a favor by keeping these flood elevations so low.

Homes are not the only developments regulated by coastal flood elevations. Virtually all hazardous waste storage, industrial waste disposal, solid waste disposal, radioactive waste storage and wastewater treatment plants as well as oil storage tanks are subject to siting regulations by the Texas Commission on Environmental Quality and the U.S. Environmental Protection Agency. These regulations routinely require that these types of facilities be protected from a 100-year flood. In the case of the Houston Ship Channel, this flood level is about ten feet lower than the storm surge projected for the Ship Channel in association with Hurricane Ike. We are fortunate that this disaster did not occur. However, we are now warned of the inadequacy of our current level of protection from flooding along the Ship Channel and other coastal areas.

If a Category 4 storm occurs and, as a result, hazardous waste becomes spread over neighborhoods adjacent to the storage area, would there be any liability for such an event? Would the waste companies owe any liability to their neighbors? Is it sufficient to respond that the company built its facility to government requirements even if it were clearly reasonable on the basis of Katrina and Rita and Ike to expect a much higher coastal surge tide than was shown on the maps? The courts will be filled when such events occur and these questions will be answered.

 

Conclusion

It is unfortunate that government regulations are inadequate to protect our property from becoming flood-prone due to upstream development, and to protect us from hazardous waste being flushed out of storage areas. More independent oversight and accountability must occur. Moreover, it is virtually impossible for government entities such as the Harris County Flood Control District to provide adequate flood prevention and protection to the community as long as it is governed by a Commissioner’s Court that is responsible to its constituents (contributors) for an ever increasing tax base. Additionally, as long as it is easier for developers to claim a regulatory taking due to stronger regulations than for homeowners to claim property damages due to a lack thereof, the scales of justice will remain unbalanced. But times, they are a-changing. In the last few seasons, costs continue to increase and economic losses continue to soar. We have seen with Ike that the Feds are not as loose with the cash flow as they were after past storms. When communities fail to be subsidized for reckless planning, they will start to pay attention. And, just maybe, a jury will render judgment.

 

James B. Blackburn, Jr. is a partner at Blackburn Carter, P.C., a firm devoted to environmental law and planning, and a professor of the practice in the Department of Civil and Environmental Engineering at Rice University. A graduate of the University of Texas School of Law with an M.S. in environmental science from Rice University, he is the co-founder of Houston Wilderness, the Matagorda Bay Foundation and the Galveston Bay Foundation.

Lawrence G. Dunbar is a senior partner at Dunbar Harder PLLC and a registered professional engineer specializing in hydrology. He has a B.S. dgree in civil engineering from the University of Notre Dame, an M.S. in environmental engineering from the Illinois Institute of Technology, and a law degree from the University of Houston Law Center.

 

Endnotes

1. See Kraft v. Langford, 565 S.W.2d 223 (Tex. 1978).   2.Tex. Water Code §§ 16.236 & 16.237.   3. In this regard, no bayou is more infamous than Brays Bayou in southern Harris County, which became the “poster child” for flooding caused by urban development upstream.   4.Kerr v. Harris County, No. 837,329 (Co. Ct. at Law No.1, Harris County, Tex., August 27, 2008) (Set for Trial Feb. 9, 2009).   5.Kerr v. Harris County, No. 01-02-00158-CV, 2005 WL 568403 (Tex. App.—Houston [1st Dist.], March 10, 2005).   6.Sierra Club v. FEMA, No. 4:07-cv-00608, (S.D. TX, Aug. 11, 2008).

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