Gabriel Eckstein, friend, Professor extraordinaire and Director of the Texas A&M Law School's Program in Natural Resources Systems, and Howard S. Slobodin, General Counsel of the Trinity River Authority of Texas, supervised TAMU law students David Ayala, Ashley Graves, Colton Lauer, Henrik Strand, Chad Taylor, Kyle Weldon, and Ryan Wood in the writing of the report:'Flooding Events Post Hurricane Harvey: Potential Liability for Dam and Reservoir Operators and Recommendations Moving Forward'.
Download Flooding Events Post Hurricane Harvey
Here is the blurb that Gabriel sent around with his email:
A new report from Texas A&M University School of Law considers what liability dam and reservoir operators might face in light of the massive flooding that occurred in the Houston area following Hurricane Harvey: Flooding Events Post Hurricane Harvey: Potential Liability and Dam and Reservoir Operators and Recommendations Moving Forward.
Developed in the context of a capstone course, the student-written report reviews current dam and reservoir operations in Texas and examines relevant legal issues—such as inverse condemnation, sovereign immunity, water law, land use, tort liability, and others—that might arise in claims related to actions taken by dam operators in response to storm and flooding events. It also offers best practices recommendations for dam operations, including flooding notifications and building community relations, as a means to engage and educate the public, and thereby reduce the potential for disputes and litigation.
The full report can be accessed at www.law.tamu.edu/flooding..
Here is the Executive Summary:
When Hurricane Harvey hit the Texas coast as a category 4 hurricane on August 25, 2017, it resulted in $125 billion in damage, rivaling only Hurricane Katrina in the amount of damage caused. It also resulted in the deaths of 88 people and destroyed or damaged 135,000 homes. Much of that devastation was the result of flooding. The storm dumped over 27 trillion gallons of rain over Texas in a matter of days. Some parts of Houston received over 50 inches of rainfall.
The potential liability that dam and reservoir operators may face for decisions they make during storm and flooding events has now become a major concern for Texas citizens and its elected officials. Law suits have now been instituted against the federal government for its operation of two flood control reservoirs, as well as against the San Jacinto River Authority for its operation of a water supply reservoir. Moreover, the issues and concerns have been placed on the agenda of a number of committees preparing for the 2019 Texas legislative session.
This report reviews current dam and reservoir operations in Texas and examines the potential liability that such operators may face for actions and decisions taken in response to storm and flooding events. In Section III, the report reviews dam gate operations and differentiates between water supply reservoirs and flood control reservoirs. It also considers pre-release options and explains why such actions are disfavored and not recommended.
In Section IV, the report evaluates liabilities and defenses applicable to dam and reservoir operators. It explains how governmental immunity can limit the exposure of state and federally-run facilities to claims seeking monetary damages. It also discusses how such entities could be subject to claims of inverse condemnation, which generally are not subject to governmental immunity, under Texas law as well as under the Fifth Amendment to the U.S. Constitution. In addition, the Section discusses negligence and nuisance claims and concludes that plaintiffs asserting either or both of these claims will have difficulty presenting successful arguments for flooding-related damage and harm against operators who act reasonably in the face of storm-related precipitation.
Finally, Section V offers recommendations that dam and reservoir operators might pursue in order to engage and educate the public and thereby reduce the potential for disputes and litigation. Specifically, the report highlights the need for expanded community outreach efforts to engage with municipalities, private land owners, and the business community in flood-prone neighborhoods both below and above a dam. It also recommends implementation of proactive flood notification procedures as a way of reaching and alerting as many people as possible of potential and imminent flooding events. Finally, the report proposes implementation of a dispute prevention and minimization mechanism and offers recommendations for the design and execution of such a program.
The report is the work product of students enrolled in the Natural Resources Systems Capstone Seminar at Texas A&M University School of Law under the supervision of Gabriel Eckstein, Professor of Law and Director of the TAMU Law Program in Natural Resources Systems, and Howard S. Slobodin, Adjunct Professor of Law and General Counsel of the Trinity River Authority of Texas.
Great experience for the students and an important publication.
Enjoy!
"No single raindrop believes it is to blame for the flood." - E. L. Kersten
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