Hurricane Harvey was a Category 4 major hurricane that made landfall in southern Texas on August 25, 2017. Harvey is the wettest tropical cyclone on record in the United States with peak accumulations of 64.58 inches. Harvey was a unique storm because it stalled and meandered over the Texas coast and the Gulf of Mexico for a period of several days. Texas’ Governor Greg Abbott reported that estimated damages are between $150-$180 billion. The Insurance Council of Texas projects total insured losses at $19 billion.
During the unprecedented rainfall, governmental entities intentionally decided to release water from three dams — the Addicks dam, the Barker dam, and the Lake Conroe dam. The releases of water were devastating to homes, businesses, and properties downstream of the release. The releases were justified as being necessary to prevent widerspread flooding if the dams had breached. Thus, the government deliberately chose to flood some properties for the benefit of the public at large. The U.S. Army Corps of Engineers controlled the releases from the Addicks and Barker dams. The San Jacinto River Authority controlled the release from the Lake Conroe dam.
This type of action fits squarely within the principles of an inverse condemnation claim based on the Fifth Amendment to the U.S. Constitution and Article I, Section 17 of the Texas Constitution. The Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.” Article I, Section 17 of the Texas Constitution provides: “No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made.” When the government takes property without first going through statutory condemnation procedures, the property owner’s claim, based on these constitutional protections, is called an inverse condemnation claim.
Insurers who pay Hurricane Harvey claims for damage caused by the intentional releases may have viable subrogation claims against the U.S. Army Corps of Engineers, the San Jacinto River Authority, and potentially other governmental actors.
