Analysis: It was a "taking," but who got taken?

In Harvey's Wake

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Thousands of homes that flooded after Hurricane Harvey were built in two huge dry reservoirs — places built to fill up with water during extraordinarily heavy rains to protect downstream areas including much of metropolitan Houston.

They were in a spot that had not flooded before, but the maps and the dams and the watershed all point to the inescapable fact that enough water — and Harvey brought enough — would fill the Addicks and Barker Reservoirs. It’s all spelled out in an astonishing story from Neena Satija, Kiah Collier and Al Shaw for The Texas Tribune, Reveal and ProPublica.

Crazy, right? But there’s more to it — and this is not the way you’d expect property rights to rear up in a story about flooding. Government officials were apparently concerned that telling people about the potential for flooding — however unlikely it might be — would constitute a “taking” that would diminish the value of those properties and require the governments to repay the landowners for the lost value.

Whether by commission or omission, the folks who built in the reservoirs and the folks who allowed them to do so put commercial interests ahead of public interests. It’s a “taking” when you tell potential homebuyers that the houses they’re considering are on low ground?

That’s not a taking — that’s transparency. If people want to build houses in a dry lake, you might as well tell their customers to bring swimsuits.

To be sure, the amount of rain Harvey brought to the Gulf Coast astonished everyone. Fort Bend County Judge Robert Hebert told those reporters that he and other officials didn’t even consider the possibility that the reservoirs would collect so much water.

“To be perfectly honest with you, nobody had ever discussed with me the risk of inundation to the degree we had,” he said. “I was vaguely aware that if we got high enough, we could get water in those streets ... It was just something that was incomprehensible.”

It was comprehensible enough to discuss at the time, though. Fort Bend County officials raised questions about building in the reservoirs in the 1990s, but they proved to be more nervous about blocking development or putting homes on higher ground than about future homeowners. They buried a one-line disclosure about “controlled inundation” — a lawyerly way to hide in plain sight.

Now that the reservoirs have done what they were built to do, and houses built in those reservoirs have flooded, insurers and homeowners are reading through the fine print and trying to sort out who knew what and when they knew it. Some are suing the government for flooding their houses by letting the water back up.

But that “taking” business is curious. Property rights have always been a big deal in Texas politics. Look into a fight over a highway or a high-speed rail plan and you’ll find landowners who’d be affected and who can cite you chapter and verse on eminent domain law. Ask landowners on the Texas-Mexico border about building a big, beautiful wall and you’ll find the same concerns about the future value and use of their land.

What happened in Harris County’s big reservoirs was a government action that added value to land without requiring the landowners to compensate the governments making the changes. This wasn’t a taking — it was a “giving.” Land that would have been worth a certain amount as part of a flood plain was administratively elevated — effectively declared dry by the officials who didn’t require disclosure that the streets and homes were being installed in a reservoir.

That government action — or inaction, if you prefer — artificially increased the value of the land. The developers were able to price reservoir land like the high ground nearby.

Twenty years later, Hurricane Harvey blew in with a market correction — and now the unfortunate homeowners know what their land was actually worth when they bought it.