Frequently Asked Questions

Below are some common questions home and business owners have related to the Army Corp of Engineers “controlled release” of water from the Barker and Addicks reservoirs that caused severe flooding. If you have any questions, don’t hesitate to contact us at (713) 999-4552.

Who is Responsible for the Addicks and Barker dams and reservoirs?

Both the Addicks and Barker dams and reservoirs are operated and maintained by the U.S. Army Corps of Engineers (the “Corps”). As such, the dams and reservoirs are the responsibility of the United States government.

What is the purpose of the Addicks and Barker dams and reservoirs?

The dams exist for flood protection purposes, and are meant to protect downtown Houston and the Houston ship channel. The dams are treated as a single project.

The dams were originally built in the 1940s as part of the Buffalo Bayou Project, which was created in response to the 1929 and 1935 flooding of downtown Houston. The original Buffalo Bayou Project included construction of three detention reservoirs as well as construction of two relief canals that would have conveyed releases from Addicks and Barker to Galveston Bay. Additionally, a levee was to be constructed along the Buffalo Bayou and Cypress Creek watershed so as to prevent overflows from Cypress Creek from entering the Addicks reservoir. However, neither the White Oak levee nor the relief canals were built. Additionally, while improvements and enlargement of Buffalo Bayou were authorized in the 1954 Flood Control Act, less than 7 miles of Buffalo Bayou were actually improved.

During significant weather events the Corps uses the dams to impound all stormwater entering the reservoirs’ respective watersheds until the storm event ends. The Addicks watershed comprises ~130 square miles, and includes various tributaries (e.g. South Mayde Creek, Bear Creek, Langham Creek, Horsepen Creek, and Turkey Creek). The Barker watershed comprises ~136 square miles, and includes various tributaries (e.g. Willowfork Diversion Channel, Upper Buffalo Bayou/Cane Branch, and Mason Creek). Thus, the Corps operates Addicks and Barker as “detention” reservoirs.

The dams are earthen embankments that are about 25.5 miles long. Originally, all but one of the dams’ conduits were ungated, which permitted uncontrolled discharge of 15,700 cubic feet per second (“cfs”) of stormwater down Buffalo Bayou. However, in light of the fact that Buffalo Bayou’s channel capacity can’t handle releases of this magnitude the Corps elected to install gates to reduce reservoir releases in 1948, which reduced releases to 7,900 cfs. Then, in 1963, the Corps gated the two remaining conduits, which allowed the Corps to impound all watershed stormwater. The addition of these gates led to seepage issues, and the Corps completed substantial modifications of the dams in 1982.

The dams have maximum pool elevations, which are 115 feet and 108 feet for Addicks and Barker, respectively. However, the Corps only purchased property within the reservoir area to store 103.1 feet and 95 feet of impounded stormwater. As such, properties that are within these maximum pool elevations are within the reservoir’s project boundaries, and the Corps can and will store impounded stormwater on this private property in connection with the Corps’ standard operation procedures.

Additional modifications were made to the dams during 1986-1989 to comply with the Dam Safety Assurance Program. These modifications included raising the dams’ elevations, as well as installing erosion protection (i.e., concrete “armoring”) at the lower ends of the dams so that the ends serve as overflow spillways. Corps documents make clear that, with these updates, Addicks and Barker can impound stormwater associated with 40 inches of rain falling in 72 hours. During Tropical Storm Harvey, there was roughly 30-35 inches of rain in the Addicks and Barker watersheds during a six-day period. Thus, the dams were designed and built to impound rainfall for storms larger than Harvey.

How did the Corps operate the Dams during Harvey?

The Corps operates the dams and reservoirs pursuant to their water control manuals with the overall objective of protecting downtown Houston and in the ship channel from catastrophic flooding. This is accomplished by utilizing the dams to impound stormwater by using, to the maximum extent possible, the available storage capacity within the reservoirs. However, the Corps only owns ~65% of the total reservoir storage capacity in Addicks and only 50% of the total reservoir storage capacity in Barker. This means that the Corps’ standard operating procedure is to, when necessary, store impounded stormwater on private upstream land.

During Harvey, the Corps used the dams to impound trillions of gallons of impounded stormwater, and intentionally used private land to store this impounded stormwater. The impounded stormwater in Addicks started inundating private land at roughly 1 pm on Monday August 28, 2017; this invasion continued until September 7th. The impounded stormwater in Barker started inundating private land at roughly 4 am on Monday August 28, 2017; this invasion continued until September 9th. Hence, as a direct result of the Corps use of the dams during Harvey, thousands of upstream property owners were submerged for several days.

The Corps current (2012) water control manual states that the Corps will not release water as long as the Piney Point gaging station exceeds 2,000 cfs. However, when the reservoir pool gets to 101 feet at Addicks and 95.7 feet at Barker, the Corps implements an “induced surcharge regulation schedule” for each dam (these elevations roughly correspond to the limits of government-owned reservoir land, which are 95 feet and 103 feet for Addicks and Barker). Once the reservoir pools reach 101 feet and 95.7 feet, the Corps’ water control manual proscribes opening the gates to release various quantities of the impounded stormwater up to a maximum of 16,000 cfs. These releases are called “surcharge releases.”

At ~1 am on Monday, August 28 2017, the Corps began making surcharge releases from Addicks and Barker reservoirs. These surcharge releases were initially ~1,096 cfs for Addicks (1am 8/28/17) and 1,074 for Barker (8am 8/28/17). The Corps steadily increased the surcharge releases, which eventually reached 7,500 cfs for Addicks (10 pm Tuesday 8/29/17) and 6,300 cfs for Barker (11pm Tuesday 8/29/17).

The combined surcharge releases of 13,802 cfs continued until September 9th. Thereafter, the Corps reduced the combined surcharge releases to 3,600 cfs. Releases at this level continued until October 9th for Addicks, and October 3rd for Barker

By all accounts these surcharge releases were unprecedented. The Corps was clearly aware that surcharge releases would submerge a large percentage of the “downstream” structures. Thus, while the surcharge releases that were made pursuant to the Corps’ standard operating procedures may have been necessary to avoid greater damage, hundreds of West Houston property owners are now dealing with catastrophic damage to their homes and personal property due to the additional water flow.

Why is there development in the reservoirs?

Beginning in the late 1970s, private land developers upstream from the reservoirs sought permission to extend channel improvements onto government-owned land. These channel improvements were necessary to facilitate land development, as the enhanced drainage associated with these improved channels reduced the size of the upstream floodplain. Indeed, internal Corps documents make clear that without construction of these improved channels the upstream areas could not be developed in light of applicable floodplain regulations.

The Corps steadfastly refused to grant permission to the upstream developers because the Corps believed that channelization onto government-owned land would: increase the inflow of sediment thereby resulting in a loss of storage capacity; produce faster stormwater runoff into the reservoirs; increase runoff volumes resulting in larger and more frequent impoundments; and because the channelization would reduce the flood zones resulting in more development.
However, in 1981 the Corps’ Galveston district compromised and allowed the developer’s requests to build improved channels that extended well into government-owned land. As predicted by the Corps, what followed was the rapid urbanization of the upstream areas that are literally part of the Corps’ project.

What is an Inverse Condemnation Claim?

If you own residential or business property that was inundated by Addicks or Barker stormwater, you may an inverse condemnation claim for Just Compensation under the 5th Amendment’s Takings Clause. The 5th Amendment’s Takings Clause is designed to bar the government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole.

Normally, the Government makes a determination that it needs to take land for a public purpose, and then condemns the land and pay the owner Just Compensation. An inverse condemnation case works backwards: the Government takes the property first, and the property owner must file a lawsuit to recover Just Compensation.

The United States Supreme Court has held that claimants asserting an inverse condemnation claim associated with government-induced flooding must establish: (1) a protectable property interest under state law; (2) the character of the property and the owners’ “reasonable-investment backed expectations”; (3) the degree to which the invasion was intended, or was the foreseeable result of the government’s decision; (4) the flooding was the “direct, natural, or probable result” of the government’s decision; and (5) that the government’s decision had a substantial or severe impact on the affected property. Stated simply, government-induced flooding can constitute a taking of property for which Just Compensation is owed. Notably, proving an inverse condemnation case doesn’t require proof of negligence or wrongdoing.

Did the Corps obtain flowage easements on private property?

No. We verified this fact during our pre-suit investigation, during which we obtained internal Corps documents that make clear that the Corps never obtained flowage easements giving it the right to inundate private property.

How long do these types of cases take?

Inverse condemnation cases in the U.S. Court of Federal Claims (“CFC”) traditionally take several years to decide. However, we believe that this case will be adjudicated much more quickly than normal.
For example, the November 20th Order appointing Williams Kherkher Partner Armi Easterby as Co-Lead Counsel also set deadlines for the speedy disposition of this case. Since then, Judge Charles Lettow was assigned the Upstream case. At the present time the liability trial for the Upstream case will proceed in February of 2019, and the liability trial of the Downstream case on April of 2019.

What does Lead Counsel do?

As Co-Lead Counsel, Mr. Easterby is responsible for conducting pre-trial discovery, drafting and responding to dispositive motions, and serving as trial counsel at the trial that will determine whether the Government is liable under the 5th Amendment’s Takings Clause for Army Corps’ use and operation of the Addicks and Barker dams and reservoirs before, during, and after Tropical Storm Harvey.

Pursuant to the Co-Lead Counsel appointment, Mr. Easterby is, together with three other lawyers, responsible for: (i) gathering and serving pre-trial disclosures and discovery documents on or before January 30th; (ii) completing pre-trial discovery, including expert discovery, between February 28th and May 31st; (iii) handling any motions for summary judgment between June 15th and July 31st; and (iv) serving as trial counsel for plaintiffs.

Is there a Deadline for Filing my Inverse Condemnation Claim?

On November 20, 2017, the Chief Judge for the U.S. Court of Federal Claims (“CFC”) issued an Order setting a deadline for filing amended complaints against the Government. Per that Order, the current deadline for filing amended complaints is January 15, 2018.

However, the January 15th deadline is not the same as the statute of limitations for an inverse condemnation claim. The applicable statute of limitations expires six (6) years after the “accrual” of the inverse condemnation claim. We believe that applicable law is clear that the inverse condemnation claim accrues at the time of the physical invasion of plaintiff’s property. For example, in Sponenbarger v. United States, 308 U.S. 256, 267 (1939), the Supreme Court held that a takings claim could be valid only after the plaintiff had actually experienced flooding imposed by federal action. Thus, under well-settled law the apprehension of flooding does not constitute a taking. Accordingly, we believe that the statute of limitations will expire in late August 2023.

Further, the inclusion of a landowner’s property in a survey, plat, or map of properties that are expected to be acquired and/or inundated does not constitute a taking. This is important to the extent any surveys, plats, or maps include language that private land could be subject to extended controlled inundation under the management of the U.S. Army Corps of Engineers.

Did the Corps know “upstream” Properties would flood?

As discussed above, the degree to which the flooding was intended or foreseeable is part of proving an inverse condemnation claim. Based on our internal investigation, we believe that the Corps was well aware that its management and operation of the dams would inundate “upstream” homes and businesses (i.e., properties located within the Reservoirs’ respective project boundaries). While the decision to make use of private property arguably served the public’s interest, the Corps knew its management and operation of the Addicks and Barker dams would cause major flooding and substantial damage to “upstream” property owners. The Takings Clause is designed to bar the government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole.

As discussed above, the Corps operates the dams and reservoirs pursuant to their water control manuals. During significant weather events the Corps uses the dams to impound all stormwater entering the reservoirs’ respective watersheds until the storm event ends. However, the Corps only owns ~65% of the total reservoir storage capacity in Addicks and only 50% of the total reservoir storage capacity in Barker. This means that the Corps’ standard operating procedure is to, when necessary, store impounded stormwater on private upstream land.

During Harvey, the Corps used the dams to impound trillions of gallons of impounded stormwater, and intentionally used private land to store this impounded stormwater. The impounded stormwater in Addicks started inundating private land at roughly 1 pm on Monday August 28, 2017; this invasion continued until September 7th. The impounded stormwater in Barker started inundating private land at roughly 4 am on Monday August 28, 2017; this invasion continued until September 9th. Hence, as a direct result of the Corps use of the dams during Harvey, thousands of upstream property owners were submerged for several days.

Internal Corps documents show that the Corps knew its use of the dams to impound Harvey’s stormwater would submerge thousands of upstream homes and businesses. The reason for this is simple: “both Addicks and Barker Dams can impound or store more water than the Corps owns real estate to store it on.” The Corps was similarly well aware that its use of the dams would “severely impact” thousands of properties within the dams’ project boundaries for an extended period of time. In other words, the Corps operates the Reservoirs such that it can store more floodwater than it owns property on which to store it.

On August 28th, the Corps admitted that “water from Addicks and Barker dams extend beyond government-owned reservoir land.” Stated simply, by August 28th the Corps had purposefully invaded private property by inundating hundreds of homes and businesses with stormwater trapped behind the Addicks and Barker dams.

Did the Corps know “downstream” properties would flood?

As discussed above, the Corps current (2012) water control manual states that when the reservoir pool gets to 101 feet at Addicks and 95.7 feet at Barker, the Corps implements an “induced surcharge regulation schedule” for each dam. Once the reservoir pools reach these elevations, the Corps’ begins making “surcharge releases.”

At ~1 am on Monday, August 28 2017, the Corps began making surcharge releases from Addicks and Barker reservoirs. These surcharge releases were initially ~1,096 cfs for Addicks (1am 8/28/17) and 1,074 for Barker (8am 8/28/17). The Corps steadily increased the surcharge releases, which eventually reached 7,500 cfs for Addicks (10 pm Tuesday 8/29/17) and 6,300 cfs for Barker (11pm Tuesday 8/29/17).

The combined surcharge releases of 13,802 cfs continued until September 9th. Thereafter, the Corps reduced the combined surcharge releases to 3,600 cfs. Releases at this level continued until October 9th for Addicks, and October 3rd for Barker

The Corps’ internal documents also demonstrate it knew higher release rates would flood downstream properties. Indeed, using its own elevation surveys, the Corps determined that the lower level of homes near the West Beltway Bridge are submerged when the Corps discharges 4,100 cfs into Buffalo Bayou. At flows greater than 4,100 cfs, the Corps knew that “a large percentage” of structures between the bridges over Buffalo Bayou at North Wilcrest Drive and Chimney Rock would incur flood damage. In accordance with its own Flood Emergency Plans, the Corps prepared detailed “inundation” maps detailing the areas that would experience flooding at these higher release rates. Further, the Corp’s 2012 water control manual includes detailed drawings showing the specific properties that will be submerged at various surcharge release rates.

Accordingly, the Corps knew these releases would flood downstream homes. While the decision to open the floodgates arguably served the public’s interest, it was foreseeable that doing so would cause increased flooding and substantial damage to “downstream” properties.

Wasn’t the Government-induced flooding an “Act of God?”

No. In its legal sense, an “Act of God” applies only to natural events as opposed to man-made events. Here, the Corps’ use of the dams during Harvey caused both the upstream and downstream inundation. Additionally, “Act of God” weather events refer to unforeseeable events. Here, the Corps designed the dams to impound rainfall from storms larger than Harvey. Accordingly, the Corps cannot claim that Harvey was an unforeseeable storm.

Is one Government-induced flood enough to create a taking?

The Government has already taken the position that, as a matter of law, a single flood is not a taking. We disagree, and believe that the Government has misstated the U.S. Supreme Court’s holding in Arkansas Game & Fish Comm’n v. United States. A recent Court of Federal Claims decision held that even one government-induced flood may trigger the Government obligation to pay just compensation:

it is conceivable that a takings might lie where defendant, using a permanent structure, purposely floods a property once and expressly reserves the right to do so in the future. In this instance, it is conceivable that defendant’s actions may be viewed not as an “isolated invasion,” but rather as reserving a flowage easement over the affected property.

Quebedeaux v. United States, 112 Fed. Cl. 317, 324 (2013).

Here, the Corps purposefully inundated thousands of properties pursuant to its standard operation procedures by using permanent structures (i.e., the Addicks and Barker Dams and Reservoirs). Accordingly, given the design, management, and operation of these dams, the Government has also expressly reserved the right to repeatedly flood private property in the future.

The United States Supreme Court has also made clear that, in cases like these, the analysis should focus its attention on the substantiality of the injury rather than the frequency with flooding occurred as a result of government structures. This makes sense, as submersion of raw land is dramatically different than submersion of a private residence or business. In other words, while it may take repeated submersions to damage raw land, even a single submersion will inflict massive damage on a dwelling or a business. That being the case, it would make no sense to allow the government to intentionally submerge Houston property-owners once for free.

As such, we believe that the Government is simply mistaken about this issue, and that it is unlikely that the Court will accept this argument.

What does “Just Compensation” include?

The 5th Amendment’s Taking Clause forbids the Government’s taking of private property for public use without “Just Compensation.” The United States Supreme Court has defined Just Compensation as the value of the property of which the owner has been deprived. Stated differently, the property owner is entitled to be restored to “as good a position pecuniarily as if his property had not been taken,” and “must be made whole.” The United States Supreme Court has reiterated that measuring Just Compensation is not amenable to a rigid formula, and that courts should adjust their approach to damages to fit the situation before them. Not all losses suffered by the claimant as a result of the taking are compensable, and the appropriate amount of damages depends largely upon the particular circumstances in each case.

Under “temporary taking” circumstances we believe the Government should pay Just Compensation for the “direct, natural, or probable results” of the Corps’ operation and management of the dams. As recognized by the U.S. Court of Appeals for the Federal Circuit, Just Compensation includes compensation for diminished property values, for the “cost to cure” damaged improvements (i.e. remediating and repairing permanent structures, landscaping, and fences), and for damaged personal property (e.g. furniture, clothing, etc.).

Additionally, we believe that applicable law entitles us to recover reasonable costs and expenses, including filing fees, appraisal fees, engineering fees, and other costs and expenses actually incurred in the litigation. The recovery of these costs and expenses would increase the gross recovery obtained, with the overall goal is to ensure that the client is made whole.

Aren’t there already class actions that cover me?

Class actions in the Court of Federal Claims are substantially different than typical class actions. In the class action context, the Court of Federal Claims uses CFC Rule 23, which only allows “opt-in” classes, as opposed to the traditional opt-out class actions. Accordingly, nobody is part of a class action until and unless it is certified by the Court, and individuals decide to “opt-in” that class action. This means that all property owners will have to file a lawsuit before opting in to a class action (assuming one is ever certified). Armi Easterby was appointed to serve as Co-Lead Counsel with instructions to “ensure that the interests of individual plaintiffs are represented.”

Additionally, while several class action lawsuits relating to the Addicks and Barker releases have been filed by various attorneys, none have been certified as class actions. Chief Judge Braden’s November 20th Order states the issue of class certification is “premature at this juncture.” During a recent hearing Judge Lettow indicated that he’s not inclined to certify a class action.

We agree that the issue of class certification is premature at this point in time. Until and unless a class is certified it is impossible to make an informed decision as to whether to “opt in” a class action. If and when the Court determines that the Government is liable, the Government may want to enter into a class action settlement agreement, which would ostensibly provide a procedural framework for compensating property owners. At that time, it may make more sense of individual claimants to opt in to that class, as by doing so they would ostensibly be entitled to just compensation under the 5th Amendment.

Does it matter whether I have flood insurance?

In order to maintain an inverse condemnation claim, a property owner does not need to have flood insurance – in fact, whether or not you have flood insurance doesn’t impact the strength of your inverse condemnation claim. As a practical matter, since virtually all flood insurance policies only cover up to $250,000 of damage to the dwelling and $100,000 to contents, many of the affected property owners will have uninsured damage. Accordingly, property owners with flood insurance should give serious thought to bringing an inverse condemnation action.

Property owners without flood insurance should seriously consider pursuing an inverse condemnation action, as it may be their best and only option to recover the money needed to repair and replace the damage to their homes, businesses, and personal property.

Does it matter if my property has previously flooded, or is in a floodplain?

Your property’s susceptibility to flooding due to “natural conditions” may impact your inverse condemnation claim. This is because the plaintiff in an inverse condemnation action has the burden to prove that the government’s actions caused the submersion. However, simply being located in a floodplain does not automatically bar your inverse condemnation claim.

In 2012, the United States Supreme Court decided an inverse condemnation case related to temporary government-induced flooding. In that case, the property was in a floodplain, and had experienced flooding in the past. Importantly, however, the prior flooding was not comparable to the government-induced flooding giving rise to the inverse condemnation claim. The Court ultimately decided that temporary, government-induced flooding can trigger a compensable inverse condemnation claim.

How do I find out if my property is in a floodplain?

We recommend that Harris County residents visit http://www.harriscountyfemt.org , and that Fort Bend County residents visit FBC Floodplain Mapping Tool. Simply enter your property’s address in the Address Search bar, and you will receive an immediate response indicating whether your property is in the floodway, 100-year floodplain, or 500-year floodplain.

Unfortunately, the Corps’ inundation affected hundreds of homes and businesses that were not located in a floodplain, and had no history of prior flooding. Moreover, property owners were given almost no prior notice that their properties would be inundated, which made mitigating potential damage all but impossible.

What if I’d already flooded before the releases?

Plaintiffs that experienced “natural condition” flooding prior to the above-described storage and release of impounded stormwater can still seek Just Compensation under the 5th Amendment. This is because the government-induced inundation may have caused additional damage to several structures that had already taken on water, to say nothing of the duration of the government-induced submersion. Tragically, many of these homes may have to completely torn down, as they’ve been exposed to raw sewage and toxic chemicals. Additionally, it is our understanding that a large amount of property owners may have to elevate their homes to comply with the City of Houston’s updated permitting requirements.

Do I still have a claim if I sell my property?

The U.S. Supreme Court has previously explained that because “compensation is due at the time of taking, the owner at that time, not the owner at an earlier or later date, receives the payment.” In 2009, the Court of Federal Claims addressed this issue and held that, under applicable precedent, the individuals who owned the property at the time of the taking were entitled to just compensation even if they’d subsequently sold their property. If you decide to engage our law firm and sell your flooded property, we will assist you by providing you with specific language to include in the sales contract. There is no additional charge or additional attorneys’ fee for this service.

If you are in the process of selling your home, we strongly encourage you to contact an attorney regarding your inverse condemnation claim, as it will be important to preserve evidence of the damages incurred before the sale closes.

Will you handle these cases on a contingent fee basis?

The Williams Kherkher law firm is handling these inverse condemnation cases on a contingent fee basis. Our standard fee is 25% of any recovery obtained after a suit is filed. This means 25% is the maximum contingent fee we will charge. If there is no recovery, you owe us nothing.

We are aware that other law firms are charging as much as 40%, and also seeking recovery of litigation expenses out of the client’s share of the recovery. This is a fairly standard contingent fee arrangement; however, we didn’t feel it was appropriate for a disaster of this magnitude, especially since it involves people’s largest investment: their homes.

Additionally, we believe that applicable law entitles us to recover reasonable attorneys’ fees from the Government as part of any judgment or settlement. The recovery of reasonably attorneys’ fees would increase the gross recovery obtained, and the overall goal is to ensure that the client is made whole.

Have you handled cases like this before?

Yes, we have handled inverse condemnation and takings cases before. Armistead “Armi” Easterby, the Williams Kherkher partner overseeing these inverse condemnation cases, has been licensed in the U.S. Court of Federal Claims since January of 2000. Additionally, as discussed above, Mr. Easterby was recently appointed as Co-Lead Counsel.

How do I hire you to handle my inverse condemnation claim?

Please submit an inquiry, or call us. After you submit your contact information, you will receive a call from one of our attorneys to discuss your claim and to set up a free consultation. To be clear, we don’t accept all cases, only those cases that meet our internal criteria.

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