Tag Archive for: Addicks

Homebuyers Beware: Flood Risk is Shifting Target

Homebuyers beware. Flood risk is a shifting target.

This morning, I began reading more than 100 pages of legal briefs in the appeal of the upstream Addicks and Barker awards. I could not help but think how hundreds of millions of dollars in losses and untold heartbreak could have been averted with more due diligence on the part of all involved – buyers, developers and the Army Corps.

Background of Case

For those new to the area, Addicks and Barker are two reservoirs on Houston’s west side. The Army Corps built them back in the 1930s to protect downtown Houston and the ship channel. However, the Corps did not buy all the land inside the reservoirs that was subject to flooding. Later, developers started building on that land. And people bought the homes despite the risks.

During Harvey, hundreds of homes built inside the reservoirs flooded. Residents sued the Corps and won. But the Corps is now appealing the case.

In 2022, a judge ruled in favor of the residents and awarded them more than half a billion in damages. The damages included repair costs, replacement of belongings, and compensation for value lost in their property. But facing hundreds of millions of dollars in payouts, the government isn’t giving up easily. It appealed.

The case has taken more than six years to get to this point and it is far from over. No telling what the legal fees have cost both sides. Or whether plaintiffs will ever see a penny.

This should serve as a lesson to everyone buying a home and to their real estate agents, mortgage lenders, and surveyors.

Tools to Help You Avoid Becoming a Flood Victim

Although tools to identify flood risk may not have been commonly available and readily understandable when the plaintiffs bought homes inside the reservoirs, such tools do exist now.

Two of the easiest to use are the USGS National Map and FEMA’s National Flood Hazard Layer Viewer.

They both show the extent of potential flooding in this area, but each has different strengths. And they show slightly different results. That should raise some cautions if you think of risk as a black-or-white issue.

Use USGS National Map for Elevations, Slopes, Contours

USGS excels at mapping elevations, slopes and contours. This post explains how to use the National Map. Backgrounds include:

  • Satellite imagery
  • Street maps
  • Structures
  • Topographic maps
  • Relief maps
  • Streams
  • Hydro and more.

You can layer these maps and vary their transparency. But the real magic of the USGS National Map is in the measurement tool for elevation profiling. Below is an example.

After activating the elevation profile tool, I drew a line from a residential neighborhood inside the Barker Reservoir, across the dam, to an area outside the reservoir. I chose an area in the southwest corner of the reservoir that flooded during Harvey. It showed this.

Note elevation changes on right where line crosses the dam (gray bar). Homes above the gray are inside reservoir.

The red X shows the height of the dam (108 feet) in the elevation profile. The brown area in the elevation-profile box shows the elevation of the dam, homes, streets and drainage channels.

Homes are generally 6-8 feet BELOW the height of the dam. That should be a giant red flag for anyone considering buying a house inside the reservoir.

Next, zooming out, I turned on the hydro layer. The red circle below, indicated the approximate area and location of the map above.

Note how the flood pool of the reservoir extends beyond the entire neighborhood shown above.

FEMA National Flood Hazard Layer Viewer for Floodplain Information

FEMA actually uses the elevation information from the USGS national map. But FEMA superimposes floodplains to show flood risk in several zones.

Note difference in two maps above in their bottom left corners. FEMA shows some homes inside the reservoir that are outside of mapped flood zones. Aqua = 100-year and tan = 500-year floodplains.

The difference noted above raises an important point. FEMA’s maps are estimates of the probability of unknown future events based on the frequency of extremely rare past events. Those estimates may not have been in effect when the neighborhood in question was built around the time of Tropical Storm Allison in 2001. Maps based on Allison weren’t adopted until around 2007 and are still in effect today.

Harris County Flood Control and FEMA update flood maps periodically when new monster storms come along and surpass past rainfall probability estimates. For instance, FEMA is working on new flood maps based on Harvey, but has not yet released them.

So, if you’re thinking of betting your life savings on a home in a risky area, the best things to do are these:

  1. Ask yourself, “Can I afford to lose everything?” Many families in the reservoirs did.
  2. Consult an independent engineer without any financial incentive in the purchase, i.e., making the deal go though.
  3. Evaluate a variety of homes, not just one. And look closely at the safety margins.
  4. If a home is two feet above the 100-year floodplain, look for one that’s higher. Things change regularly, usually in one direction.
  5. Make “flood avoidance” more important than kitchen appliances in your purchase decision.

A Cautionary Tale Based on Personal Experience

Back in the early 1980s, I owned a house in Dallas near a creek that an engineer and the city certified were 2-feet above the 100-year floodplain. The home flooded within two years, due to rapid, insufficiently mitigated growth upstream.

Several years later, when I bought a house in Kingwood, I looked at ten homes and bought the one on the highest ground. More than 30 years later, all nine of the others flooded during Harvey even though they were all reportedly above the 100-year flood plain.

For a thorough description of why flood risk is a moving target, read this post – Why Do We Flood?

After two years of drought, it’s easy to become complacent about flood risk. Don’t. Ask anyone who has flooded. They will tell you. Your life can change overnight. So homebuyers beware.

Posted by Bob Rehak on 10/21/2023

2244 Days since Hurricane Harvey

Downstream Addicks Barker Case Moves Another Step Closer to Trial

On January 10, 2023, McGehee ☆ Chang, Landgraf, Feiler responded to the government’s most recent motion in the Addicks Barker Downstream “Takings” Case on behalf of the plaintiffs. Their response included a counter-motion against the government. Here is a copy of their motion. Each side will have a chance to file one more round of written arguments before trial.

Background: Government Denies Claims

To recap, in November 2022, the government again moved for a summary judgment in the case. The government contended that the Addicks and Barker dams:

  • Historically prevented far more damage ($16.5 billion through 2016) than the release of water during Harvey caused
  • Reduced plaintiff’s level of flooding by up to 7-8 feet
  • Did not “cause” – in a legal sense – the plaintiffs’ flooding

Further, the government contended that plaintiffs’ claims are based on a single, extraordinary, catastrophic event and any action undertaken by the Corps during the event does not constitute a “taking” under the Fifth Amendment.

The government compared peak flows at several points along Buffalo Bayou during Harvey and contended that the plaintiffs properties would have flooded regardless of the release. It claims that the releases constituted less than 10% of total flow. The government also claimed that had it never built the dams, downstream flooding would have been far worse.

Plaintiffs Allege They Were Not Informed of Risk

The plaintiff’s response (which included 3800+ pages of arguments, depositions and appendices) focuses on how the government modified the dams and its procedures over time.

It adjusted discharge rates to maintain a “non-damaging channel capacity over time.” The rates went from the original design concept of 15,700 cubic feet per second down to about 2,000 cubic feet per second in a series of incremental steps over decades. The changes were designed to accommodate residential construction along Buffalo Bayou.

The plaintiffs allege that the Corps publicly reassured property owners that it would not open the dams to a point where it would cause downstream flooding. Plaintiffs further allege that over the years, people grew to rely on these assurances and none of the test properties experienced any flooding.

Nor did any of them know that the Government might deliberately release water from the Reservoirs in sufficient quantities to flood their properties.

One commercial property reported just a few inches of flooding prior to the releases, escalating to six feet afterward. Plaintiffs argue that they would have suffered no or substantially less flooding if the government had not released water, a decision motivated in part to protect upstream properties.

Crux of Plaintiff’s Arguments

Plaintiffs claim the government:

  • Repeatedly promised downstream property owners that it would keep the floodgates closed
  • Could have kept the floodgates closed; the Reservoirs were never in danger of failing
  • Elected to open the floodgates even though it did not have to do so to avoid any imminent failure
  • Knew that opening the floodgates would flood the downstream property owners
  • Cannot meet the high bar required to assert releases were necessary.
  • Could have bought-out the properties it flooded but chose not to because of the expense.

Plaintiffs conclude by saying that:

  • The Government’s summary judgment motion should be denied
  • The Court should enter a partial summary judgment for the Plaintiffs on the liability and causation elements of their claims
  • All other issues, including damages, should be set for a prompt trial.

To review all the appendices submitted by plaintiffs, click here. Size caution: 330 megabytes.

A Shakespearean Tragedy

Although it might be buried somewhere in thousands of pages of filings, neither side in this case appears to directly address which properties would have flooded regardless of the release and which flooded because of the release.

The government seems to contend it is responsible for none of the flooding because it was unavoidable. And the plaintiffs contend the government is responsible for all of it.

This is like watching a Shakespearean tragedy unfold. Not even at issue here are the policies that allowed lucrative development in dangerous places, the lack of risk disclosure, and the erosion of safety margins.

Next up: The government can reply to plaintiff’s motion by February 9, 2023. Plaintiffs will then have a chance to reply to the reply by March 11. Then both sides will gear up for a hearing before the Judge. 

Posted by Bob Rehak on 1/19/2023

1969 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

Government Again Moves for Summary Judgment In Addicks-Barker Downstream Cases

On November 21, 2022, the U.S. Government filed a 70-page motion for a summary judgment in the Addicks-Barker Downstream Cases. In 2020, Judge Loren A. Smith dismissed the downstream cases, ruling that the plaintiffs had no right to sue the government for “taking” their property in what he called a 2,000-year storm. However, in June 2022, a federal appeals court reversed Judge Loren’s decision, re-opening the case. The appeals court ruled on a number of procedural issues and remanded the case back to Loren’s court for further consideration.

Both appellants and the government had urged the appeals court to order a summary judgment. But the appeals court declined. It noted that “due to the fact-intensive nature of takings cases, summary judgment should not be granted precipitously.”

Now three years later, the parties are again asking for summary judgement. The government has already filed its motion and the plaintiffs have until January 10, 2023, to respond with their own cross-motion.

Government Claims

In summary, the government contends that the Addicks and Barker dams:

  • Historically prevented far more damage ($16.5 billion through 2016) than the release of water during Harvey caused
  • Reduced plaintiff’s level of flooding by up to 7-8 feet
  • Did not “cause” – in a legal sense – the plaintiffs’ flooding

Further, the government contends that plaintiffs’ claims are based on a single, extraordinary, catastrophic event and any action undertaken by the Corps during the event does not constitute a “taking” under the Fifth Amendment.

Dams Modified in Response to Downstream Development

The government brief contains an illuminating historical discussion (starting on Page 23) of how the Army Corps modified the release capacity of the dams over the years in response to downstream development. Both dams release water through concrete box culverts, some of which have been gated to help the Corps reduce discharges.

The original design from the 1930s included a downstream channel with a capacity of approximately 18,000 cubic feet per second (CFS), and 4 ungated and 1 gated outlets on each dam. They permitted a combined, uncontrolled discharge of floodwater into Buffalo Bayou of approximately 15,700 cfs.

In 1948, the Corps constructed gates on two additional conduits on each dam so that three of the five conduits were gated. This design reduced the combined uncontrolled discharge into Buffalo Bayou to approximately 7,900 cfs, which was considered at that time to be the capacity of that channel.

“However, increasing urban development along Buffalo Bayou in the 1940s and 1950s created a potential flood threat from uncontrolled releases at that level,” says the motion.

The Corps then added gates to additional conduits in the early 1960s to provide more protection to developing downstream areas. With all conduits gated, “[t]he total of all releases, plus local runoff downstream of the dams, would start at 4,000 cfs and be gradually increased to 6,000 cfs except under emergency conditions.”

Later, the motion states, “Continued residential development along Buffalo Bayou downstream of the reservoirs resulted in channel encroachment and by late 1970, water flows in excess of 3,000 cfs in the unimproved channel below the dams would begin to threaten the first floor elevations of some residences, and release rates of 2,500 to 2,800 cfs would produce nuisance type flooding of flower beds, trees and lawns in some areas along Buffalo Bayou and its tributaries.”

Causation Argument

Plaintiffs claimed that the opening of the dams’ gates during Harvey caused their flooding. But the government argues that the plaintiffs must demonstrate what would have happened if the government had not acted at all. In other words, the government argues that “causation” must be “based on the entirety of government actions.” See Page 26. That includes construction of the dams! And without them, the government says on Page 42, “properties along Buffalo Bayou would have experienced much greater flooding.”

“Plaintiffs have not alleged—let alone identified any evidence to prove—that their properties experienced more flooding than they would have experienced if the Corps had never constructed the Project, their claims fail,” the government argues.

Doctrine of Relative Benefits

The government also invokes a legal principle called the “relative benefits doctrine.” Under the relative benefits doctrine, “[e]ven if a causal relationship exists between the Government’s action and plaintiff’s damage . . . no liability attaches if the Government’s conduct bestowed more benefit than detriment on plaintiff’s property.”

The motion then alleges that the benefits to downstream properties far outweigh the Harvey-related damages. A 2016 study the government quotes alleges the dams reduced/avoided damages to downstream properties by $16.5 billion. That total is updated annually and based on a with/without the dams comparison.

Comparison of Peak Inflows/Outflows

The government motion cites the following statistics of the two reservoirs during Harvey:

  • Addicks peak inflow: 70,000 cfs
  • Addicks peak release: 6,500 cfs or 9.3% of the peak inflow.
  • Barker peak inflow: 77,000 cfs,
  • Barker peak outflow: 4,821 cfs or 6.3% of the peak inflow.

Peak flow rates downstream along Buffalo Bayou ranged from 13,800 cfs to 36,400 cfs. The government alleges that at those levels, plaintiffs properties would flooded regardless of discharge from the dams. The government also alleges that without the dams, flooding in Piney Point would have been 7 to 8 feet higher.

The Corps calculated after Harvey that the dams prevented 30,000 structures from flooding.

Government Motion for Summary Judgement, Page 57

In this section of the motion, government lawyers point out that plaintiffs’ properties would have flooded in previous floods such as Tax Day and Memorial Day had it not been for the dams.

What Constitutes a Taking?

In conclusion, the government argues that the flooding during Harvey did not constitute a “taking” under the Fifth Amendment.

  1. It was not intended.
  2. It resulted from an extreme hurricane with unprecedented rainfall.
  3. The government’s role in any flooding of downstream properties was secondary to the severe rainfall.
  4. The dams were designed and built decades before the plaintiffs’ properties.
  5. Releases during Harvey were designed to protect the integrity of the dam.
  6. Flooding of plaintiffs’ property is not frequent enough to rise to the level of a taking.
  7. The failure of government to take certain actions alleged by plaintiffs would constitute a tort a most, not a taking.

A tort is a failure to take action that results in damage to someone.

To see the exact text of the full 70-page motion, click here.

I will let you know how the plaintiffs’ lawyers respond later this month.

Posted by Bob Rehak on 1/1/2023

1951 Days since Hurricane Harvey

Addicks-Barker Upstream Trial Case Entering Final Phase

On the fifth Anniversary of Harvey, the law firm McGehee ☆ Chang, Landgraf, Feiler issued updates on both its upstream and downstream cases in the Addicks-Barker lawsuits against the Army Corps of Engineers.

Final Arguments Scheduled in Upstream Case

The upstream Addicks-Barker lawsuit is finally drawing to a close. Earlier, Judge Charles F. Lettow ruled that the Army Corps was liable for damages. The question being decided now is “How much will residents get?” On that issue…

  • Judge Lettow heard the plaintiffs’ opening post-trial brief on August 1, 2022.
  • Defendants will present their response on September 9.
  • Plaintiffs will get a chance to reply to that on September 23, 2022.
  • The judge will hear final arguments on September 29, 2022, at 2:30 p.m.

“Once the post-trial argument concludes, we expect Judge Lettow to render a decision – which outlines the amount of damages that the homeowners are entitled to,” said the law firm in a press release.  “We hope to receive the ruling by the end of the year.”

Flooded Homes in Addicks Reservoir during Harvey

Downstream Case Still Alive but No Definite Schedule

The McGehee firm won an appeal in its downstream Addicks-Barker lawsuit last June. The ruling on the appeal revived the case, which a lower court had dismissed in 2020.

The lower court found that “Downstream property owners did not have a cognizable [clearly identifiable] property interest.” But in June, a Federal Court of Appeals’ reversed and remanded the lower court’s decision. That means the case will go back to the lower court for further proceedings that follow instructions given by the appeals court.

The lower court will now have to determine whether a “taking” of the Downstream properties occurred, and whether the government’s other defense (i.e., necessity) will apply.

McGehee ☆ Chang, Landgraf, Feiler

“The fight will continue,” said the McGehee team.

For More Information

I’ve covered the upstream and downstream cases since 2020. For more information, see:

The outcome of these cases could affect outcomes in similar “takings” cases in the San Jacinto watershed.

Beyond the lawsuits, flood-mitigation help for residents near the reservoirs remains years away. It could depend on flood tunnels which are still being studied.

Posted by Bob Rehak on 8/29/22

1826 Days since Hurricane Harvey

HCFCD Asks for Army Corps Help with Tunnels, Halls Bayou, Addicks/Barker

In June 2022, Harris County Flood Control District (HCFCD) pitched the Army Corps (actually the Assistant Secretary of the Army for Civil Works, referred to as ASA(CW)) for help with three large projects. They included Flood Tunnels; Halls Bayou; and the Addicks and Barker Reservoirs. This leave-behind summarizes the presentation.

Setting the Stage

The presentation begins with a history of the relationship between the Army Corps and HCFCD dating back to 1937. It references past joint projects such as work on the Addicks and Barker Reservoirs; and Brays, White Oak, Little Vince, Cypress, Greens and Sims Bayous.

It also references projects not yet completed such as work on White Oak and Hunting Bayous, and Clear Creek. Finally, it looks forward to future collaboration on Buffalo Bayou, Halls Bayou and a County Wide-Study that “lifts up and empowers our diverse communities to thrive.”

The intro contains graphics that summarize:

  • Damage during Hurricane Harvey
  • Atlas-14 rainfall vs previous estimates
  • Current and Active Army Corps projects
  • A county-wide map of “Recently flooded” (from Harvey) structures overlaid on a social-vulnerability map

The leave-behind then makes three “asks” corresponding with each of the three major projects.

Buffalo Bayou and Tributaries Resiliency Study

The first ask is for help “finding the right solution for Addicks and Barker Reservoirs.” It talks about managing residual risk and liability. Specifically, it asks for support through the completion of the Corps’ Buffalo Bayou and Tributaries Resiliency Study.

It alludes to policies and processes impeding needed progress. Then it says, we must blaze a trail for a new equitable flood risk management paradigm.

An engineer familiar with Buffalo Bayou told me that the study had been cancelled at one time because of a poor Benefit/Cost Ratio. It wasn’t because, as you often hear, that home values were low. It was because land acquisition costs were so high. Possible workarounds: several proposed “innovations” including:

  • Flood tunnels
  • A comprehensive benefits framework that includes more than a strict benefit/cost ratio.
  • “Emphasis on community resiliency, environmental justice, and climate change adaptation.”

The last update of this study on the Corps’ website is from late 2020. The final report has not yet been released. This post from 2020 summarizes the findings of the interim report.

County-Wide Section 203 Study

Section 203 of the Water Resources Development Act was amended to let non-Federal sponsors conduct feasibility studies that serve as the basis for authorization of new water resources projects, such as flood tunnels. But acceptance of the results is at the discretion of the ASA (CW). One objective of the presentation: to get the ASA(CW) to partner Harris County on a County-wide flood risk study.

The county pitched the partnership as:

  • A potential “pilot study for Justice40”
  • Climate change preparedness
  • Empowering vulnerable communities to withstand and recover from flood events.

Justice40 is a Biden initiative, announced within his first few weeks in office. It uses every lever at his disposal “to advance environmental justice and spur economic opportunity for disadvantaged communities. The “40” refers to Biden’s promise to deliver at least 40 percent of the overall benefits from Federal investments in climate and clean energy to disadvantaged communities. One of the priorities: mitigation initiatives that reduce or eliminate the risk of repetitive flooding.

Halls Bayou Section 118 Study

According to the presentation, the Federal government had a project to study flood-risk management on Halls Bayou from 1990 to 2016 when it was “de-authorized.” The county wants to restart it. Section 118 refers to “Pilot programs on the formulation of Corps of Engineers’ projects in … economically disadvantaged communities.”

Harris County wants the Corps to include Halls on its list of ten nationwide pilot studies for such communities. HCFCD points out that Halls has the highest percentage of Low-to-Moderate Income residents of any watershed in the county (71%). Halls has a poverty rate of 28% and a social vulnerability index of 0.85 out of 1.00. Halls also has frequent, severe, repetitive flooding.

At one time, HCFCD cancelled Halls’ Bayou studies because they all came back with Benefit/Cost Ratios below 1.0. That means costs exceeded benefits. HCFCD hopes to restart those in 2022. Section 118 gives the ASA (CW) a way to apply other criteria that compensate for a low BCR in disadvantaged areas.

Posted by Bob Rehak on 7/7/22

1773 Days since Hurricane Harvey

Upstream Addicks-Barker Trial Concludes, But No Ruling Yet on Damages

The damages phase of the Upstream Addicks-Barker class-action lawsuit over Hurricane Harvey flooding concluded Friday, 6/11/2022. Earlier, Judge Charles F. Lettow ruled that the Army Corps was liable for damages. The question being decided now is “How much will they get?” We don’t yet have that answer, but should before the end of the year.

Flooded homes inside Addicks Reservoir during Harvey but still outside even today’s 100-year floodplain.

Basis for Claims

After Hurricane Harvey, people and businesses both upstream and downstream of the Addicks and Barker Reservoirs on Houston’s west side sued the Army Corps. Plaintiffs in both cases alleged that the Army Corps’ operation of the dams flooded their homes and constituted a taking of their property without compensation. The Fifth Amendment of the U.S. Constitution prohibits that.

“No person shall be … deprived of … property, without due process of law; nor shall private property be taken for public use, without just compensation.”

From Fifth Amendment of U.S. Constitution

Difference Between Upstream, Downstream Cases

However, the Upstream and Downstream cases also have important differences. Upstream, the Corps did not own all the land inside the U-shaped reservoirs. Worse, the Corps permitted developers to build homes and businesses inside the reservoirs on land that remained in private hands. The Corps did not anticipate it all flooding based on storms they had studied going back to the 1890s. Yet the Corps still built the walls taller and longer than it needed to hold anticipated floods.

When Harvey came along, the water in the reservoir backed up onto that private property and flooded hundreds of homes.

Lawyers for the flooded property owners asserted that the federal government cannot use private property to store federal floodwaters without providing compensation. The judge agreed.

Second of Two Phases Nearing Completion

In the first phase of the upstream case, the court found the Corps liable. In the second phase, the court considered damages, i.e., how much compensation property owners should receive.

Although the trial portion of the damage phase just concluded, the case is not yet over. McGhee, Chang, Landgraf & Feiler, one of the law firms representing plaintiffs in the class-action suit, said they must still submit post-trial legal briefings. Then they will make final closing arguments in Washington D.C. in a few months. “We expect a decision to be rendered by the Court thereafter – probably sometime in late fall/winter,” said a press release by the firm.

Exponential Growth, Larger Storms, But No Mitigation

After reading the 46-page decision, I gained a better grasp of the history of the dams and the nature of the claims.

The Corps built the dams much higher than they needed to hold a 100-year flood based on what they knew at the time.

But the Corps did not purchase all land inside the reservoirs. They left private property outside the area expected to flood. At the time the dams were constructed, that land was used for ranching and rice farming.

If the land flooded, reasoned the Corps, not much damage would result. But then came Houston’s exponential growth in the 1950s. Those ranchers and rice farmers sold their land to developers. And developers started to build inside the reservoir.

Then the Corps realized that the storms on which it based the reservoirs’ designs (including a storm from the 1890s) were smaller than storms hitting the Houston area in the modern era. But by then, it was too late.

When the Corps realized future floods would likely invade homes, it launched an awareness program and held some public meetings. But the judge felt that information didn’t filter down to most homebuyers.

Also, the Corps took no concrete steps to reduce flood risk when it realized the severity of the problem. Worse, the Corps continued to issue permits and authorizations for more developments.

To sum up 46 pages in a sentence, “The Corps knew it had a problem and did nothing to fix it.” (That’s my takeaway, not the judge’s language.) The Corps remained focused on its primary objective – preventing downstream flooding.

Downstream Focus Looms Large in Upstream Decision

Said Judge Lettow, “Equipped with the knowledge that storms of the design-storm magnitude were probable, the Corps did not stray from its primary objective to prevent downstream flooding (indeed, it probably could not), even when it knew that could well mean impounding water on private property.”

Lettow cites a 2012 Water Control Manual which the Corps followed during Harvey. It instructs the Corps to operate the dams in a manner consistent with their original purpose: to protect downstream property by impounding water in upstream reservoirs. It states “…operate the reservoirs in a manner that will utilize to the maximum extent possible [Emphasis added] the available storage to prevent the occurrence of damaging stages on Buffalo Bayou.”

Knew Larger Floods Probable

According to the judge, the Corps continued to follow that policy even though it understood that rainfall events – larger than ones they designed the dams around – were “probable, rather than merely possible.”

Lettow also found it “undisputed that plaintiffs did not know their properties were located within the reservoirs and subject to attendant government-induced flooding.”

Government Planned for Years to Impound Floodwater on Private Property

Said one hydrologist who reviewed a detailed history of the Corps’ decision making, “The Corps of Engineers did NOT buy the entire area they knew would be inundated if Addicks and Barker reservoirs were at peak storage capacity.”

Judge Lettow said, “The government had made a calculated decision to allow for flooding these lands years before Harvey, when it designed, modified, and maintained the dams in such a way that would flood private properties during severe storms. Defendant cannot now claim that this harm was unavoidable when it planned for years to impound floodwaters onto plaintiffs’ properties.”

The Corps made the best decisions it could with the information AVAILABLE at the time.  But as we all know, things change! And that’s what worries me most about this case.

Right now, developers are building projects all around the region based on flood maps that will soon be replaced.

To read the original complaint by one of the law firms (Irvine $ Conner), click here.

For the complete text of the liability ruling, click here.

Posted by Bob Rehak on 6/11/2022

1747 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.



Appeals Court Revives Addicks-Barker Downstream Takings Cases

After Hurricane Harvey, people downstream of the Addicks and Barkers Reservoirs on the west side sued the Army Corps for “taking” their property. On February 19, 2020, Judge Loren A. Smith dismissed the takings cases. According to the Houston Chronicle, he said that property owners had no right to sue the government for inundating their land in what he called a “2000-year storm.”

However, today a Federal Appeals Court reversed Judge Smith’s dismissal of the takings cases. A lawyer following the issue described today’s ruling as “a victory for the downstream homeowners. This revives their claims – at least for now.” The appeals court ruled that the lower court incorrectly denied appellants takings claims when it ruled that “Hurricane Harvey was an Act of God.”

This ruling may affect similar cases in the Lake Houston area against the SJRA, also based on takings claims. The Fifth Amendment forbids the government from taking private property “for public use, without just compensation.”

The Lake Houston Area cases are in discovery and working toward a trial date, according to Kimberley Spurlock, an attorney for many of the plaintiffs.

Addicks reservoir
File photo. Looking upstream (NW) at Addicks Reservoir on May 20, 2021.

Summary of Appeal

Hundreds of individuals and companies that owned property downstream from the Addicks and Barker Dams alleged that the Army Corps of Engineers flooded their properties when it opened the dams’ floodgates during Hurricane Harvey.

The U.S. Court of Federal Claims (the lower court) held that plaintiffs did not have “a cognizable property interest in perfect flood control.” Thus, they could not claim “takings” against the United States. The appeals court disagreed. It sent the case back to the lower court for further proceedings.

Today’s ruling describes the history of the dams, the operating procedures for the gates, and analyzes the claims and precedents cited.

Lower Court Erred on “Property Interest,” Governmental Immunity

Basically, the lower court concluded that, “…because there was no cognizable property interest under either state or federal law, Appellants had failed to state a claim upon which relief could be granted.”

As you would expect, much of the appeal discusses whether a property interest does, in fact, exist.

The appellate decision also discusses whether the Army Corps had governmental immunity from takings claims that stem from Government attempts at flood control. The appeals court ruled that the government does NOT enjoy such immunity.

The appellate judges then turned their attention to property interests. They found that the precedents cited by the trial court were either not on point or stretched their points.

In short, the appeals court ruled that the “Court of Federal Claims erred in concluding that Appellants failed to assert a cognizable property interest.”

Summary Judgment Denied, Case Remanded

Both appellants and the government urged the appeals court to order a summary judgment in their favor. The appeals court declined. It noted that “due to the fact-intensive nature of takings cases, summary judgment should not be granted precipitously.” Thus, they remanded the cases back to the lower court. “Remand” in this context means “return a case for reconsideration.”

The appeals court judges asked the lower court to rule on three specific things. Whether:

  • Appellants have shown that a temporary taking occurred under the test applicable to flooding cases.
  • Appellants established causation considering the impact of government actions.
  • The Government can invoke the “necessity doctrine” as a defense.

The last point refers to a Supreme Court ruling. It recognizes that a taking claim may be non-compensable if there is “the destruction of ‘real and personal property, in cases of actual necessity…” Example: to prevent the spread of a fire.

For those reasons, the appeals court reversed the original decision of the Court of Federal Claims. It remanded the case back to the original court for further proceedings “consistent with this opinion.”

For the full text of the appeal, click here.

Posted by Bob Rehak on 6/3/2022

1739 Days since Hurricane Harvey

Coastal Prairie Conservancy Plan Shows How Preservation Can Help Reduce Flooding

The Katy Prairie Conservancy (now the Coastal Prairie Conservancy) has preserved prairies for more than 25 years to slow down and reduce floodwaters.

Tall-grass prairies and wetlands soak up, store and slow runoff from heavy rains, all of which decrease flooding for residents downstream.

The three main dimensions of natural flood reduction.

But how does that work in practice in specific locations? How MUCH do nature-based initiatives reduce flooding? And how can they complement traditional engineered solutions?

Multifaceted Plan Could Hold Back Harvey’s Excess Floodwater

Working with the SSPEED Center at Rice University, the Conservancy produced this brochure. It outlines a plan to expand currently protected lands to 50,000 acres and restore 21,000 of those.

Source: Katy Prairie Conservancy and Rice University SSPEED Center

The plan would absorb, slow, and store water in the Upper Cypress Creek Watershed. It also recommends detaining water near Cypress Creek by creating shallow detention on private lands with the help of willing landowners.

Likewise, by constructing retention and detention ponds in the Upper Addicks Watershed, even more floodwater could be stored and slowed down. The plan also includes the creation of retention corridors along Bear and South Mayde creeks. The retention corridors would serve as a buffer for floodwaters that threaten communities along the creeks. These projects will store up to 110,000 acre-feet of floodwater.

That’s the equivalent of a foot of rain falling over 172 square miles! And that’s 10% of Harris County!

Expand Addicks Reservoir Storage through Excavation

Addicks and Barker Reservoirs are valuable assets that need to be restored and enhanced. Storing additional floodwaters in Addicks Reservoir can keep homes upstream safe and prevent extreme releases that destroy downstream properties, according to the Conservancy and SSPEED.

Addicks Reservoir on May 20, 2021. Looking NW.

Put all these solutions together and the results look like the bar graph above.

The recommendations could easily hold back more water than Addicks had to release during Harvey.

Benefits Extend to Multiple Watersheds

During Harvey, so much water accumulated in the Cypress Creek watershed that it overflowed into the Addicks watershed. So, these recommendations could help reduce flood risk in superstorms along multiple streams, including Buffalo Bayou and Cypress Creek.

Plan includes excavation of additional capacity within Addicks with a goal of enhancing natural environment.

Other Interesting Statistics

The brochure also cites interesting statistics from other groups that touch on the plan. For instance, the Natural Resources Defense Council estimates that every 1% increase in soil organic matter results in the soil holding an additional 20,000 gallons of water per acre.

No One Solution

After studying flood reduction for almost five years now, I’ve concluded there is no silver bullet. No one solution will work for all situations. But every little bit helps. Multifaceted recommendations like these can ultimately reduce costs and increase effectiveness by harnessing the power of nature.

Natural solutions also provide numerous other benefits such as recreation and wildlife habitat.

Posted by Bob Rehak on 5/16/2022

1721 Days since Hurricane Harvey

Bayou City Initiative Presents “Houston Flooding: A Vision for 2020 and Beyond

Mark your calendar. On February 19, 2020, the Bayou City Initiative will hold its first meeting of 2020. The program is titled “Houston Flooding: A Vision for 2020 and Beyond.”

Bayou City Initiative Logo
Bayou City Initiative Logo

Featured Speaker Charles Irvine

The featured speaker will be Charles Irvine, Court-appointed Co-Lead Counsel of the Addicks/Barker “Upstream” flood case. He will discuss the historic win of the lawsuit led by homeowners who unknowingly bought homes in the flood pool of Addicks and Barkers reservoirs, and then flooded during Harvey.

Attendees will also hear from Bayou City Initiative’s Founder, Jim Blackburn, as he presents his State of the City address, “Two and a Half Years After Harvey.” Blackburn will present an overview  of what has been accomplished since Harvey in 2017 and what actions remain to reduce the threat of flooding in Houston and Harris County.

PLEASE NOTE: If you have attended previous meetings, there is a new location: The Evelyn Rubenstein Jewish Community Center of Houston. 


Houston Flooding: A Vision for 2020 and Beyond 

DATE: February 19, 2020,12:00 – 2:00pm – LUNCH PROVIDED

LOCATION – NEW: Evelyn Rubenstein Jewish Community Center of Houston, 5601 Braeswood Blvd, 77096


Posted by Bob Rehak on 1/29/2020

883 Days since Hurricane Harvey