Corps’ Calculated Planning to Impound Floodwater on Private Property Sinks U.S. Government’s Defenses to Flood Damages from Harvey – Update from PPGMR Law

G. Alan Perkins, Esq.

On December 17, the Federal Circuit handed down a significant decision that finds the Government liable for damages to Tropical Storm Harvey flood victims in the Houston area. In Re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, Case 1:17-cv-09001-CFL (12/17/19 Fed. Claims) (“Addicks”). The Addicks decision finds liability only (damages were bifurcated) for 13 bellweather plaintiffs. Court of Federal Claims Senior Judge Charles Lettow, in the fact-intensive 46-page decision, found that the Corps of Engineers’ decades-long calculated planning was a primary factor in finding liability. “Here, the Corps knew from the outset that the land it purchased was inadequate to hold the amount of water that would be contained in the reservoirs should the embankment-design storm occur. It knew then that if such a storm transpired, the water produced would exceed government-owned land and flood private property.” Addicks, at 40. The Claims Court relied heavily on the U.S. Supreme Court’s unanimous decision in Arkansas Game & Fish Commission v. U.S., 568 U.S. 23, 133 S. Ct. 511 (2012) (PPGMR attorneys represented the Arkansas Game & Fish Commission from the Court of Federal Claims through the U.S. Supreme Court), noting the context of the cases was “strikingly similar.” Addicks, at 42.

In Addicks, the Court concluded that, although the severity of Harvey and the extraordinary rainfall in the watershed of the two flood control reservoirs at issue may have been subjectively unexpected, the Corps made a calculated decision to retain floodwaters in the reservoirs rather than risk more severe downstream flooding. And that result had been contemplated for decades if such an event ever occurred. The Corps’ decision led to extensive flooding of private property upstream of the flood control dams. Although the private property was within the planned flood storage capacity of the reservoirs, the Government had failed to obtain flowage easements on the properties. The Claims Court applied the six factors from Arkansas Game & Fish to determine the existence of a compensable taking: (1) time, (2) intent, (3) foreseeability, (4) character of the land, (5) reasonable investment-backed expectations, and (6) severity. Addicks, at 27. The Addicks Court concluded that the Government’s actions in managing the Addicks and Barker Dams during the storm caused the flooding of plaintiffs’ properties and constituted a taking of a flowage easement under the Fifth Amendment.

Regardless of one’s position about the cause of climate change, it is clear that extreme weather events have become more common. Flooding, in particular, has become more frequent and more severe. The potential liability of the government for the management of flood control projects will undoubtedly come into question more often in the future.