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In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs

ELR Citation: 50 ELR 20002
Nos. 17-9001L, (Fed. Cl., 12/17/2019) (Lettow, J.)

The Court of Federal Claims held the U.S. government liable for the flooding of homes and businesses near two dams managed by the U.S. Army Corps of Engineers in Houston during Hurricane Harvey. Property owners argued that the government improperly used their land to retain floodwaters during the hurricane and thus caused a Fifth Amendment taking for which compensation was owed. The court found that the Corps made a "calculated decision" by designing and constructing the dams in such a way that neighboring private properties would be inundated during severe storms to protect downtown Houston from flooding, and that the flooding amounted to the government taking the owners' land. The government asserted the flooding was not a compensable taking because it was temporary and confined to a single flood event. But the court found that even if a single event of this nature was insufficient to rise to a taking, the frequency of large storms in the region before and since construction of the dams suggests that this was more than an isolated event and that a similarly large storm is likely to occur again. Further, there is no reason to expect that the government would operate the dams any differently in a future storm than it did during Harvey. The court therefore found the government liable for the flooding.