Judge determines date, scope of Corps' taking of private property upstream of Addicks, Barker reservoirs during Hurricane Harvey

(Designed by José Dennis/Community Impact Newspaper)
(Designed by José Dennis/Community Impact Newspaper)

(Designed by José Dennis/Community Impact Newspaper)

Another opinion and order have been issued in the lawsuit regarding the litigation about properties upstream of the Addicks and Barker reservoirs that flooded during Hurricane Harvey due to the Army Corps of Engineers Galveston District’s operations of the reservoirs.

After a hearing April 28, Senior Judge Charles Lettow of the U.S. Court of Federal Claims issued an opinion and order April 30 concluding that the Corps took the upstream private property to store stormwater on Aug. 30, 2017, not the 1940s when the reservoirs' construction completed, as argued by the government.

This date is important because it will help determine how much compensation property owners may be eligible for due to the taking of the property, according to the opinion and a press release from the team of lawyers representing the property owners. A trial on the damages is on schedule for a fall date, per the release.

“[The Aug. 30, 2017, date] means the value of the property will be measured from the time of Harvey, not decades before as the Government requested,” the release states.

The Department of Justice said in a February email that it declines comment because the lawsuit is in active litigation.

The April 30 opinion and order also limited the flowage easement to the elevation of the flood pool during Harvey, according to the release. This means that if the Harvey flood pool is ever exceeded due to how the Corps operates the reservoirs, a new lawsuit can be filed for additional compensation, the release states.

In this litigation, a permanent flowage easement refers to the land the Corps used to store inundated water from Hurricane Harvey on private property without compensation, and it refers to the government's right to use the property again, said Mary Conner, who is part of the team of lawyers representing the property owners, in an April email interview. The word "permanent" indicates the Corps will flood the private properties again if the entity does not make any changes to its operations.

The opinion also clarified that damages from the taking will include both real and personal property, the release pointed out.

"[T]he court notes that the taking also encompassed—as a consequential result of the flowage easement taken—plaintiffs’ personal property, fixtures, and improvements damaged or destroyed by the flood event that climaxed on August 30, 2017," the opinion states.

In December, Lettow issued an opinion and order concluding the Corps was liable for flooding the upstream property during Hurricane Harvey, but it did not specify when exactly when the Corps took the property to store impounded floodwaters.

“The court’s opinion addressing liability did not expressly identify the date when the taking of the flowage easement occurred, as it was unnecessary to do so to reach a determination on liability,” Lettow wrote in the April 28 opinion. “That date is significant, however, for assessing the measure of just compensation due.”

Receiving compensation—which could range from $1 billion-$5 billion divvied out among the thousands of property owners who join the class-action lawsuit—will not come immediately for property owners, the team representing the property owners said at the January town hall meeting. After Lettow issues an opinion and order about the damages, the government will likely appeal the judge’s decisions.

To receive compensation, however, property owners upstream of the reservoirs must join the lawsuit. They have until August 2023 to sign up. More information is available here.

Lawsuit timeline

  • Aug. 25, 2017: Hurricane Harvey makes landfall; U.S. Army Corps of Engineers closes Addicks and Barker reservoirs' gates

  • Aug. 28, 2017: Corps begins releasing impounded stormwater from the reservoirs

  • Sept. 5, 2017: first lawsuit of hundreds filed by property owners relating to Harvey and the reservoirs

  • November-December 2017: chief judge creates two dockets for upstream and downstream properties lawsuits

  • Spring 2018: 13 test cases selected for the upstream lawsuit

  • May 6, 2019: 10-day trial for upstream cases held in Houston, which included the judge visiting the reservoirs and test properties, to determine whether the Corps was liable

  • Sept. 13, 2019: court hears closing arguments on upstream case in Washington, D.C.

  • Dec. 17, 2019: judge issues opinion and order in favor of property owners, concluding the Corps was liable for taking private property

  • January 2020: preparation for the upstream damages trial begins to determine just compensation

  • Feb. 18, 2020: downstream lawsuit dismissed in its entirety

  • April 28, 2020: virtual hearing held to determine date of the taking and scope of the taking

  • April 30, 2020: judge issues opinion and order concluding the taking occurred Aug. 30, 2017, and the taking includes the Harvey flood pool

  • Fall 2020: trial on damages

By Jen Para
Jen joined Community Impact Newspaper in fall 2018 as the editor of the Katy edition. She covers education, transportation, local government, business and development in the Katy area.


Dozens of clinics throughout the county offer COVID-19 testing services. (William C. Wadsack/Community Impact Newspaper)
COVID-19 testing locations remain open in Montgomery County and more local news

Read the latest Houston-area business and community news.

Heading into Thanksgiving, Texas Medical Center continues to report uptick in hospitalizations

The total number of COVID-19 patients hospitalized at Texas Medical Center facilities has increased by more than 50% over two weeks.

The Harris County Justice Administration Department is working to release final reports and launch pilot programs in early 2021. (Courtesy Fotolia)
Harris County Justice Administration Department makes headway on countywide criminal justice studies

The department is working to release the final versions of several studies and launch pilot programs with local law enforcement groups in early 2021.

Texas Gov. Greg Abbott announced a COVID-19 vaccine distribution plan for the state Nov. 23 for a vaccine he said could be available as soon as December. (Courtesy Adobe Stock)
Texas Gov. Greg Abbott announces COVID-19 vaccine distribution plan

The vaccine could start being distributed "as early as next month," according to a Nov. 23 news release.

The latest Fort Bend County coronavirus updates from the week of Nov. 13-19. (Courtesy Adobe Stock)
Fort Bend County hospital leaders warn of increasing COVID-19 hospitalizations

Fort Bend County Health & Human Services reported 685 new cases of the coronavirus Nov. 13-19, a 135% increase in the number of new cases compared to the week prior.

Laura Colangelo
Q&A: Laura Colangelo discusses challenges facing private schools during pandemic

Colangelo said private schools have adapted to remote learning and other obstacles in 2020 despite less revenue and a 9% decline in enrollment statewide.

Shake Shack opened its new standalone location at The Woodlands Mall in November. (Courtesy Christine Han)
Shake Shack opens in The Woodlands Mall and more Houston-area updates

Read the latest business and community news from the Greater Houston area.

Katy-area business owners adapt to COVID-19

“I want to thank the community for supporting us and shopping local,” Ebrecht said. “It’s been really amazing. We were surprised that we didn’t fall that far behind last year’s sales, even through all of this.”

Buffalo Bayou report draws some local criticism

Concepts that appeared to be early frontrunners included a new reservoir and dam structure in the Cypress Creek watershed and 22 miles of deepening and widening Buffalo Bayou, both of which would alleviate strain on the Addicks and Barker reservoirs during heavy rainfall events.

The Skeeters will be the first-ever independent baseball league team to become an MLB team's Triple-A affiliate. (Courtesy Sugar Land Skeeters)
Sugar Land Skeeters selected as Triple-A affiliate for Houston Astros

In joining the Houston Astros organization, the Sugar Land Skeeters will be the first-ever independent baseball league team to become an MLB team's Triple-A affiliate.

Serasana Katy, located at 28818 Cinco Ranch Blvd., Ste. 140, Katy, is now open. (Courtesy of Serasana Katy)
Serasana Katy opens in Katy area

Serasana Katy, located at 28818 Cinco Ranch Blvd., Ste. 140, Katy, is now open.