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Hurricane Harvey / Inverse Condemnation

What is an Inverse Condemnation Claim?

Did the Army Corps of Engineers know that the decision to release stormwater would flood homes downstream of Addicks and Barker?

What does “Just Compensation” include?

Aren’t there already class actions that cover me?

Does it matter whether I have flood insurance?

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

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

How long do these types of cases take?

Will you handle these cases on a contingent fee basis?





Q: What is an Inverse Condemnation Claim?

On August 28th – 30th, the Army Corps of Engineers (the “Corps”) authorized releases from the Addicks and Barker reservoirs, which eventually reached 16,000 cubic feet per second (“CFS”). The Corps did this knowing that releases greater than 4,100 CFS would flood a large percentage of the structures downstream of the reservoirs. While these releases 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.

If you own residential or business property downstream of the Addicks and Barker reservoirs that flooded after August 28, 2017, you may have an inverse condemnation claim for Just Compensation under the Fifth Amendment to the United States Constitution. Stated simply, government-induced flooding can constitute a taking of property for which Just Compensation is owed.

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

The United States Supreme Court has held that claimants 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. In basic terms, a court will consider whether the injury was caused by authorized Government action, whether the injury was the foreseeable result of that action, and whether the injury substantially interfered with the property owner’s reasonable expectations as to the use of the land.


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Q: Did the Army Corps of Engineers know that the decision to release stormwater would flood homes downstream of Addicks and Barker?

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 decision to open the Addicks and Barker floodgates would result in flooding of downstream homes and businesses.

Both Addicks and Barker Dams were built in the 1940s to provide flood protection to the Houston areas downstream from these dams. In the 1960s, the Corps determined that Addicks and Barker should not release more than 2,000 cubic feet per second (“cfs”) to avoid downstream flooding.

In 2010, the Corps reclassified both Addicks and Barker Dams as Dam Safety Action Classification (“DSAC”) level 1 – “Urgent and Compelling.” This is the most dangerous classification for a Corps dam, and means “the dam is almost certain to fail under normal operations” without intervention.” The $75 million Addicks and Barker Dam Safety Construction Project, which began in 2016, were intended to address this “urgent and compelling” situation.

Due to its concern of a catastrophic dam failure, in mid-2010 the Corps also created and implemented an interim operating procedure, which dramatically changed the normal operations that have been occurring at these dams for over 40 years. The Corps’ internal documents prove that it assessed the potential flood damage associated with higher release rates before implementing the interim operating procedure. Significantly, the interim operating procedure clearly indicates that one of the regulating objectives was to minimize flood damages to downstream structures.

Using its own elevation surveys, the Corps determined that the lower level of homes in the vicinity of the West Beltway Bridge (approximately 6.5 miles downstream of the reservoirs) experience flooding at discharges in Buffalo Bayou of 4,100 cfs. At flows greater than 4,100 cfs, the Corps concluded that “a large percentage” of structures between the bridges over Buffalo Bayou at North Wilcrest Drive and Chimney Rock would incur flood damage. Despite its knowledge that release rates over 2,500 cfs cause downstream flooding, one of the interim operating procedure’s most significant changes was radically increasing the dams’ maximum allowable release rates. Indeed, the interim operating procedure states that:

The allowed combined flow limit (including local runoff) at the downstream regulating gauge [Piney Point] is raised from 2,000 cfs to 4,000 cfs. Discharges greater than 4,000 cfs require authorization by the Division Engineer.

The following is a brief chronology of the events that culminated in the flooding of hundreds of homes and businesses downstream of the two dams:

  • On August 25th, the Corps issued a press release indicating that the Addicks and Barker reservoirs were empty, and were “functioning under normal conditions.”
  • On August 27th, the Corps issued a press release indicating its officials have determined that they will likely have to release intermittent amounts of water from both Addicks and Barker reservoirs to reduce the risk to the Houston metropolitan area. However, there was no mention of potential downstream flooding at this time.
  • On August 28th, the Corps issued a press release indicating that it was starting water releases immediately from Addicks and Barker dams because of rising water levels in the reservoirs. The Corps said it would start releasing around a total of 1,600 cfs, and would increase that to 8,000 cfs. “If we don’t begin releasing now, the volume of uncontrolled water around the dams will be higher and have a greater impact on the surrounding communities,” said Col. Lars Zetterstrom. “It’s going to be better to release the water through the gates directly into Buffalo Bayou as opposed to letting it go around the end and through additional neighborhoods and ultimately into the bayou,” Zetterstrom said.
  • On August 29th, after reaching pool elevation over 108 feet above sea level, the Addicks Reservoir began to overspill at the armored spillway at the northeast edge of the dam near Tanner Rd. Later that same day, the Corps made the decision to raise the release rates to 16,000 cfs – nearly four (4) times the level associated with downstream flooding. As stated in an August 29th press release, “these additional releases have added to the out-of-banks flooding in neighborhoods along Buffalo Bayou.”

While the decision to make use of downstream property to expedite reservoir drainage arguably served the public’s interest, it was clearly foreseeable to the Corps that these releases would also cause major flooding and substantial damage to downstream 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.


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Q: What does “Just Compensation” include?

The Fifth 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.”

As recognized by the United States Court of Appeals for the Federal Circuit, Just Compensation includes compensation for clearing and restoring the property, for the loss of improvements, and for the costs associated with placing the property in its pre-taking condition. Under “temporary taking” circumstances, such as the flooding associated with the Addicks and Barker releases, we believe the Government should pay Just Compensation for the “direct, natural, or probable results” resulting from its decision.

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. As such, not all losses suffered by the claimant as a result of the taking are compensable, and the appropriate measure of damages depends largely upon the particular circumstances in each case.


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Q: Aren’t there already class actions that cover me?

Several class action lawsuits relating to the Addicks and Barker releases have been filed by various attorneys. Some have been filed in the state district courts of Texas, and one has been filed in the United States Court of Federal Claims. None have been certified as class actions, and it is unlikely that such a certification will occur anytime in the near future (if ever). As such, other than the named class representatives, none of these class actions currently cover anyone.

To be clear, we are not filing a class action lawsuit related to the Addicks and Barker releases. Instead, we are filing individual cases for each impacted client in the United States Court of Federal Claims, which has exclusive jurisdiction for Takings Claims made against the Government (including the Army Corps of Engineers). By filing such individual lawsuit, our clients will opt out of any class action, assuming one is ever certified by the Court.

Candidly, we believe property owners should be wary of participating in a class action if you’ve suffered a significant financial loss associated with the reservoir releases. As discussed above, Takings Claims related to government-induced flooding require a case-specific factual inquiry, and the amount of Just Compensation similarly depends on the facts and circumstances of each case.

Further, not only do Class actions take far longer than standard cases, they have much higher failure rates, and class members are forced to rely on a handful of class representatives (and their attorneys) to prosecute claims on their behalf. While this may make sense for small claims, we do not believe class actions are the best option for the Houstonians that suffered catastrophic damage to their homes or businesses because of the releases.


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Q: Does it matter whether I have flood insurance?

No. 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 flood insurance only covers 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.

Of course, property owners without flood insurance should seriously consider pursuing an inverse condemnation action, as it may be the only option they have to recover Just Compensation necessary to remediate and repair the damage to their homes, businesses, and personal property.


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

The location of your property and its history in prior storms may impact your inverse condemnation claim. For example, if your property flooded prior to the August 28th release, it would be very difficult to argue that the releases cause the flooding and its associated damage. However, simply being located in the 100-year or 500-year 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.


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

We recommend visiting http://www.harriscountyfemt.org. 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. This map shows this information for much of the downstream area:

Unfortunately, the downstream flooding 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 now prior notice that the Corps would decide to release 16,000 cfs, which made mitigating potential damage all but impossible.

Here again, the individual facts of each case will have a substantial impact on whether an inverse condemnation claim will be successful.


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Q: How long do these types of cases take?

The Court of Federal Claims is a trial court in Washington, D.C. that has exclusive jurisdiction over Takings claims brought against the Government. There is no right to a jury trial in the United States Court of Federal Claims. As of September 20, 2016, there were 235 Takings Claims pending before the United States Court of Federal Claims. Based on information obtained from the Department of Justice, it appears that Takings Claims took roughly 18 months.


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Q: Will you handle these cases on a contingent fee basis?

Yes, we are handling these inverse condemnation cases on a contingent fee basis. Our standard fee is 15% of any recovery obtained prior to filing a lawsuit, and 25% 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.


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Chandler, Mathis & Zivley, PC has offices located in Houston and Lufkin Texas and serves clients throughout East Texas as well as many other states.
*Principal office in Lufkin, Texas



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