ADDICKS and BARKER RESERVOIRS
LEGAL TAKINGS ANALYSIS
FOR INCLUSION INTO SECTION 216
RECONNAISSANCE STUDY
This analysis will discuss the potential liability of the
United states for damages caused by induced floodwaters which may
occur as a result of the construction operation and maintenance
of the Addicks and Barker Reservoirs. The analysis will first
" discuss applicable legal principles then apply them to the facts
of the reservoirs. the final conclusion is that under current
operating conditions, flooding of private lands should not cause
a legal taking under existing case law.
DAMAGE va. TAKING
(The law makes a distinction regarding when the United states
is liable for damages caused by flooding induced from a federal
flood control project. The distinction is that the United States
is not liable for mere occasional damage to property caused by
induced floodwaters but can be liable if the induced flooding is
sufficiently frequent and inevitably recurring to amount to a
taking of an interest in property.
The United States, pursuant to the Federal Tort Claims Act,
can be liable for damage or injury caused by its negligent acts
in the same manner and degree as a private person. _ ‘The court
looks at the law in the state where the damage occurs to decide
negligence. See 28 U.S.C. Sec. 1346 (6). The Federal Tort
Claims Act, however, will not give rise to liability for flood
damages caused by operation of a flood control project unless theplaintiff could show that the flooding is sufficiently frequent
and inevitably recurring. The reason for this immunity from
liability for non-frequent or non-recurring flood damages is the
Flood Control Immunity Statute, 33 U.S.C. 702c. The immunity
statute state:
"No Liability of any kind shall attach to or rest upon the
United States for any damage from or by flood waters at any
place."
SOVEREIGN IMMUNITY
The United States cannot be sued unless Congress consents to
being sued. This concept of sovereign immunity stems from the
U.S. Constitution, 11th Amendment. The aforementioned Tort
Claims Act constitutes a limited consent by Congress waiving
immunity from tort liability for negligence. In essence, it says
that we can be sued in tort, for damages caused by our
negligence. Congress however, by the passage of the Flood
Control Immunity Statute, 33 U.S.C. 702c, has quite specifically
said that we cannot be sued under tort liability for flood
damages induced by a flood control project even if we are
negligent. This does not protect the U.S. from 5th Amendment
ldability for damaging a property so often as to amount to a
taking of an interest in land such as a flowage easement.
Therefore, the difference between a mere damage for which we are
immune, and a taking for which we are liable, is a matter of
degree and frequency.°
ELEMENTS OF A TAKING
For flood damages to rise to the level of a taking which
requires compensation under the 5th Amendment, the flooding must
be sufficiently frequent, inevitably recurring, and produce
substantial economic damage to the market value of the property.
See Bagwell v. United states, 21 Cl.ct.722 (1990). The flooding
must also be a natural and probable consequence of the government:
act. Bichard vy, United States, 282 F.2d 901,904,154 C1.Cct.
225,230 (1960). Of course the plaintiff must also show that it
is in fact the governments’ action or inaction that is the
factual or proximate cause of the flood damage.
Leading cases seem to indicate that flooding property on an
eccasional and sporadic basis does not rise to the level of a Sth
Amendment taking. As such, if no taking is found, there is no
compensation owed under tort law due to the immunity statute, 33
U.S.C. 7020.
A one time flood will not normally be considered as
“inevitably recurring " under existing case law unless it is
proven that it will reoccur with predictable frequency. In
J ed 1» 405 P.2a 1256,
(ct.c1.1969), the court held that inevitably recurring meant more
than one occasion and that even two or three floods may not be
enough.
The Court of Claims in Bryant v. United States, 216 Ct.Cl 409
(1978) held that one flood every 30 years was mere damage and not
a taking. Other cases have held that even closer frequency wasnot a taking such as once every 15 years. Fromme y. United
States, 188 Ct.cl 1112, 1119, 412 F.2d 1192,1197 (1969).
one caveat regarding frequency is that sufficient frequency
may well depend on the kind of land being flooded. While grazing
land may not suffer a great depreciation in value due to a flood
every 15 years and therefore not meet the substantial damage test
for a taking, déveloped industrial, commercial or residential
property may be seriously damaged from a value standpoint if
floods recur every 15 years.
UPSTREAM V DOWNSTREAM
Courts seem to be more inclined to find a taking in upstream
cases on lands that had never flooded before construction of a
flood control dam. A possible reason for this is that the U.s.
had the option of buying flowage easements on these lands which
probably affects the equities in the minds of the judges.
Further, in these cases, it is clear that the dam caused the
impounded flood waters. Upstream properties rarely receive any
flood control benefits from a downstream dam. Conversely,
downstream properties are usually flooded more often and to a
worse degree without the project than after a dam had been built
upstream. In essence, many downstream lands which may get
flooded during increased releases or uncontrolled spillway flow,
may have in the long run, received greater flood control benefits
due to the project. The relative benefits doctrine often
protects the United states from liability for downstream flooddamages, but is rarely applicable as a defense to upstream
claims.
RELATIVE BENEFITS
A defense to takings claims which has been successful in
Claims Court litigation is the relative benefits doctrine.
Essentially this doctrine recognizes, especially in downstream
flooding cases, that a flood control project may cause flood
damages but that over the long run, the project may have
benefitted the land more than harmed it. In 1939, the Supreme
Court in United States v. Sponenbarger, 308 U.S. 256,266 stated:
"...4£ governmental activities inflict slight damage upon
land in one respect and actually confer great benefits when
measured as a whole, to compensate the landowner further
would be to grant him a special bounty."
Also see ARK-MO Forms, Inc. v. United states, 209 Ct. Cl.
116, 530 F.2d 1384 (1976) and Accardi v. United states, 599
F.2d 423 (1979).
In essence, if property became more valuable because of a
project than it was in its natural state, even if the project
causes some short term damage, no further compensation is owed.
ADDICKS & BARKER .
Two possible liability scenarios present themselves, upstream
and downstream. When analyzing flood water takings potential, it
is always important to compare flood conditions before theproject and after the project for a determination of proximate
cause as well as the frequency and recurrability of flooding.
With Addicks and Barker, while the dams were built in the 40/
we did not settle on the 2,000 CFS, release limit until 1972.
Defining the upstream 100 year floodplain at the time we began
using the 2,000 CFS schedule would be useful in the event of
litigation.
DOWNSTREAM
There is very little question that the lands along Buffalo
Bayou, downstream of the reservoirs already flooded whenever
nature caused the Bayou to overflow its banks. Prior to
construction, these lands would clearly see floodwaters more
often and at greater depths than after construction. Due to
pressure from downstream interests who have encroached further
into the floodplain, the Corps has reduced its regulated release
rate of 13,300 cubic feet per second (CFS) plus local inflow
downstream, to the current cumulative flow. of 2,000 CFS at Piney
Point. This reduction necessarily results in higher water levels
for longer duration upstream of the dams than they were
originally designed to accommodate.
In the event that upstream flooding required the Corps to
increase releases greater than 2,000 CFS, even though
economic damage would result, there appears to be no liability to
the United states under existing case law. Without the project,
the downstream lands were far less valuable than with the project
thereby invoking the relative benefits doctrine. Moreover, ifpre-project conditions show that flooding downstream would be
even worse without the dams, then the project would not be the
proximate cause of the damage. Courts have often protected the
government from liability in rain events so large that our best
efforts are unable to prevent the flooding.
CAVEAT
The Corps has knowingly reduced discharges into Buffalo Bayou
beginning in 1949 to 7900 CFS and again 1963 when the remaining
two uncontrolled gates were gated.’ As a result, we have seen
the development of expensive homes and improvements closer to the
Bayou below the reservoirs. By keeping releases from the
reservoirs to a maximum of 2000 CFS, landowners have begun to
rely on these restricted flows.
While the United States is generally not liable under an
estoppel theory, there is no question that downstream owners have
made significant investments in property in reliance on the
restricted flows. Any decision to increase releases to the point
that significant downstream damages are caused, would have to be
a well reasoned decision in order to avoid potential liability
associated with an argument under the Federal Administrative
Procedures Act, 5 U.S.C. 706, that our actions are arbitrary and
capricious. At Addicks and Barker, since we have actively
participated in reducing flows which have allowed encroachment
‘prom the Buffalo Bayou and Tributaries Special Report, May,
1992, P.5.into the historic floodplain of Buffalo Bayou, any decision to
reverse this would have to be well reasoned and designed to
Prevent extensive damage elsewhere.
UPSTREAM
In the before project condition, much of the upstream
watershed would not have flooded as deeply or for the same
duration as would happen after construction of the dams. The
voluntary reduction of the regulated release from 13,300 CFS to
2000 CFS has made the upstream situation worse.
Fortunately the United States owns fee title in Addicks up to
the 250 year flood frequency.’ According to information
provided by Planning Division, in Barker, the United States owns
fee title to approximately the 70 year flood frequency. Assuming
these facts to be accurate, there is very little potential
liability under current conditions.
First, the undersigned has found no federal case that has
held the United States liable for a taking in an induced flood
frequency of 1 flood every 70 years.
Second, in the condition immediately following construction
of Barker Dam (1948), the upstream watershed was rural with
little improvements. Clearly a contributing factor to the
prospective problem has been uncontrolled development in the
watershed. The development upstream has increased run off rate
> Buffalo Bayou and Tributaries Status of Section 216 Recon
Study dated 24 January 1995, Page 2.
8into the reservoirs and decreased absorption and evapo-
transpiration resulting in higher levels in Addicks and Barker.
Aerial photos from 1972, the date we began the 2,000 CFS maxinum
release, show the upstream watershed to still be mostly rural.
The development since 1972 has been a major factor contributing
to the possibility of significant damage upstream.
Third, according to the aforementioned 24 January 1995 Status
Report, a 100 year flood will only raise Barker Reservoir one-
half foot on private land, from 97.3’ (government owned land) to
97.8/. The area of increase out of government owned land would
encompass 233 acres. This should not be construed as being
sufficiently frequent or substantially damaging enough to give
rise to a taking considering that it should happen only once
every 100 years.
Fourth, the Corps has used the 2000 CFS release scenario
since 1972 according to information provided by Planning
Division. Owners who have constructed homes upstream since that
time, in the area between the 70 year level, (Government owned
land), and the 100 year level, have constructed in the 100 year
floodplain and should have been made to elevate their property to
at least the 100 year level.
CoNcLUSION -
Due to the pre-project condition downstream and the large
amount of federal land upstream, it appears that the United
States has little potential for liability under currentconditions at Addicks and barker. With a 250 year event required
to exceed government land upstream of Addicks, there is even less
potential for liability.
The 100 year flood plain is an important criteria
economically. Property in the 100 year floodplain cannot get
federal financing or insurance without meeting certain
conditions, such as elevating the floor above the floodplain.
As stated earlier, even in 1972, the upstream watershed was
rural grazing land. Restricting downstream flows presented very
little risk of substantial damage upstream. Unfortunately
extensive development has been allowed without any requirement
for stormwater detention. Since we are aware that additional
uncontrolled development upstream will increase the potential for
flood damage claims against the United states, it is prudent to
insist that all new development must incorporate on site
detention in order to simulate the runoff rate existing before
that development. 0n site detention would also have the effect
of improving water quality into the reservoirs.
RECOMMENDATIONS
The above stated conclusion that there is very little
potential for a successful takings claim under current
conditions, relies on the majority of existing case law. There
is no question that in the field of legal takings, the courts, in
the last fifteen years, have been increasingly conservative and
protective of property rights. While this trend has been most
10evident in regulatory takings cases, there is every reason to
believe that given the right set of equities, Courts will be more
willing to find physical takings where people lose valuable
property. Given the nature of the expensive homes that would be
flooded and the quality of legal representation these owners
could afford, there is always the possibility of an adverse
ruling. In such cases, even if the United states prevailed, the
cases can drag on for years. Protracted litigation can be more
costly in man hours than the claim itself. For this reason, it
is prudent to look at options to further reduce the potential for
flooding valuable improved land. We should continue to insist
that Harris County take steps to prevent increased drainage into
the reservoirs. Finally, it would be prudent for Harris County to
make sure owners, future developers, and future buyers are put on
notice that they are in a reservoir. Ft. Bend County has
provided such notice in the past. Notice will help ensure more
responsible development, and reduce the likelihood that the U.S.
would be found liable in a takings lawsuit.
This opinion has relied upon federal case law since these are
100% direct federal reservoirs. If the 216 study matures into a
project, we would have a local sponsor execute the standard save
and hold harmless clause which should further insulate the United
States from liability.
Respectfully Submitted
Attorney, Real Estate Division
an