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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 the plaintiff 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 was not a taking such as once every 15 years. Fromme y. United States, 188 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 flood damages, 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 the project 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, if pre-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. 8 into 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 current conditions 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 10 evident 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