Houston homeowners whose properties flooded upstream of the Addicks and Barker reservoirs during Hurricane Harvey can expect compensation after a federal appeals court affirmed that the government is liable for the damage.
In a ruling issued last week, a three-judge panel of the Fifth Circuit Court of Appeals upheld a lower court’s 2022 decision finding that the flooding constituted an unconstitutional taking of private property. The case stems from the massive inundation that followed Harvey in 2017, when water backed up behind the reservoirs and spread into neighborhoods west of Houston.
Under the Fifth Amendment, the government must provide just compensation when it takes private property for public use, even if that use is temporary. The appeals court agreed with the Court of Federal Claims that the Army Corps’ handling of the reservoirs met that standard.
In its opinion, the panel concluded that the flooding was not a one-time accident. Judges found that the government should have anticipated that homes adjacent to the reservoirs would be repeatedly inundated when the structures were used to store excess floodwater. Even if the flooding were characterized as temporary, the court said, it would still qualify as a taking.
The reservoirs are operated by the U.S. Army Corps of Engineers, which manages flood control infrastructure across the country. During Harvey, water levels rose to historic highs, and thousands of properties were damaged as the reservoirs filled beyond their intended capacity.
Attorneys representing the upstream homeowners argued that the government made a long-standing, deliberate decision to use private land as part of its flood control strategy. That argument ultimately persuaded both the trial court and the appellate panel.
“This decision confirms that the government made a very calculated decision decades ago to use private property as flood storage to protect downtown Houston and downstream properties,” said Daniel Charest, a managing partner at Burns Charest LLP, which represented many of the plaintiffs.
The ruling applies specifically to homeowners whose properties flooded upstream of the reservoirs. Those residents have known since 2022 that the government was liable, though individual compensation amounts still must be determined.
A separate and closely watched case involving homeowners downstream of the reservoirs remains unresolved. Those residents were flooded after the Corps opened the reservoir gates along Buffalo Bayou in the days following Harvey, sending water into neighborhoods east of the dams.
That downstream litigation has faced years of delays, including changes in court leadership, pandemic-related disruptions, and an initial dismissal that was later overturned on appeal. A federal judge had previously ruled that property owners had no right to compensation, citing flood-control purposes and the fact that many plaintiffs purchased their homes after the reservoirs were built.
An appellate court rejected that reasoning in 2022, holding that the government is not immune from takings claims simply because its actions relate to flood control. The case was sent back to the trial court to determine whether the Army Corps’ decision to open the gates amounted to a taking and whether the flooding was unavoidable.
That trial wrapped up arguments earlier this year. Lawyers for homeowners contend the reservoirs were never in danger of catastrophic failure and that the Corps followed its existing operating manual, knowing which downstream areas would flood. Government attorneys have argued the storm’s unprecedented scale left officials with no choice.
While the upstream ruling brings long-awaited clarity for some Harvey victims, thousands of downstream homeowners are still waiting to learn whether they, too, will be compensated for losses suffered more than eight years ago.
