Houston was under water during Hurricane Harvey. Many people whose properties were not flooded from the Hurricane itself, and had never previously flooded, found themselves waist deep in flood water – their homes, businesses, and personal property forever ruined.

We now know that many areas were flooded solely because the US Army Corps of Engineers intentionally released the flood gates on the Addicks and Barker Reservoirs. Merlin Law Group’s Houston attorneys are pursuing legal recourse against the US Army Corps of Engineers on behalf of flood victims.

These lawsuits are pending in the US Court of Federal Claims, and the court has separated the litigation into two tracks depending on the location of the flooded property: (1) downstream and (2) upstream. On January 7, 2019, the Addicks Barker Reservoir downstream litigation was reassigned from former Chief Judge Braden to Senior Judge Loren A. Smith. Judge Lettow continues to preside over the upstream cases.

The US Army Corps of Engineers is represented by attorneys who work for the US federal government in the Department of Justice. On January 2, 2019, the Government filed a motion for a stay of case, given lapse of appropriations and the government shutdown. Judge Lettow denied the motion to stay on the upstream docket emphasizing that “[t]he partial lapse in appropriations affects the Department of Justice and may affect some potential witnesses, but does not affect the Army Corps of Engineers, nor does it currently affect the court.”

On January 8, 2019, Judge Smith granted the motion to stay on the downstream docket. Judge Smith also vacated all future deadlines in the downstream cases and stated in his order that the pre-trial and trial schedule is “infeasible and inoperable.” Judge Smith has stated that a scheduling conference for downstream cases will be convened “once funding to the Department of Justice has been appropriated.”

Trial for upstream cases before Judge Lettow is set for February 19, 2019.

Depositions and discovery for these cases are ongoing. Through depositions and discovery, we have gained insight into these government entities regarding flood control generally, coordination during Harvey, and their decision to open Addicks’ and Barkers’ flood gates. For example, City of Houston employees testified that water standing in the streets and in homes downstream for weeks following Harvey was not caused by the City’s drainage infrastructure.

Testimony by Harris County Flood Control District representatives suggests that the US Army Corps of Engineers knew several hours in advance exactly when and how much water would be released from the Addicks and Barker reservoirs, but they failed to communicate that information to the appropriate HCFCD personnel and to the public.

The evidence gained from the fact witnesses and documents supports the allegations, including that despite warnings the Government’s decision to leave the flood gates almost fully open for that duration was a deviation from the Water Control Manual to drain the reservoirs. Neither Harris County nor the City of Houston were involved in that decision-making process.

The lawsuits are ongoing, and new cases are being signed up and filed every day. We can only hope Judge Lettow proceeds with trial in the upstream matters as planned on February 19th, and that Judge Smith continues to push the ball forward on the downstream matters.

  • A similar situation arose with the Nashville, TN area floods of 2010. Damage to the Opryland complex were attributed to the ACE’s opening of Old HIckory dam, an action allegedly taken for fear that there could otherwise be structural compromises at the dam, not to mention the flooding already taking place upstream from the dam.