In a significant and long‑awaited decision for property owners affected by government‑induced flooding, the U.S. Court of Appeals for the Federal Circuit has affirmed that the federal government is constitutionally required to compensate upstream landowners whose properties were intentionally and foreseeably flooded during Hurricane Harvey. The decision issued at the close of 2025 arises from a set of consolidated appeals involving the operation of the Addicks and Barker Dams in Houston, Texas during Harvey.
Our firm was proud to represent a group of plaintiffs‑appellees in this appeal. We regularly advocate for property owners whose land has been taken or damaged by federal action, and this decision reinforces foundational Fifth Amendment principles: when the government uses private land to protect the public at large, it must pay just compensation for an unconstitutional taking.
Background: The Addicks and Barker Dams
In response to catastrophic storms in the early 20th century, Congress authorized the U.S. Army Corps of Engineers to construct the Addicks and Barker Dams as part of a flood-control system designed to protect downtown Houston. Completed in 1948, the dams function as dry reservoirs that temporarily store stormwater and release it gradually to reduce downstream flooding.
Critically, when the dams were designed, the government made a deliberate cost-saving choice. Rather than acquiring all land that could be inundated during large storms, the Corps purchased only some upstream property—fully aware that, during severe rainfall events, water levels would exceed government-owned land and flood privately owned homes and businesses. Internal documents acknowledged that this approach would “eventually place the government in the position of having to flood” private property to protect downstream development.
That prediction became reality during Hurricane Harvey.
Homes that had never flooded before were submerged. Families were displaced. Structures and personal property were destroyed. Importantly, this flooding did not occur because the dams failed; it occurred because the dams worked exactly as designed—holding back water to spare downstream Houston, at the known and accepted expense of upstream landowners.
Hurricane Harvey and the Upstream Flooding
In August 2017, Hurricane Harvey stalled over the Houston area, producing historic rainfall—roughly 31 inches over four days in the Addicks and Barker watersheds. As the reservoirs filled to record levels, water spread beyond government-owned land and inundated upstream residential neighborhoods.
Homes that had never flooded before were submerged. Families were displaced. Structures and personal property were destroyed. Importantly, this flooding did not occur because the dams failed; it occurred because the dams worked exactly as designed—holding back water to spare downstream Houston, at the known and accepted expense of upstream landowners.
Those upstream property owners brought suit in the U.S. Court of Federal Claims, alleging that the government had taken flowage easements over their properties without just compensation, in violation of the Fifth Amendment.
The Court of Federal Claims: Liability and Damages
After a ten-day trial on liability involving representative “bellwether” properties, the Court of Federal Claims held the government liable for a taking. The court found that the plaintiffs owned private property not previously burdened by flowage easements, that the government intentionally and foreseeably flooded that property through its operation of the dams, and that the flooding amounted to a permanent taking of flowage easements rather than a mere accident or isolated trespass.
The court rejected the government’s defenses, including arguments based on police power, the Flood Control Act, and the doctrine of necessity. In a later damages trial involving six bellwether properties, the court awarded compensation for the taking of permanent flowage easements, for damage to structures and personal property, and for certain relocation- and leasehold-related losses.
The government appealed nearly every aspect of these rulings. Some plaintiffs cross-appealed limited damages and class-certification issues.
The Federal Circuit’s Decision: A Strong Affirmance on Liability
The Federal Circuit squarely affirmed the finding that the government effected a Fifth Amendment taking. The government argued that upstream owners never had compensable property rights because flood-control activities fall within the government’s police power or are insulated by the Flood Control Act. The court rejected this argument outright, relying on settled precedent that the government cannot redefine or eliminate property rights to avoid paying compensation.
The court emphasized that property ownership includes the right to exclude floodwaters unless and until the government lawfully acquires that right. Because the plaintiffs’ properties were not subject to preexisting flowage easements, the government was required to pay when it deliberately used that land for flood storage.
The Federal Circuit squarely affirmed the finding that the government effected a Fifth Amendment taking. The court emphasized that property ownership includes the right to exclude floodwaters unless and until the government lawfully acquires that right.
The Federal Circuit further held that the government’s actions constituted a permanent physical taking. When government action foreseeably causes recurring flooding, the result is not a mere tort but a taking of a permanent flowage easement. Although individual floods may come and go, the government effectively acquires an ongoing right to inundate the land whenever future storms require it.
Here, the record demonstrated that the Corps knew from the outset that major storms would exceed government-owned land, that severe storms in the Houston area were not speculative, and that the dams were operated according to a protocol that prioritized downstream protection at upstream expense. That combination made the flooding both foreseeable and inevitable over time.
Even if the flooding were characterized as “temporary,” the court explained, it would still constitute a taking under the Supreme Court’s multi-factor test for flooding cases. The duration, foreseeability, severity, character of the land, and property owners’ reasonable expectations all weighed in favor of compensation.
Finally, the Federal Circuit rejected the government’s attempt to invoke the doctrine of necessity. This was not an unforeseeable emergency requiring split-second action. Rather, it was the predictable consequence of a long-standing design and operational choice about where floodwaters would go. The Just Compensation Clause exists precisely to prevent instances like these where the government forces a small group of citizens to bear burdens that should be shared by the community as a whole.
Determination of Just Compensation
On damages, the court largely agreed with the trial court’s approach. It confirmed that property owners may recover not only for the taking of a permanent flowage easement, but also for damage to structures and personal property caused by the flooding. The court also upheld compensation for the taking of leasehold interests and approved the offset of FEMA disaster payments to prevent double recovery.
At the same time, the Federal Circuit vacated certain awards for lost rental income and displacement costs, explaining that lost profits and business-type losses generally fall outside the scope of just compensation under the Takings Clause. The court also required the trial court to reconsider the valuation of one property owner’s flowage easement, emphasizing that when the government takes a permanent right to flood land, it must pay for that right.
This decision is a significant reaffirmation of constitutional accountability in flood-control cases. It confirms that the federal government may not knowingly sacrifice private land without paying just compensation.
Why This Decision Matters
This decision is a significant reaffirmation of constitutional accountability in flood-control cases. It confirms that the federal government may not knowingly sacrifice private land without paying just compensation, even when the project serves an important public purpose. The government does not enjoy broad immunity for its operation and control of its flood-control infrastructures.
For property owners nationwide—particularly those located upstream of dams, levees, and reservoirs—the ruling sets out a clear pathway for asserting takings claims when governmental flood-management decisions impose recurring physical invasions on private land.
Our firm is dedicated to representing landowners whose property has been taken or damaged by federal action. The Constitution promises just compensation when private property is taken for public use, and the Federal Circuit’s decision in this case helps ensure that promise is honored.
Read full decision here.
