2019-05-06 Harvey - Trial Testimony Day 1 (Opening, Thomas) - FULL

1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
2
3
4 IN RE: UPSTREAM ADDICKS AND ) Master Docket No.
5 BARKER (TEXAS) FLOOD-CONTROL ) 17-9001L
6 RESERVOIRS. )
7 _________________________________)
8
9
10 Courtroom 11B
11 BOB CASEY UNITED STATES COURTHOUSE
12 515 Rusk Street
13 Houston, Texas 77002
14 Monday, May 6, 2019
15 9:30 a.m.
16 Trial Volume 1
17
18
19 BEFORE: THE HONORABLE CHARLES F. LETTOW
20
21
22
23
24
25 DAVID M. LEE, RMR, CCR
2
Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/6/2019
1 APPEARANCES:
2 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAM ADDICKS
3 AND BARKER (TEXAS) FLOOD-CONTROL RESERVOIRS:
4 BURNS CHAREST, L.L.P.
5 BY: DANIEL H. CHAREST, ESQ.
6 900 Jackson Street
7 Suite 500
8 Dallas, Texas 75202
9 (469) 444-5002
10 dcharest@burnscharest.com
11
12 IRVINE & CONNER, L.L.C.
13 BY: CHARLES W. IRVINE, ESQ.
14 4709 Austin Street
16 (713) 533-1704
17 charles@irvineconner.com
18
19 WILLIAMS, KHERKHER, HART, BOUNDAS, L.L.P.
20 BY: EDWIN A. EASTERBY, ESQ.
21 8441 Gulf Freeway
22 Suite 600
24 (713) 230-2200
25 aeasterby@williamskherkher.com
For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
3
Trial
1 APPEARANCES CONTINUED:
2 DUNBAR HARDER, P.L.L.C.
3 BY: LAWRENCE G. DUNBAR, ESQ.
4 10590 West Office Drive
5 Suite 2000
7 (713) 782-4646
8
9 VB ATTORNEYS
10 BY: VUK VUJASINOVIC, ESQ.
11 6363 Woodway Drive
12 Suite 400
14 (713) 224-7800
15 vuk@vbattorneys.co
16
17 AHMAD ZAVITSANO, ET AL.
18 BY: KYRIL V. TALANOV, ESQ.
19 HILARY S. GREENE, ESQ.
20 1221 McKinney Street
21 Suite 2500
23 (713) 655-1101
24 hgreene@azalaw.com
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
4
Trial
2 McGEHEE, CHANG, BARNES, LANDGRAF
3 BY: JACK E. McGEHEE, ESQ.
4 10370 Richmond Avenue
5 Suite 1300
7 (713) 864-4000
8 jmcgehee@lawtx.com
9
10 SULLINS, JOHNSTON, ROHRBACH & MAGERS
11 BY: MICHAEL J. DULANEY, ESQ.
12 2200 Phoenix Tower
13 3200 Southwest Freeway
15 (713) 521-0221
16
17 ON BEHALF OF THE DEFENDANT:
18 UNITES STATES DEPARTMENT OF JUSTICE
19 ENVIRONMENT & NATURAL RESOURCE SECTION
20 BY: WILLIAM SHAPIRO, ESQ.
21 501 I Street
22 Suite 9-700
23 Sacramento, California 95814
24 (916) 930-2207
25 william.shapiro@usdoj.gov

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
5
Trial
2 UNITED STATES DEPARTMENT OF JUSTICE
4 BY: KRISTINE S. TARDIFF, ESQ.
5 53 Pleasant Street
6 Fourth Floor
7 Concord, New Hampshire 03301
8 kristine.tardiff@usdoj.gov
9
10 UNITED STATES DEPARTMENT OF JUSTICE
12 BY: LAURA DUNCAN, ESQ.
13 601 D Street, N.W.
14 Third Floor
15 Post Office Box 7611
16 Washington, D.C. 20044
17 (202) 305-0466
18 (202) 305-0506 (Facsimile)
19 laura.duncan@usdoj.gov
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
6
Trial
2 UNITED STATE ARMY CORPS OF ENGINEERS
3 GALVESTON DISTRICT, OFFICE OF COUNSEL
4 BY: JAMES E. PURCELL, ESQ.
5 2000 Fort Point Road
6 Suite 369
7 Galveston, Texas 77550-1229
8 (409) 766-3822
9 james.e.purcell@usace.army.mil
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
7
Trial
1 I N D E X
2
3 Opening Statements Page
4 By Mr. Charest 15
5 By Mr. Shapiro 30
6
7 Witness: Direct: Cross: Redir: Recross: Vr Dire:
8 Charles, III 53/109 108/263
9 141/265 310
10 311
11
12 E X H I B I T S
13 Number: Marked: Admitted:
14 Joint:
15 5 191
16 7 196
17 15 209
18 16 213
19 22 253
20 26 298
21 94 74
22 110 62
23 116 109
24 118 118
25 143 151

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
8
Trial
1 E X H I B I T S (Continued)
3 Joint:
4 144 151
5 228 160
6 233 129
7 239 131
8
9 Plaintiffs’:
10 25 168
11 34 215
12 35 219
13 37 235
14 38 242
15 39 247
16 42 267
17 44 278
18 45 284
19 46 292
20 48 304
21 52 112
22 53 112
23 85 307
24 86 311
25 777 203

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
9
Trial
1 E X H I B I T S (Continued)
3 Plaintiffs’:
4 1660 147
5 1936 233
6 2297 149
7 2298 157
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
10
Trial
1 Houston, Texas
2 May 6, 2019
3 9:26 a.m.
4
5 P R O C E E D I N G S
6 IN OPEN COURT:
7 THE COURT: The case before the Court this
8 morning and for several weeks is the Upstream Addicks
9 and Barker Reservoir Flood Control cases, number
10 17-9001L.
11 Our court reporter for the interim and
12 for the rest of the trial will be David Lee.
13 If counsel have any questions about the
14 court reporting or the timing, contact, please,
15 Mr. Lee.
16 We have the pretrial order that was
17 issued on April 25th, and it was modified very
18 slightly.
19 I would ask that counsel for the
20 Plaintiffs to identify themselves for the record.
21 Mr. Charest.
22 MR. CHAREST: Yes, your Honor.
23 Daniel Charest on behalf of the Upstream
24 Plaintiffs.
25 THE COURT: Yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
11
Trial
1 MR. IRVINE: Charles Irvine on behalf of the

2 Upstream plaintiffs.
3 THE COURT: Welcome.
4 MS. WRIGHT: Lydia Wright on behalf of the
5 Upstream plaintiffs.
6 MR. BISHOP: Larry Bishop on behalf of the
7 Upstream Plaintiffs.
8 THE COURT: Thank you.
9 MR. DUNBAR: Larry Dunbar from the Upstream
10 Plaintiffs.
12 MR. VUJASINOVIC: Vuk Vujasinovic for
13 Upstream Plaintiffs.
14 MR. EASTERBY: Your Honor, Armistead Easterby
15 for Upstream Plaintiffs.
17 Mr. Shapiro and your colleagues, would
18 you introduce yourself as counsel for the government.
19 MR. SHAPIRO: Good morning, your Honor,
20 William Shapiro, Department of Justice, for the
21 United States.
22 MS. TARDIFF: Good morning, your Honor.
23 Kristine Tardiff.
25 MR. DAIN: Good morning, your Honor.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
12
Trial
1 David Dain, United States Department of

2 Justice.
4 Welcome.
5 FEMALE DOJ LAWYER: Good morning, your Honor.
6 (Indiscernible) for the United States.
7 MR. LAVINE: Good morning, your Honor.
8 Brad Lavine (phonetic) for the United
9 States.
11 MR. PURCELL: Good morning, your Honor.
12 James Purcell, United States Army Corps
13 of Engineers.
15 MS. DUNCAN: Laura Duncan for the United
16 States.
17 THE COURT: Say your last name again, please,
18 in the microphone.
19 MS. DUNCAN. Duncan, Laura Duncan.
21 We'll have to help each other with the
22 sound in this courtroom, as Ms. Evans, who is the
23 chief judge's scheduler and organizer, and so on and
24 so forth, has warned us in advance of the trial, the
25 acoustics in this room are not the greatest. Sound

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
13
Trial
1 tends to get trapped and gets deadened, so you'll

2 have to try to speak into the microphone if you
3 possibly can.
4 We have a schedule that allows for
5 20-minute opening statements on each side. We're
6 about ready to begin with that.
7 Are there any other preliminary matters?
8 Mr. Charest?
9 MR. CHAREST: None for the Plaintiffs, your
10 Honor.
12 Mr. Shapiro?
13 MR. SHAPIRO: Your Honor, we have -- I just
14 want to introduce the United States representative,
15 as he is a witness in this case.
16 THE COURT: Yes, please.
17 MR. SHAPIRO: And that's Rob Thomas.
18 THE COURT: Mr. Thomas, you're a back-seater
19 this morning, but you will not be later on, I take
20 it.
21 MR. SHAPIRO: Actually, I think he will be
22 the first witness, your Honor.
24 MR. SHAPIRO: The other issue we wanted to
25 raise, your Honor, is we understand the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
14
Trial
1 Plaintiffs' -- it relates to the Plaintiffs' opening

2 statement.
3 In compliance with the Court's pretrial
4 order, Plaintiffs identified to us a demonstrative
5 that they intend to use during their opening
6 statement, and what that is, as I understand it, is a
7 clip of a video deposition that was taken in this
8 case. And, your Honor, we would oppose that. It's a
9 clip, as we understand it, of a deposition taken of
10 Richard Long. It was not a 30(b)(6) deposition. We
11 have no problem at all, and Plaintiffs are certainly
12 free to characterize Mr. Long's anticipated trial
13 testimony however they wish, but we do oppose the use
14 of a selected clip of that video deposition.
15 Plaintiffs did not move prior to trial
16 to introduce the exhibit -- to make the deposition
17 transcript an exhibit, and it is therefore
18 inadmissible hearsay.
19 Mr. Long will testify in this case.
20 Plaintiffs intend to call him in their case-in-chief,
21 and we intend to call him as well in our
22 case-in-chief.
23 Excuse me.
24 But our concern, your Honor, is the use
25 of hearsay testimony in opening statements is not

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
15
Trial
1 appropriate. It's also a clip or two from the

2 deposition, which was a multi-hour deposition, taken
3 out of context. So we think the proper way to see
4 that testimony is on the stand when he testifies
5 live.
6 THE COURT: If the Court recalls correctly,
7 Mr. Long is an official actually assigned to the
8 dams; is that correct?
9 MR. SHAPIRO: He does work at the dam, yes,
10 your Honor. He is a resource office manager there.
11 THE COURT: So he is an employee of the Corp
12 of Engineers?
13 MR. SHAPIRO: He is.
14 THE COURT: Mr. Charest.
15 MR. CHAREST: Well, it's opening statement,
16 your Honor. It's not being offered as evidence.
17 It's to frame the issues. It's not -- it's just me
18 talking to this person.
19 THE COURT: The Court will allow it, not as
20 evidence, but allow it as a demonstrative in opening
21 statements, so it's not admitted for any evidentiary
22 purpose.
23 MR. SHAPIRO: Thank you, your Honor.
24 THE COURT: Mr. Charest.
25 MR. CHAREST: Thank you, your Honor.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
16
Trial
1 Your Honor, I have the privilege of

2 representing the Upstream flood victims in this case,
3 and I've attended many town halls and been in many
4 ruined houses and talked to many folks about the
5 case. And one consistent question that comes up is
6 how is it that the government can put the water on my
7 land, and what can we do about it, and what is this
8 case really about.
9 And I always go back to the same
10 exact -- there we go.
11 I go to the same exact overhead view and
12 I say, Look, in the '40s, the government constructed
13 dams in order to protect the downtown Houston area,
14 the Houston ship channel, the Buffalo Bayou, and
15 protect millions of people, probably saved thousands
16 of lives, encourage billions and trillions of dollars
17 in commerce. As a result of that and just general
18 economic growth, Houston has been strong and safe and
19 has become the fourth largest city in the country and
20 a national economic center.
21 When designing the dams -- when
22 designing the dams, the government bought a certain
23 amount of land, and by design of the dams, the
24 government did not buy enough land to service the
25 amount of water that can be carried under it. That

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
17
Trial
1 was not an accident. It was part of the design, and

2 the Corps knew it, and knew that under certain
3 circumstances, the dams would impound water on
4 private property.
5 We do not take issue with the
6 government's decision to build the dams. We don't
7 take issue with the government's decision on how much
8 land to buy. Those are the exercises of the
9 sovereign power that the government has.
10 But when the decisions to shift the
11 burden of the many onto the few happened, and the
12 harm is felt by those people in the Upstream areas,
13 the contract between the sovereign and the people
14 requires that the sovereign compensate justly those
15 people.
16 The takings clause is designed to bar
17 the government from forcing some people alone to bear
18 public burdens, which in all fairness and justice,
19 should be borne by the public as a whole. And when
20 in a case like this, the government physically takes
21 possession of the property for a public purpose,
22 which is protecting downstream, protecting the
23 Buffalo Bayou and protecting the Houston Ship
24 Channel, the government has a categorical duty to
25 compensate the homeowner.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
18
Trial
1 In this case, for a takings case, we

2 have to prove essentially three things: An
3 intentional act by the government for a public
4 purpose; causation, that the act caused the flooding;
5 and the severity of the flooding. And we'll prove
6 each one here, sir.
7 The first issue we'll talk about is the
8 intentionality. Ever since Pumpelly, the Supreme
9 Court has recognized that the backing of water so as
10 to overflow the lands -- overflow the lands of an
11 individual, if done under statutes authorizing it for
12 a public benefit, is a taking protected by the
13 Constitution.
14 In this case, there can be no more
15 intentional act than building a dam and holding water
16 behind it. That is the very function of the dam, and
17 the dam, by design, holds more water than the land is
18 allowed to service. So, of necessity, by design of
19 the dams, the Corps built the dam to put water on
20 private property. There is no mistake there.
21 There's no accident. It was an intentional act by
22 the Corps, by the government, for the downstream --
23 the benefit of downstream, not the public benefit.
24 And during Harvey, and throughout the
25 operation of the dam, it's governed by the water

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
19
Trial
1 control manual. It's not like the Corps of Engineers

2 and military is going to be going off and making
3 random decisions. They follow the Manual by the
4 book, literally. And when Harvey happened, Harvey --
5 the dams performed as expected. The project was
6 performing as expected.
7 The Post Action Report confirms the dams
8 functioned as expected, and Mr. Long will tell you
9 the same exact thing.
10 (The Digital recording was played as
11 follows:
12 "Q. No issue involving the integrity;
13 true?
14 "A. Not to my knowledge.
15 "Q. Dams performed as expected?
16 "A. To my knowledge, yes, sir.
17 "Q. You were proud of how the dam
18 performed?
19 "A. Yes.)
20 MR. CHAREST: Proud of how the dams performed
21 because the dams did exactly what the Corps and the
22 government intended to do, protect downtown Houston,
23 and as a necessary consequence of that, put federal
24 waters, impounded federal waters, on private property
25 for an extended duration. So that's intentional.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
20
Trial
1 In terms of causation, in the back of

2 the courtroom here we have Dr. Phil Bedient, who is
3 our expert on hydrology. He's looked at each of the
4 thirteen test properties -- we have eight in Addicks
5 and five in Barker -- and confirmed that the cause of
6 their flooding is the water being impounded and held
7 back by the dams, and that is the exclusive cause.
8 No other cause resulted in structural flooding of any
9 of the test properties, other than the dams.
10 And that won't surprise the Court, I
11 don't think, to know that the Plaintiffs' expert
12 confirms the Plaintiffs' theory. What might surprise
13 the Court is that the defense expert also confirms
14 our theory.
15 The defense expert's model shows that
16 the maximum level of flooding was caused by the dams,
17 so for each one of the test properties, according to
18 their own model, the maximum level of flooding
19 resulted from the dams. And when you run the
20 simulations without the dams, you don't achieve the
21 same level of flooding, so both the Plaintiffs'
22 expert and the defense expert agree on that key issue
23 of causation.
24 Further, as to ten out of the thirteen
25 properties, even the defense expert agrees that the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
21
Trial
1 sole cause of structural flooding was the dams. So

2 ten of the thirteen, when we run the model, we can
3 show that ten out of thirteen of the test properties,
4 even according to their model, there would be no
5 structural flooding but for the dams.
6 So now we're just down to the question
7 of three, and that's where the experts come into
8 dispute where they -- their expert says they had some
9 structural flooding, but not as much as the river-run
10 flooding or other causes, and our expert excludes
11 those reasons. But even so, the debate is about the
12 lower level flooding, not the maximum level of
13 flooding, and that's causation.
14 The third issue is severity. The rule
15 of the Supreme Court is that severity when measured
16 in terms of whether or not the owners were deprived
17 of the customary use of their property and whether or
18 not there was -- when you have a physical invasion of
19 the property by the government of taking, the rule is
20 readily found.
21 In this case you had exactly that: It
22 is a physical invasion of private property by the
23 federal waters. It caused evacuations. It took away
24 their means of egress and ingress, and it took away
25 their right to exclude, it took away their ability to

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
22
Trial
1 conduct business, permanently took components of the

2 structures and caused significant harm to real
3 property, and immense personnel expense to repair and
4 remediate from the floods.
5 People lost everything. People lost
6 possessions, memories, and all their worldly goods in
7 this flood. This physical, prolonged invasion of
8 private property by the federal waters must be severe
9 if you're talking about imposing, impounding federal
10 floodwaters inside a person's home.
11 And so that's the case for the
12 Plaintiff: It's the intentional act by the
13 government. It's the causation, and severity, in a
14 nutshell.
15 The government's defense is one of
16 foreseeability, generally. First, they say the storm
17 was unprecedented in nature and could not be
18 expected, and then they also say in some of their
19 arguments that we didn't really intend to flood the
20 Upstream areas, or we didn't know it would happen in
21 those areas. Neither is true.
22 As to the foreseeability, we have to
23 understand what the word "unprecedented" means at law
24 for a takings case. It means that a storm of this
25 nature never happened and could not reasonably have

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
23
Trial
1 been anticipated. That's the unforeseen-act-of-God

2 defense, in a nutshell.
3 Harvey put 30 to 35 inches of water
4 across the watershed of the Addicks and Barker.
5 During -- in the very design documents in the '40s,
6 the Court will see that the U.S. Army Corps of
7 Engineers, set the takings line based on the 1935
8 storm, but their own comments say (reading:) A
9 careful study of the weather maps of the storms
10 indicated that only chance has prevented a storm over
11 the basin much larger than the 1935 storm.
12 And they say (reading:) In 1899, in
13 Hearne, Texas, only 90 miles away, under
14 meteorological conditions that could be approximated,
15 closely over the Buffalo Bayou watershed, was this
16 other incurred (sic) storm. The Hearne storm, it
17 fell -- it deposited 34-1/2 inches of rain, and that
18 was in 1940. The Corps new about it, so this notion
19 of an unprecedented storm just doesn't hold.
20 Further, with the history of the dams,
21 when rain events like Allison and Claudette came
22 through, the Corps studied the effects of those and
23 how they would look if they had fallen over the
24 watersheds and over the top of the dams. And the
25 Corps themselves say, look, this Claudette, occurred

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
24
Trial
1 last year -- which was in 1980 -- was within 40 miles

2 of the reservoir. The occurrence of a storm that
3 would cause a dam failure is not considered a remote
4 possibility; talking about the likelihood of these
5 rain events being significant enough to flood
6 upstream waters is not a remote possibility.
7 And over the life of the dams, there's
8 been roughly a dozen storms of that type of
9 magnitude. Not all of them would have got off the
10 Hearne-owned lands, but a lot of them tested the
11 boundaries. Some have gone much further than Harvey,
12 and some of them got over the dams and caused
13 failure, potentially, according to the Corps' own
14 documents.
15 And the other issue we talked about is
16 the expanse of Houston was a surprise to the Corps,
17 and we didn't intend to flood homes and businesses.
18 That's the sort of tenet that you'll hear. And
19 that's also false.
20 I expect you'll see a land use map from
21 the 1940s, and I expect you'll see a land use map
22 from the 2000s. You probably won't see one from the
23 '70s, because in the '70s, the land use in the fringe
24 area, which is what the government calls the Upstream
25 areas, was largely undeveloped and residential at

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
25
Trial
1 most. And that's when the government started saying,

2 hey, look, we need to buy some more land, or else
3 we're going to be flooding -- instead of farmland,
4 we'll be flooding neighborhoods.
5 When it first came up in 1973 -- this is
6 a Corps memo: The fact that maximum impoundment in
7 the subject reservoirs will cause flooding in
8 substantial amounts of private lands adjoining
9 government lands, is expected to soon become public.
10 What's the response?
11 The Corps decided it needed to develop a
12 history and rationale for their operating concept.
13 What's that operating concept? Impounding flooding
14 water on private lands without the benefit of flowage
15 easement or other legal rights.
16 In 1977 there's study notes that
17 development will surround the areas in the next 10 to
18 20 years.
19 1979, the Corps does another study and
20 notes that we've acquired to certain elevations but
21 these dams can hold 12 and 13 feet more, and under
22 the residential development that's going on around
23 the government-owned lands, extensive damage would
24 occur in the reservoir area from an event of this
25 magnitude. Again, we know this is going to happen.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
26
Trial
1 We project it's going to happen. This is not any

2 kind of surprise.
3 1980, in a memo talking about some
4 repairs that were done to the dams. The Corps says,
5 (reading:) The public was keenly aware of these
6 repairs, and now probably perceives the dams to be
7 safe. These repairs, however, did not address the
8 problem of inadequate spillway capacity, possible
9 flood hazard areas downstream, and upstream areas
10 subject to flooding outside of existing government
11 feed (sic) line. The public has not been informed of
12 any of these problems. These areas on the Upstream
13 side of the reservoir are developing quickly and
14 should additional lands, primarily undeveloped lands,
15 not be purchased now, the opportunity will be lost
16 forever or probably will be lost forever. That's
17 1980.
18 In '92, there's a study of exactly what
19 to do about upstream flooding. The Corps, among the
20 different options, identifies no action as one
21 possibility, and no action is the decision the Corps
22 took, and here's what the Corps said about that
23 decision:
24 (Reading:) In this case no action would
25 mean accepting the risk that substantial

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
27
Trial
1 number of houses will be damaged by rare

2 severe flood events -- events plural.
3 Residents will be forced to evacuate, and
4 remain in temporary housing for long
5 periods. The health and safety risks will
6 be perpetuated, and the government will
7 continue to be subject to potential claims
8 for monitory loss and the Corps will be
9 faced with a continuing adverse public
10 image.
11 THE COURT: Mr. Charest, you're quoting from
12 a document that was issued in the early '90s; is that
13 correct?
14 THE WITNESS: '92, yes, sir.
15 THE COURT: The dams themselves were extended
16 and heightened, if the Court recalls correctly, in
17 the 1980s.
18 To what extent will the evidence show
19 the degree of the expansion of the dams at that
20 point?
21 MR. CHAREST: The Court will be hearing about
22 that from Mr. Thomas, who is the first witness, sir.
23 And to that point, every decision that was made about
24 the modifications to the dam was to allow them to
25 hold more water, protect downstream, and impose more

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
28
Trial
1 of a burden upstream, every single decision, sir.

2 The last document in this run here, your
3 Honor, is the last study that the Corps did on the
4 likelihood and threat of upstream damage. This is a
5 216 report in 1995. The Corps notes the potential
6 threat of property damage upstream. It talks about
7 recent flood events. In recent events, it says,
8 (reading:) Indicate the potential for future claim
9 followings (sic), plural again.
10 So the Corps' decision at that point is
11 to accept existing conditions and risk through no
12 action. Meaning, we understand the risk; we're not
13 going to go acquire the land; we're going to accept
14 the result of it, and that's what they've done here
15 and that's how we got to this point.
16 The last document to look at, sir, is in
17 this march through, is to talk about the inevitable
18 reoccurring. The Corps says, okay, well, maybe we
19 did know, and maybe we were aware that it would
20 flood, but you have to prove this is going to flood
21 more than once. They're trying this one-free-flood
22 kind of argument. The Corps, in a nonpublic meeting,
23 set out the following facts.
24 Fact: Addicks and Barker are capable of
25 putting development above the reservoirs under water.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
29
Trial
1 Fact: It would require a major storm to

2 do this.
3 Fact: Storms have occurred near our
4 area that would have caused flooding off
5 government-owned lands in Addicks and Barker. The
6 conclusion from this meeting was although Addicks and
7 Barker never flooded off government lands, after
8 seeing a potential for flooding from a the huge
9 storms Allison and Claudette, we know it can and
10 probably will happen at some point in time. This is
11 2009.
12 It did, in fact, happen in 2017, but
13 this same risk year after year is imposed on the
14 upstream properties and all to the benefit of the
15 downstream properties.
16 And the last question I get every time
17 when I have a meeting with people from the Upstream
18 properties, they say, is this going to happen again?
19 And I have to tell them the answer is
20 yes. It will happen again, and if party (sic)
21 happened tomorrow, if the same weather pattern came
22 across, the same events would unfold because the
23 design of the dams haven't changed, the construction
24 of the dams have not changed, and the operation of
25 the dams have not changed, nor could they, because

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
30
Trial
1 the Corps is under a Congressional mandate to protect

2 downstream at the expense of upstream, and that's why
3 the Upstream Plaintiffs are entitled to just
4 compensation, sir.
5 THE COURT: Thank you, Mr. Charest.
6 Mr. Shapiro.
7 MR. SHAPIRO: Good morning, your Honor.
8 May it please the Court.
9 THE COURT: Good morning.
10 MR. SHAPIRO: Like tens of thousands of other
11 property owners in and around Harris and Fort Bend
12 Counties, Plaintiffs experienced some flooding on
13 their property during Hurricane Harvey, the largest
14 rainfall event to ever hit the United States in
15 history.
16 During that storm, an average of more
17 than 30 inches of rain fell across Harris County.
18 That's 2-1/2 feet of water in a single storm,
19 approximately 80 percent of the average annual
20 precipitation in this area, over approximately a
21 four-day period.
22 This flood is a historically large
23 rainfall event for the Houston region, and it
24 resulted in widespread flooding.
25 I'm going to show you up on the screen

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
31
Trial
1 my copy of Defendant's Exhibit 734. This is a

2 graphic that shows the watersheds in Harris County.
3 I know the Court is familiar with that term, and
4 we'll hear about it during the trial.
5 But one can see the Addicks and Barker
6 watersheds, which are above the two reservoirs, which
7 are part of the Buffalo Bayou and Tributaries
8 Project, which is the federal project that's the
9 subject of this lawsuit, and then downstream, the
10 Buffalo Bayou watershed, which carries water to
11 downtown Houston where we're located now.
12 As the rain continued to fall, it
13 saturated the ground upstream of the reservoirs, and
14 flowed across streets and other impervious materials
15 towards the City of Houston, which I'm pointing out
16 now, sort of the center of Defense Exhibit 734.
17 The rainfall filled streams and channels
18 and flowed into the two reservoirs at the east side
19 of the Addicks and Barker watersheds on the screen.
20 Harris County experienced flooding,
21 though, in every single one of the watersheds that
22 we're seeing, all 22 watersheds.
23 This storm was estimated as a 1000-year
24 event in some areas, and others will show that in the
25 two watersheds that are most relevant for our case,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
32
Trial
1 the Addicks and Barker watersheds, the storm has been

2 measured as approximately a 770-year event in
3 Addicks, and 840-year event in the Barker watershed.
4 Those storms caused large flood pools of
5 water to form behind each of the dams, and although
6 no one predicted Hurricane Harvey before it struck,
7 the Corps did operate the reservoir based, as it was
8 supposed to, consistent with the Water Control Manual
9 for the project.
10 Eventually the flood pools behind the
11 dams rose at such a rate that the Corps began making
12 releases of flood water downstream through the dam's
13 outlet structures, what are known as induced
14 surcharge releases, and we'll hear testimony about
15 what those are during the course of the trial.
16 The flood pools that were created behind
17 the dams were the largest in project history, and
18 releases like that had never been made previously on
19 this project.
20 THE COURT: Had releases been made previously
21 and will the evidence show that?
22 MR. SHAPIRO: Yes, your Honor. You'll hear
23 the story of how the reservoirs typically operate and
24 what was special about this.
25 Even before the flood waters fully

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
33
Trial
1 receded, the landowners upstream and downstream of

2 the dams filed Fifth Amendment takings claims against
3 the United States, and of course, in this trial the
4 Court will hear the claims of several upstream
5 landowners who claimed that the United States
6 violated the Fifth Amendment by failing to release
7 the Hurricane Harvey floodwaters that backed up
8 behind the dams. We can look at -- this is defense
9 Exhibit 819.
10 This is an aerial image, your Honor,
11 that shows the Addicks reservoir. It's difficult to
12 make out on the screen, but the words that we're
13 seeing here are the location of Plaintiffs'
14 properties, the trial properties the Court will be
15 hearing about over the next two weeks.
16 In Defendant's Exhibit 823 is a similar
17 aerial image of the Barker reservoir with the trial
18 properties denoted and highlighted.
19 There is, of course, a related sub
20 document that is brought by landowners, whose
21 properties lie downstream of the dams, and those
22 properties also flooded during the storm, and we can
23 look at Defendant's Exhibit 821, which is a broader
24 aerial image that shows all the trial properties
25 upstream and downstream of the two reservoirs.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
34
Trial
1 Those downstream landowners claimed that

2 the United States violated the Fifth Amendment by
3 failing to hold the same Hurricane Harvey floodwaters
4 behind the two dams. We actually expect there to be
5 a disagreement about the law, of course, but there
6 are many facts that really can't be disputed.
7 First, if Hurricane Harvey had not
8 happened, we would not be here today. Hurricane
9 Harvey was a historically large storm, and a lot of
10 homes were going to flood because flooding with a
11 storm of this size is inevitable.
12 Second, this is a zero-sum gain.
13 Keeping the gates at the dams closed may have reduced
14 the flooding in the downstream properties, but it
15 would have increased the flooding on the upstream
16 properties, and keeping the gates open during the
17 storm, would have reduced the flooding on the
18 upstream properties, but it would have increased the
19 flooding on the downstream properties.
20 Third, many properties upstream of the
21 dams flooded because homes were built decades after
22 the reservoirs' construction in areas subject to
23 controlled inundation by the Corps. That is, they
24 are located in areas that would flood in certain
25 large storms as a result of dam operations.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
35
Trial
1 We expect that the parties will also

2 agree on what happened before and during the storm.
3 As we saw in Plaintiffs' opening statement, we expect
4 the Court will see and hear from Plaintiffs',
5 photographs and videos and testimony about the
6 flooded properties, and landowners' reports will
7 describe their experiences during the storm, but we
8 don't expect there to be a lot of disagreement there.
9 When a home is built in an area subject
10 to controlled inundation, the property might flood
11 when a massive storm creates a pool of flood water
12 that cannot be contained within the government
13 boundary lines.
14 The parties should also agree on how the
15 storm progressed. Early on August 23rd, 2017, the
16 President issued a major disaster declaration, which
17 made emergency assistance available and also made
18 individual disaster relief available to homeowners
19 after the rains had stopped. Congress appropriated
20 additional disaster relief under a variety of
21 programs to aid in the recovery of the region,
22 including individual assistance to landowners to help
23 them pay for some repairs.
24 Our briefing discusses the legal reasons
25 why the United States believes Plaintiffs' claims

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
36
Trial
1 fail, including that claim -- first, the claim from a

2 single historically large storm event cannot support
3 a Fifth Amendment takings claim.
4 Second, that the Corps' actions here
5 were an exercise of government power to prevent loss
6 of life and mitigate inevitable damages.
7 And third, Plaintiffs have no
8 compensable property right to be free of floodwaters
9 generated during a hurricane. That conclusion is
10 supported by state law and federal law as well,
11 including the Flood Control Act of 1928, which states
12 that, quote, No liability of any kind shall attach
13 to or rest upon the United States for any damage from
14 or by floods or floodwaters at any point.
15 The facts that the Court will hear over
16 the next several days will support those legal
17 defenses and provide additional reasons why
18 Plaintiffs' claims should be rejected. And rather
19 than rehash the arguments in our brief, what I would
20 like to do now is describe some of the major evidence
21 that we expect the Court to hear.
22 Early in the case, the Court will hear
23 from Mr. Thomas and other Corps employees, as well as
24 County, probably agents -- employees of various
25 County agencies to describe what happened before,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
37
Trial
1 during, and after the storm.

2 Briefly, that evidence will show that
3 when the project was designed and constructed in the
4 1940s, the United States purchased more than enough
5 land upstream of the dams to hold the flood pool that
6 would be created by the largest storm to ever hit the
7 watershed, and you will hear, your Honor, this
8 boundary line referred to as the government-owned
9 land or GOL. The largest storm to ever hit the
10 watersheds by that point was the 1935 storm, which
11 Mr. Charest indicated in one of the documents in his
12 opening, and the Court will hear that 1935 storm
13 discussed in several of the Corps' early engineering
14 documents.
15 As time went forward, changes were made
16 in the original design plans. Some portions of the
17 original design were not built, and as the area below
18 the reservoir developed, gates were installed at the
19 outlet structures on the dams. Even after those
20 changes, though, the United States still owned more
21 than enough land upstream of the reservoirs to hold
22 the flood pool that would be created by the largest
23 storm to ever hit the watershed.
24 Your Honor asked during Plaintiffs'
25 opening, a question about the modifications to the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
38
Trial
1 dams over time. The Court will hear testimony about

2 that. But to be clear, what that evidence will show
3 is that those changes are irrelevant to this case.
4 Nothing about those modifications increased flooding
5 on any trial property during Hurricane Harvey.
6 By the mid-to-late 1970s, however,
7 decades after the government built these reservoirs,
8 the knowledge and science of rainfall patterns had
9 improved, and dam safety and engineering techniques
10 had advanced. With better knowledge about past
11 storms and a better ability to predict future storms,
12 a better understanding of dam safety, the Court
13 issued a new hydrology report in 1977, which
14 significantly changed the hydraulic expectations
15 associated with the reservoir.
16 First, it calculated the inflows into
17 the reservoirs associated with what is known as the
18 standard project flood, or SPF, and the Court will
19 hear that term discussed. What that is, the standard
20 project flood, the most severe flood considered
21 reasonably characteristic of the region, and that
22 1977 report recalculated the inflows associated with
23 that and determined that they were higher than
24 inflows associated with the 1935 storm.
25 And then second, the hydrology report in

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
39
Trial
1 1977 calculated the inflows into the reservoirs

2 associated with what's known as the spillway design
3 flood, or SDF, the largest hypothetical flood for
4 which a dam is designed not to fail. That is -- and
5 they determined that it was far higher than the
6 inflows associated with the design storm that the
7 Corps had used in the 1940s. That new analysis in
8 1977 led to two thin concerns.
9 First, the heightened risk to downstream
10 property owners should the dams fail, and second, a
11 heightened risk to upstream property owners should
12 the dams fill beyond the capacity of the
13 government-owned land.
14 The consequences of downstream or
15 upstream flooding at that point was more acute as
16 compared to the 1940s, when the dams were built,
17 because as Plaintiffs -- as Mr. Charest alluded to in
18 his opening, those areas had developed so extensively
19 over the years. And we're going to look at another
20 graphic from DX600. This is the same report that
21 Mr. Charest mentioned in his report, excuse me, in
22 his opening statement.
23 This is the expert report of Andrew
24 Ickert. And what the project -- what we're seeing
25 here is what the development looked like in 1940.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
40
Trial
1 The colored areas to the right of this graphic,

2 mostly yellow, are depicting what was considered
3 developed in the 1940s, and you can see the two
4 reservoirs, not including much, if any, color. And
5 that's what it looked like in the 1940s.
6 The properties were vacant. They were
7 undeveloped, they were mostly agricultural and
8 grazing tracts. But over the next several decades,
9 the area saw extensive growth and unprecedented
10 development. The developers began to build areas
11 just beyond the government-owned land behind the
12 reservoirs.
13 So that by 2016, we're looking at
14 another graphic from Mr. Ickert's report, from
15 20 -- by 2016, the areas behind the reservoirs had
16 developed extensively, and the areas downstream of
17 the reservoirs had obviously also developed
18 extensively.
19 Those new calculations that the Corps
20 made in the 1970s led the Corps to consider, as part
21 of a public process, different ways to address those
22 two concerns. And eventually in the 1980s, the Corps
23 focused its area on the downstream properties,
24 because a dam failure in this situation would have
25 been catastrophic. It would have risked hundreds of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
41
Trial
1 thousands of homes and structures downstream, and

2 more importantly, it would have put at risk hundreds
3 of thousands of lives of people that lived and worked
4 downstream of the reservoirs.
5 The possibility that Upstream properties
6 might flood during storm events was not a secret,
7 though. One of the documents that Mr. Charest put up
8 was a 1992 report, and that report came out of a 1992
9 storm which nearly filled the reservoirs. It was the
10 new pool of record at the time. All one had to do
11 was look at the reservoirs, and you could see an
12 enormous pool of water covering the normally dry
13 reservoirs during that storm.
14 That water stayed within the
15 government-owned land, but that storm prompted the
16 Corps to publish a reconnaissance report in 1995,
17 which is a public document that explicitly discussed
18 the possibility of flooding on upstream properties as
19 a result of flood pools behind the residences.
20 Harris County Flood Control District which was
21 created in 1937, is the local sponsor for this
22 project and has continued to serve in that role over
23 the decades, published another document in 1996 which
24 also discusses the possibility of an upstream flood.
25 By the 1990s Fort Bend County -- we have

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
42
Trial
1 a couple of properties in Fort Bend County, required

2 written notation of the risk of flooding associated
3 with dam operations in unreported subdivision plats
4 in that county.
5 THE COURT: When was that? When did that
6 occur?
7 MR. SHAPIRO: Your Honor, I'm not sure of the
8 exact date. I do know it is the early 1990s.
9 Some of that testimony, you'll hear from
10 Fort Bend County employees, the testimony about the
11 Corps operations will come largely from the first
12 witness the Court will hear from, Mr. Rob Thomas.
13 Mr. Thomas, as the Court will hear, is
14 the chief of the Corps' Engineering and Construction
15 Division, and also the Dam Safety Officer for the
16 Galveston District.
17 Mr. Thomas is prepared to discuss
18 documents related to the history of this project, and
19 his knowledge of the Corps' reservoir-related actions
20 before and during Hurricane Harvey.
21 The Court will also hear from Colonel
22 Lars Zetterstrom, the Galveston District Manager, and
23 Michael Kauffman, who is a hydraulic engineer with
24 the Galveston District. Colonel Zetterstrom is the
25 lead -- the head of the Galveston Division, or excuse

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
43
Trial
1 me, the Galveston District, and Mr. Culkin was

2 involved in reservoir operations and looking at the
3 Corps' modeling software to assess rainfall patterns
4 during the storm.
5 The Court will also hear from Richard
6 Long, who was a Natural Resource Manager at the
7 reservoirs. He's prepared to discuss his
8 communications with property owners and local
9 governments regarding the project, including public
10 meetings where the Corps discussed possibility of
11 upstream flooding.
12 And then on Wednesday, as the Court
13 knows, we'll be undertaking a site visit. With us on
14 the site visit, we expect to have Captain Chuck
15 Ciliske. He is the project officer/manager at the
16 reservoirs and is very familiar with the structures.
17 From the County, you may hear from Mark
18 Vogler, with Fort Bend County's Drainage District;
19 Jeff Lindner, Harris County Flood Control District's
20 meteorologist; Steve Fitzgerald, the head Chief
21 Engineer with Harris County Flood Control District
22 and Jeff Braun, with Fort Bend County.
23 I want to go through just, if I can,
24 your Honor, briefly, the experts we intend to call.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
44
Trial
1 MR. CHAREST: We intend to call several

2 experts to discuss a variety of issues.
3 Phil Kappel (phonetic) and Dr. Barry
4 Todd prepared an expert report to discuss the
5 extraordinary size and rarity of Hurricane Harvey.
6 Mr. Kappel is the President and Chief Meteorologist
7 of Applied Weather Associates, and Dr. Chyme
8 (phonetic) is the Louisiana State Climatologist and
9 professor of geography and anthropology at LSU.
10 Dr. Rob Nair (phonetic) is a principal
11 engineer with Barrett & Associates. He has more than
12 35 years of experience addressing issues about river
13 and coastal engineering, including using computer
14 models to simulate actual and hypothetical
15 conditions.
16 Dr. Nair and his team prepared a
17 computer simulation or computer model to assess what
18 happens during a storm, and what might have happened
19 under hypothetical conditions, and what his analysis
20 shows is what actually happened during Hurricane
21 Harvey, of what would have happened on the trial
22 properties if the Corps had left the gates open; that
23 was the only option available to the Corps, as it
24 tried to minimize flooding on the trial properties,
25 and that analysis will show that the interior of at

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
45
Trial
1 least five of the trial properties would experienced

2 some flooding;
3 What would have happened if the Corps
4 would have kept the gates closed and that was the
5 only option available to the Corps, if the Corps had
6 tried to minimize the flooding to downstream
7 properties, and their analysis will show that the
8 flooding on the upstream properties would have been
9 far more severe had the Corps done that;
10 And, then finally, what would have
11 happened if we went back in time and removed every
12 government action related to the project, and his
13 analysis will show that the interior of three of the
14 homes would have flooded to lesser extents under that
15 hypothetical.
16 To provide context to those computer
17 modeling results, we may call David Hooper or JP
18 Du Plessis, who prepared scopes of work that is
19 basically a list of repairs which would have been
20 needed inside the trial properties under some of the
21 flood scenarios, Dr. Nair developed. Both are from
22 Madsen Kneppers & Associates, and they have extensive
23 experience preparing scopes of work of that kind.
24 Dr. Jerry Galloway is a professor of
25 engineering with the University of Maryland. He is

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
46
Trial
1 an expert with decades of experience in water

2 resources and flood risk management. He's prepared
3 to testify about the fact that Plaintiffs' properties
4 have always been flood-prone, and there was
5 sufficient public information available to the
6 landowners who knew or could have known that their
7 properties might flood in a storm this size.
8 And then Dr. Craig Landry, a professor
9 of applied economics from the University of Georgia,
10 who prepared an expert report addressing the lack of
11 any pertinent significant market value diminution
12 resulting from the flood.
13 We may also need, depending on how
14 things go, to call additional witnesses from FEMA,
15 USGS and HUD to introduce certain documents and
16 information pertinent to the case.
17 As I mentioned before, we believe that
18 Plaintiffs' claims fail as a matter of law, but
19 should the Court reach the multifactor tests in
20 Artson Beto Fish (phonetic) their claims fail too.
21 And I'll talk very briefly on this
22 point, your Honor: The character of Plaintiffs'
23 land. Plaintiffs' properties have always been
24 subject flooding during large events. Plaintiffs
25 bought their properties decades after this project

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
47
Trial
1 was constructed and those properties are located in

2 areas that are subject to controlled inundation
3 associated with reservoir operations.
4 Severity. Although Hurricane Harvey was
5 a rare, historically large storm, Plaintiffs' expert
6 will testify that the interior of seven of the trial
7 properties experienced less than a foot of water.
8 All the properties were repairable and most have been
9 repaired. While one can certainly sympathize with
10 plaintiffs, the harm was not legally severe because
11 flooding did not fundamentally change the character
12 of the trial properties for residential and
13 commercial uses.
14 Reasonable investment-backed
15 expectations. Enough information existed at the time
16 of Plaintiffs' acquisition that they knew or could
17 have known that their properties might flood in a
18 Hurricane Harvey-like event and duration. Flooding
19 inside the upstream trial property homes lasted from
20 as little as a few days to a few weeks, a duration
21 that is far shorter than any Plaintiffs' ownership
22 interests, and much less than other cases where
23 liability has been found under the Fifth Amendment.
24 In short, your Honor, Hurricane Harvey
25 was a massive storm. Of course, Plaintiffs'

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
48
Trial
1 properties flooded, and that is what happens during

2 massive storms, particularly since their homes are
3 built in an area that has been subject to controlled
4 inundation for the last 70 years, decades before
5 these properties were developed.
6 For those reasons, and for the other
7 reasons discussed in our briefing, the Court should
8 reject Plaintiffs claims and enter judgment in favor
9 of the United States.
10 THE COURT: Thank you, Mr. Shapiro.
12 THE COURT: The Court would like to make a
13 few comments about the nature of the case.
14 Almost everyone in the courtroom
15 undoubtedly is generally familiar with the case.
16 However, as counsel for the Plaintiffs and Defense
17 has said, there are thirteen properties at issue.
18 Those are test properties, and they serve as
19 bellwether properties for the hundreds of properties
20 that are otherwise potentially involved in the case.
21 And those bellwether properties are being tried as
22 examples, basically, and they're being tried as to
23 liability, but not damages.
24 The severity issue comes as a result of
25 a legal precedent in the Supreme Court of the United

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
49
Trial
1 States, Arkansas Game and Fish, because a minor

2 inconvenience to a property is not necessarily
3 compensable by the Fifth Amendment, but a major,
4 severe event that affects a property would be.
5 We are ordinarily sitting from 9:00 in
6 the morning to 5:00 in the evening. Today was a
7 little unusual, we're sitting from 9:30 to 5:30. We
8 plan to take a 15-minute break in the morning, and a
9 15-minute break in the afternoon. We plan to take an
10 hour's break for lunch.
11 We will have a limited amount of time on
12 each side for the receipt of evidence, and it's 32
13 hours a side, and the clerk will keep the time, and
14 the time will be available. We'll try to remember to
15 specify the elapsed time at the close of every day so
16 counsel have an idea of what time is remaining, but
17 counsel at any point may ask what the time involved
18 is at issue.
19 We do have, as counsel have indicated in
20 their opening statements, a schedule for a site visit
21 on Wednesday afternoon. We plan to visit the dams.
22 We also plan to visit each of the individual
23 properties that serve as bellwethers.
24 And with that, I think we're about ready
25 to -- if counsel don't mind, we'll take an early

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
50
Trial
1 break this morning and then hear from Mr. Thomas.

2 Mr. Charest?
3 MR. CHAREST: No objection.
4 THE COURT: All right.
5 Mr. Easterby?
6 MR. EASTERBY: Your Honor, I just wanted to
7 say, if you'd like to have us introduce some of the
8 test properties Plaintiffs, they're here in the
9 courtroom in the front row, or we don't have to do
10 that. I just thought I'd offer that.
11 THE COURT: If you could.
12 Mr. Shapiro, do you mind?
13 MR. SHAPIRO: Not at all, your Honor.
14 THE COURT: Let's hear that.
15 MR. EASTERBY: If you wouldn't mind standing
16 up.
17 THE COURT: You have to be very loud.
18 MR. BANKER: Todd Banker.
19 MR. EASTERBY: Mr. Banker lives behind the
20 Barker reservoir.
21 Please introduce yourself.
22 MR. TURNEY: Bob Turney.
23 I live in Bear Creek.
24 MR. EASTERBY: Mr. Turney lives behind the
25 Addicks reservoir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
51
Trial
1 These are the Girons. They live behind

2 the Barker reservoir.
3 Say hello.
4 MRS. GIRON: Hello, your Honor.
5 MR. EASTERBY: This is Ms. Merna (phonetic),
6 who used to live behind the Addicks reservoir in Bear
7 Creek Village. She sold her house in January of
8 2018.
9 This is Woody Lesikar and his daughter
10 Stacy Lesikar. They are the folks that are out there
11 at the West Houston Airport behind Addicks.
12 And these are Donna and Mitch Stewart,
13 who live behind the Addicks reservoir in Bear Creek
14 Village. And I believe you all live in Twin Lakes
15 behind Addicks?
16 MR. STEWART: Twin Lakes, I hope.
17 MR. EASTERBY: Please introduce yourself.
18 MR. WESTPHAL: My name is David Westphal.
20 MS. STREEBLE: Susan Streeble (phonetic).
21 THE COURT: Say again.
22 MS. STREEBLE: Susan Streeble, we're with the
23 homeowner's association.
24 MR. EASTERBY: Thank you, Judge.
25 This is the lead Plaintiff on the file.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
52
Trial

2 Good morning.
3 All right. You may be seated, please.
4 MR. EASTERBY: Mr. Soares, I didn't see him.
5 Mr. Soares is another Plaintiff.
6 MR. ROSENTHAL: I'm behind the Barker
7 reservoir.
8 THE COURT: And your name is again?
9 MR. ROSENTHAL: Samuel Rosenthal.
10 MR. EASTERBY: He's not a plaintiff. He's a
11 witness.
12 MR. WIND: Kurt and Jean Wind of Twin Lakes.
13 MR. GOLDMAN: I'm Roper Goldman, I'm a victim
14 as well.
15 MR. EASTERBY: Yes, of course.
16 THE COURT: The Court will not remember all
17 of your names, I'm sorry. My memory is not terrible,
18 to use a litany, but it's not that great. We'll do
19 the best we can.
20 We're in recess for 15 minutes.
21 Thank you.
22 (Recess: 10:35 a.m. - 10:37 a.m.)
23 THE COURT: Mr. Easterby, what is your
24 pleasure?
25 MR. EASTERBY: Thank you, your Honor.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
53
Trial
1 Plaintiffs call Mr. Robert Thomas.

2 THE COURT: Mr. Thomas, if you would approach
3 right about there and raise your right hand to be
4 sworn as a witness.
5 Mr. Thomas, do you swear or affirm that
6 the testimony you're about to give this trial shall
7 be the truth, the whole truth, and nothing but the
8 truth, so help you God?
9 THE WITNESS: I do.
11 Please be seated in the witness stand.
12 You may take your water with you. Make
13 yourself as comfortable as possible, and when you get
14 there and are comfortable, please state your full
15 name for the record.
16 THE WITNESS: Robert Charles Thomas, the III.
18 ROBERT CHARLES THOMAS, III,
19 called as a witness herein, having been first duly
20 sworn, was examined and testified as follows:
21 DIRECT EXAMINATION
22 BY MR. EASTERBY:
23 Q. Good morning, Mr. Thomas.
24 Is it correct that you're the Chief
25 Engineer in the Construction Division?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
54
Trial
1 Did I say that correctly?

2 A. No, sir.
3 Q. What's your title?
4 A. It's Chief Engineering and Construction
5 Division, sir.
6 Q. And you've been in that position since
7 October of 2016?
8 A. Yes, sir.
9 Q. So, Mr. Thomas, as I understand it, you're
10 part of the Galveston District of the Corps of
11 Engineers; correct?
12 A. Yes.
13 Q. You're a civilian employee of the Corps; is
14 that right?
15 A. That's right.
16 Q. Within the Galveston District, are you the
17 highest ranking civilian employee?
18 A. No, sir.
19 Q. Who is the highest ranking civilian employee?
20 A. Dr. Edmond Russo.
21 Q. Understood.
22 And prior to you obtaining this
23 position, you previously served as Chief of Water
24 Control in the Galveston District; is that right?
25 A. Two jobs prior; yes, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
55
Trial
1 Q. Chief of water control, 2013 to 2015?

2 A. Yes, sir.
3 Q. And Water Control is the Department within
4 the Galveston District that handles the reservoir
5 operations and regulations of Addicks and Barker,
6 amongst other federal projects; right?
7 A. Yes, sir.
8 Q. So Mr. Thomas, during Harvey, you were
9 actually deployed out there at the Addicks project
10 office; is that right?
11 A. Yes, sir.
12 Q. And was that from August 25th to what? About
13 the 31st?
14 A. I think something like maybe the 10th of
15 September, somewhere around there. Later -- earlier
16 in the month of September.
17 Q. And in your present position you're
18 responsible for dam safety?
19 A. Yes.
20 Q. You're responsible for water control?
21 A. Yes.
22 Q. Anything else besides dam safety and water
23 control that you're responsible for that's pertinent
24 to Addicks and Barker?
25 A. Yes, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
56
Trial
1 Q. And what's that?

2 A. Construction related to the ongoing work, as
3 well as all the design activities and functions.
4 Q. Yes, sir.
5 And in this case, I believe you've been
6 deposed four prior times; is that right?
7 A. I think that's correct, sir.
8 Q. Well, it was three days, but four
9 depositions.
10 And you testified as a designated
11 representative of the United States. Do you remember
12 that?
13 A. Yes, sir.
14 Q. Okay. You've been with the Corps of
15 Engineers since approximately 2010.
16 A. That sounds right, sir.
17 Q. And I believe your education is a bachelor's
18 in maritime system engineering; correct?
19 A. Yes, sir.
20 Q. It would be fair to say that you have some
21 knowledge about hydrology and hydraulics?
22 A. Yes, sir.
23 Q. All right. I'd like to talk to you now about
24 an overview of the government's project in this case;
25 okay?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
57
Trial
1 And what is the government's project in

2 this case?
3 A. The Buffalo Bayou Tributary Project.
4 Q. And what comprises the Buffalo Bayou
5 Tributary's project?
6 A. The Addicks Dam reservoir, the Barker Dam
7 reservoir, and the Improved Channel downstream from
8 the two outlets for about six or seven miles.
9 Q. Okay. Can we transfer control so Matt has
10 access to the monitor?
11 Can you put up that slide from the
12 opening please, Matt?
13 Okay. So Mr. Thomas, as I understand
14 it, this is Addicks over here on the left; correct?
15 A. Correct.
16 Q. Barker's on the right?
17 A. Correct.
18 Q. And the outlet structure for Addicks is where
19 this red dot's pointing on the left side of the
20 slide; is that correct?
21 A. Correct.
22 Q. And then for Barker, the outlet is here on
23 Highway 6; correct?
24 A. Correct.
25 Q. So the Improved Channels you just talked

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
58
Trial
1 about are downstream of those outlet works, and I

2 think they go about 7-1/2 miles; right?
3 A. Yes, sir.
4 Q. But the remainder of Buffalo Bayou that goes
5 from -- well, about 7-1/2 miles from that point all
6 the way to the ship channel has not been improved
7 over all these years; is that correct?
8 A. That's correct.
9 Q. Now, although there are two reservoirs and
10 two dams, it's operated as a single project; correct?
11 A. It's funded as a single project.
12 Q. It's funded as a single project. Okay.
13 You guys refer to it as a single
14 project, don't you?
15 A. Frequently. However, there are two different
16 dams, and we do operate them independently, although
17 they are related.
18 Q. And if you would, I'd like to have you refer
19 to what's been identified as Joint Exhibit 110.
20 Your Honor, may I approach the witness?
21 THE COURT: Yes.
22 Q. BY MR. EASTERBY: Mr. Thomas, Joint Exhibit
23 110, which has also been marked for identification as
24 Plaintiffs' Exhibit 3, is the November 2012 Water
25 Control Manual; is that correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
59
Trial
1 A. Yes, sir.
2 Q. And Mr. Thomas, was that the water control
3 manual that was in effect when Harvey made landfall
4 on or about August 25th of 2017?
5 A. It was.
6 MR. EASTERBY: Your Honor, at this point
7 Plaintiffs would move to admit Joint Exhibit 110,
8 also identified as Plaintiffs' Exhibit 3.
9 MR. SHAPIRO: No objection.
10 THE COURT: Just a moment. I need to find
11 the exhibit.
12 MR. EASTERBY: Your Honor, I think it's in
13 the JX binders.
14 THE COURT: That's what I'm trying to find.
15 MS. TARDIFF: Your Honor, it will be in JX
16 binder number 6.
17 THE COURT: Are they over there?
18 MR. CHAREST: I don't know why, but I
19 will -- I'll skip my trip to the gym.
20 THE COURT: I should have asked the parties
21 to provide the chart of exhibits in advance, but I
22 did not. Could you do that now, please?
23 UNIDENTIFIED SPEAKER: Yes, sir, we will.
24 MR. SHAPIRO: Your Honor, if I could just
25 have a second?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
60
Trial
1 THE COURT: Yes, Mr. Shapiro.

2 MR. SHAPIRO: I think you just grabbed the
3 witness binder.
4 MR. EASTERBY: Oh, did I?
5 MR. SHAPIRO: I think the Judge should have a
6 copy of the JX.
7 THE COURT: Mr. Thomas, do you have a binder
8 in front of you, one that was handed to you by
9 Mr. Easterby?
10 THE WITNESS: I do not, sir.
11 THE COURT: You do not.
12 You need one. Take this one.
13 THE WITNESS: Thank you, sir.
14 MR. EASTERBY: We have the three-column
15 exhibit list which your Honor requested, if I may I
16 approach.
18 MR. EASTERBY: Your Honor, we have the
19 three-column exhibit list which you requested.
20 If I may approach, I could just hand it
21 to you.
22 THE COURT: Yes, certainly, and the clerk.
23 Q. BY MR. EASTERBY: Okay.
24 Mr. Thomas, the water control manual is
25 the document that provides the Corps of Engineers

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
61
Trial
1 with guidance and instructions about how to operate

2 and regulate these two dams and reservoirs; correct?
3 A. Correct.
4 Q. Now this project is owned by the United
5 States Government; right?
6 A. That's right.
7 Q. The Corps of Engineers is the operating and
8 regulating agency for this project; correct?
9 MR. SHAPIRO: Your Honor, I'll object. It's
10 leading.
11 I know we're just doing some preliminary
12 questions, but I do want to state that they called
13 this witness, so there shouldn't be any leading
14 questions.
15 THE COURT: Except that this is an adverse
16 witness to the Plaintiffs.
17 The Court will allow leading questions
18 up to a point, but not extensive leading questions.
19 MR. SHAPIRO: Thank you.
20 THE COURT: I haven't yet addressed the
21 admissibility of the Water Control Manual. I think
22 we have enough of a background and foundation that
23 the Court could admit the document.
24 Do you object, Mr. Shapiro?
25 MR. SHAPIRO: I do not.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
62
Trial
1 THE COURT: Admitted.

2 (Joint Exhibit 110 was received in
3 evidence.)
5 Q. And I don't know if we got an answer to the
6 last question.
7 The Corps of Engineers is the operating
8 and regulating agency for this project; correct?
9 A. It is.
10 Q. And just to be clear, when I refer to "this
11 project" throughout our testimony today, your
12 testimony today, I'm talking about the Addicks dam
13 and reservoirs, the Barker dam and reservoirs, and
14 those 7-1/2 miles of improved channel downstream;
15 understood?
16 A. Understood.
17 Q. And the Corps has sole control over
18 operations, design, construction of the project;
19 right?
20 A. Could you repeat it?
21 Q. The Corps has sole control over the
22 operations, design and construction of the project?
23 A. I'm not sure that's correct.
24 Q. Is there any other entity besides the United
25 States that has control over operations, design,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
63
Trial
1 construction of this project?

2 A. No.
3 Q. The government?
4 A. The government.
5 Q. It's the government's project; right?
6 A. Yes, sir.
7 Q. And it's a flood risk or a flood control
8 project; correct?
9 A. It is a flood risk project.
10 Q. It doesn't serve for navigation or
11 hydroelectric power or anything but flood control;
12 right?
13 A. That's right.
14 Q. Okay. And as you know, this project was
15 authorized through the Buffalo Bayou Tributaries
16 legislation back in 1938; correct?
17 A. I believe so.
18 Q. And Mr. Thomas, if you look at the actual
19 Water Control Manual, I believe if you look at page
20 1-1, which is USACE016305 --
21 If you could zoom in, Matt, to the
22 authorization and purpose and scope portion, please.
23 Thank you.
24 Okay. So Mr. Thomas, number 1, the
25 manual is prepared pursuant to a Corps of Engineers

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
64
Trial
1 regulation called Water Control Management dated

2 1982; right?
3 A. Right.
4 Q. And one of the purposes of that regulation is
5 to ensure that the information in the Water Control
6 Manual is accurate; right?
7 A. Yes, sir.
8 Q. Okay. And then it talks about purpose and
9 scope, and it talks about how in this manual, one of
10 the purposes of the manual is to delineate and
11 describe what is the project here to do; correct?
12 A. Yes, sir.
13 Q. All right. Let's go ahead to page 2-1,
14 please, Matt. It's USACE016308. And just zoom in on
15 the first half of that page, if you would.
16 There we go.
17 Okay. So these two dams are located
18 west of us, what? About 20 miles away?
19 A. Something like that, sir.
20 Q. And the purpose of this flood control project
21 is to provide flood risk management protection to the
22 city of Houston, the ship channel turning basin, and
23 the various structures that are down along Buffalo
24 Bayou, downstream of the outlet works; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
65
Trial
1 Q. So the purpose of the project is to mitigate

2 damaging flood stages downstream of the outlet works;
3 right?
4 A. Correct.
5 Q. It's correct that this project is not
6 operated or designed or built to provide any flood
7 mitigation protection benefits to the upstream
8 individuals that live behind the dams.
9 A. Can you repeat it for me?
10 Q. It is correct that this project is not
11 operated, constructed, or used to provide flood
12 mitigation benefits to the upstream people who live
13 behind the dams.
15 Q. That's correct?
17 Q. Okay. And the manner in which the project
18 goes about effectuating its purpose is to detain
19 water by using those embankments; correct?
20 A. Could you repeat that one, too?
21 Q. The manner in which the project effectuates
22 its purpose is to hold back and detain water runoff
23 that's coming in from three watersheds that are
24 upstream of the dams' embankments; correct?
25 A. Partially.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
66
Trial
1 Q. How else does it effectuate its public

2 purpose other than to hold back water by using the
3 dams' embankments?
4 A. Well, it's also releasing water at a much
5 lower rate than the volume.
6 Q. We'll talk about the gating operations in a
7 bit, but you would agree that it effectuates its
8 purpose by using the embankment walls to hold back
9 runoff from three different watersheds; correct?
10 A. Yes, sir.
11 Q. If you turn ahead in the Water Control Manual
12 to page 7-2, USACE016336.
13 I think it's 7-03 if you would, Matt,
14 pull that out.
15 So the overall plan for water control is
16 to provide maximum downstream flood protection on
17 South Mayde Creek and Buffalo Bayou; correct?
18 A. Correct.
19 Q. And normal system operation is to maintain
20 equal storage capacity for each reservoir; correct?
21 A. Correct.
22 Q. So that's why I asked you earlier about them
23 being operated as a single project. Is that fair? I
24 mean you guys try to balance the capacity within the
25 reservoirs to the extent possible?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
67
Trial
1 A. We do.
2 Q. Okay. And then if you turn the page and go
3 to 7-4 -- Matt, one more -- and look at flood control
4 7-05.
5 It says, (reading:) In keeping with the
6 primary objective of flood control, the general plan
7 for reservoir regulation is to operate the reservoirs
8 in a manner that will utilize to the maximum extent
9 possible the available storage to prevent damaging
10 stages downstream; right?
11 A. Right.
12 Q. And available storage refers to all of the
13 land that's behind the embankments of Addicks and
14 Barker; correct?
15 A. I'm not sure that's correct.
16 Q. Well, Mr. Thomas, the government owns some
17 land behind Addicks and Barker, doesn't it?
18 A. Yeah.
19 Q. And it does not own enough land to hold all
20 the water that can be held back by the embankments,
21 does it?
22 A. It does not.
23 Q. But nonetheless, it is operated, so that it
24 will use all available storage, including land the
25 government does not own, to effectuate its public

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
68
Trial
1 purpose of preventing the occurrence of damaging

2 stages downstream; right?
4 Q. And during the Harvey event, that happened,
5 didn't it?
6 A. It did.
7 Q. Meaning that during Harvey, the government's
8 water that was being held back by these dams occupied
9 something like 7,000 acres of privately owned land.
10 Correct?
11 MR. SHAPIRO: Object to this form of the
12 question.
13 THE COURT: I'm sorry, Mr. Shapiro.
14 MR. SHAPIRO: I object to the form of the
15 question. There is no such thing as government
16 water.
17 THE COURT: That is true, Mr. Easterby.
18 The Court takes your point, but I think
19 the proper characterization would be to just say
20 impounded water.
21 MR. SHAPIRO: Or flood water.
22 THE COURT: Well, impounded.
23 Let's be as neutral as we possibly can.
24 MR. EASTERBY: I'll do my best, your Honor,
25 although I don't feel very neutral about it. But

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
69
Trial
1 understood.
2 Q. Okay. So there are residences and businesses
3 behind the dams, in that area that is subject to
4 maximum impoundment or impoundment that's beyond
5 government-owned land; right?
6 A. Which one?
7 Q. Which one?
8 A. Right.
9 You said maximum impoundment or --
10 What's the other one?
11 Q. There are residences and businesses behind
12 the embankments that are in that area that will hold
13 that impounded water; right?
14 MR. SHAPIRO: I'll object to the form of the
15 question.
16 THE COURT: Mr. Shapiro, your objection is of
17 what nature?
18 MR. SHAPIRO: It's a vague question. I'm not
19 sure what he's trying to ask.
20 THE COURT: Well, Mr. Thomas, you may answer
21 the question if you can understand it.
22 THE WITNESS: I was going to ask again, your
23 Honor. I'm not sure which water he meant.
24 Q. BY MR. EASTERBY: Okay. I'll tell you what,
25 Mr. Thomas. Let's do it this way: I will try to

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
70
Trial
1 locate for you Plaintiffs' Exhibit 4, which is Joint

2 Exhibit 94.
3 Okay. Plaintiffs's Exhibit 4 and Joint
4 Exhibit 94 is a February 2010 Addicks and Barker
5 Upstream Meeting Summary Report; correct?
6 A. Correct.
7 Q. And you recall that we discussed this during
8 your deposition at some length; correct, Mr. Thomas?
9 A. Maybe. It was a long time ago, sir.
10 Q. Well, we did.
11 MR. EASTERBY: Your Honor, we would move to
12 admit Joint Exhibit 94 into evidence.
13 THE COURT: The Court views this as being a
14 proper exhibit, except that you haven't established
15 the foundation through Mr. Thomas yet.
16 MR. EASTERBY: Sure.
17 Q. So Mr. Thomas, this is a document that was
18 generated by the Corps of Engineers; correct?
19 A. Yes, sir.
20 Q. And the purpose of it was to put together a
21 meeting summary report; right?
22 A. Yes, sir.
23 Q. And if you would turn to me -- turn with me
24 towards the very end of the exhibit, USACE594485. It
25 's a -- I think it's a brochure that says "What are

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
71
Trial
1 we doing now?"
2 A. Got it.
3 Q. And Matt, if you could --
4 THE COURT: Just let me find it.
5 MR. EASTERBY: Yes, sir.
6 THE COURT: What was the number again? The
7 page number?
8 MR. EASTERBY: It is USACE594485, and it may
9 be the fourth page from the end.
10 MR. SHAPIRO: Your Honor, if I could, there's
11 two Bates numbers on this.
12 THE COURT: No, I understand. I'm just
13 trying to find 485.
14 The USACE numbers are off to the side.
15 I'm just getting used to the exhibits.
17 And if I may, I can just kind of hold up
18 the page that --
19 THE COURT: I don't have it.
20 MR. EASTERBY: Understood.
21 Q. There we go.
22 And Mr. Thomas, this is a brochure that
23 the Corps of Engineers disseminated to the public;
24 correct?
25 A. I believe so.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
72
Trial
1 Q. Okay. Actually, Matt, go back out and show

2 me the Addicks and Barker reservoir map.
3 All right. So Mr. Thomas, my question
4 was, the areas that are here behind Addicks, and this
5 area up here, which is Lakes on Eldridge, Twin Lakes,
6 Bear Creek Village, West Houston Airport.
7 And moving into Barker, we have these
8 areas: We have Kelly Wood. We have Siko (phonetic)
9 Ranch. We have Canyon Gate.
10 Those are the areas that will be
11 impounded or submerged by the runoff that's being
12 held back from these dams if the pool gets to a
13 certain height; correct?
14 A. So different places are submerged at
15 different pool levels.
16 Q. And some of those different places are
17 residences; correct?
18 A. In some cases.
19 Q. Mr. Thomas, during Harvey, isn't it true that
20 the runoff that was impounded by the dams inundated
21 and submerged over 10,000 residences?
22 A. I don't have the number in my mind.
23 Q. You don't know that?
24 A. I don't know the number.
25 Q. Okay. Well, we'll come back to that, because

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
73
Trial
1 I think there is an exhibit later on that gives us a

2 pretty precise number.
3 THE COURT: Mr. Easterby, will you deal with
4 the admissibility of Joint Exhibit 94?
5 MR. EASTERBY: Oh, sure.
6 Well, your Honor, I would move to admit
7 it. It is a document prepared by the Corps of
8 Engineers. It's germane to the issues in this case
9 inasmuch as it pertains to public notice, and it
10 provides, as we show right here, a description of the
11 project.
13 Mr. Shapiro.
14 MR. SHAPIRO: If I could just ask a few
15 questions about it, your Honor.
16 We have no objection to it, but just to
17 put this document into context.
18 THE COURT: I'll allow you to do that on
19 cross-examination, Mr. Shapiro.
20 MR. SHAPIRO: Great.
21 THE COURT: I have a question actually I
22 would like answered as well from Mr. Thomas' prior
23 testimony, but I'm not going to ask it now, but I've
24 just got to note what it is, and that is the balance
25 between the pools in Addicks and Barker and how that

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
74
Trial
1 occurs, because as the Court understands it, these

2 are separate watersheds.
3 We'll just reserve that.
4 Q. BY MR. CHAREST: Okay. Matt, show me the
5 glossary of terms, please, on that same page.
6 THE COURT: But the document is admitted.
8 evidence.)
10 Q. A little bit hard to read, so maybe it's best
11 to go off of what you're looking at in front of you,
12 but under dam, it says that a dam is an engineered
13 structure across a river, stream, bayou, intended to
14 control the flow of water downstream; correct?
15 A. Yes, sir.
16 Q. And in the case of Addicks and Barker, the
17 structures were built to hold back and control water
18 runoff from the upper Buffalo Bayou watershed;
19 correct?
20 A. Correct.
21 Q. And then under that it's got reservoir. A
22 natural artificial place where that water, that
23 impounded water, is collected and stored; correct?
24 A. Correct.
25 Q. It talks then about watershed, area of land

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
75
Trial
1 that is drained by a river, stream or bayou and its

2 tributaries; correct?
3 A. Correct.
4 Q. And then it has on the right-hand side
5 runoff. Rainwater that cannot be absorbed into the
6 ground for various reasons; correct?
7 A. Correct.
8 Q. So the purpose of this project is to hold
9 back all the runoff that's draining down into the
10 location where these dams are from three watersheds;
11 right?
12 A. Say it again?
13 Q. The purpose of this project is to hold back
14 runoff that is draining down three watersheds;
15 correct?
16 A. No, sir.
17 Q. No?
18 A. No, sir.
19 Q. Barker watershed?
20 A. Yes, sir.
21 Q. Addicks watershed?
22 A. Yes, sir.
23 Q. Portion of Cypress Creek watershed?
24 A. Yes, sir.
25 Q. That's three?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
76
Trial
1 A. Yes, sir.
2 Q. So what did I miss?
3 A. It's not the purpose of the project. The
4 purpose of the project is not to hold water, sir.
5 Q. The purpose of that project is not to hold
6 back runoff from those watersheds for the purposes of
7 preventing damaging flood stages downstream?
8 A. That part's the purpose, sir.
9 Q. Yeah. I mean, it protects downstream by
10 holding back that runoff; right?
11 A. Right.
12 Q. Okay. Let's talk about these watersheds.
13 I've put up here as a demonstrative, a
14 Harris County Flood Control District image of the
15 Barker reservoir watershed; correct?
16 A. That looks to be.
17 Q. And I believe the Water Control Manual talks
18 about that watershed, does it not?
19 A. It does.
20 Q. I believe it's under the pertinent data page
21 of the Water Control Manual, which is USACEO16304.
22 And it indicates that for Barker, it's 130 square
23 miles; right?
24 A. Can you say it again, sir?
25 Q. For Barker, the area size of the watershed is

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
77
Trial
1 130 square miles as per the Water Control Manual;

2 correct?
3 A. Correct.
4 Q. So that means that the embankments here
5 (indicating) are going to hold back all the runoff
6 that comes down this watershed into Barker; right?
7 A. Not completely.
8 Q. Well, all the water that makes it down there,
9 it holds it back, doesn't it?
10 A. Minus what's released and what's detained
11 downstream and what evaporates and so on.
12 Q. Understood.
13 Well, I mean, runoff is water that's not
14 absorbed, that's not evaporating. It's the water
15 that actually makes it downstream; right?
16 A. Right.
17 Q. Okay. And you can see that there are some
18 incoming tributaries in the Barker watershed; right?
19 A. Right.
20 Q. You see this one here? It's Mason Creek,
21 which is kind of in the middle; correct?
22 A. Correct.
23 Q. You've got upper Buffalo Bayou here; correct?
24 A. Correct.
25 Q. There's actually one that's not depicted

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
78
Trial
1 called the Willow Fork Diversion Channel. You're

2 familiar with that, aren't you, Mr. Thomas?
3 A. I am.
4 Q. Okay. And then with regard to Addicks, per
5 the Water Control Manual, its area and square miles
6 is 136; is that right?
7 A. That's right.
8 Q. And it also has a number of incoming
9 tributaries; right?
10 A. Right.
11 Q. You've got South Mayde Creek down here at the
12 bottom; right?
13 A. Right.
14 Q. Bear Creek?
15 A. Right.
16 Q. Lion (phonetic) Creek?
17 A. Lion Creek.
18 Q. Horse Bend Creek, and I believe there is one
19 called Turkey Creek that's over here that's maybe not
20 shown on this map.
21 Are you familiar with Turkey Creek?
22 A. Yes.
23 Q. And as with Barker, those embankments are
24 there to hold back all the runoff that comes
25 downstream that makes it into the Addicks reservoir

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
79
Trial
1 area; right?
2 A. With the same discussion we had earlier.
3 Q. About releases, to the extent there are
4 releases.
5 A. Right, as well as any Upstream detention.
6 Q. Upstream detention, understood.
7 Now let's talk about Cypress Creek.
8 So, Cypress Creek is a separate
9 watershed; is that correct, Mr. Thomas?
11 Q. But under certain conditions, some of its
12 runoff will cross the divide into the Addicks
13 reservoir watershed, and come down into the Addicks
14 dam area; correct?
15 A. It can.
16 Q. It can.
17 It did during Harvey, didn't it?
18 A. It did.
19 Q. It did during tax day, didn't it?
20 A. It did.
21 Q. And the Corps of Engineers has known that the
22 Cypress Creek watershed will come into the Addicks
23 watershed since at least 1966; right?
24 A. Under certain conditions.
25 Q. Under certain conditions, meaning you have to

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
80
Trial
1 have enough runoff to be able to cross that divide;

2 is that right?
3 A. That's right.
4 Q. As I understand it, this is 290 right here.
5 That's kind of the boundary that is the line of
6 demarcation for the Cypress Creek watershed that can
7 come into Addicks. Is that your understanding, too?
8 A. Yes, sir.
9 Q. So the Addicks watershed, the Barker
10 watershed, and the portion of Cypress Creek watershed
11 we talked about are referred to as the Upper Buffalo
12 Bayou watershed in the Corps of Engineers
13 documentation; correct?
14 A. Correct.
15 Q. So all told, that's almost 500 square miles
16 of watershed that drains down into the government's
17 project.
18 A. I forget how many miles are inside the street
19 there.
20 Q. And by the way, I did put a calculator in
21 front of you today just in case --
22 A. Thank you.
23 Q. -- you might need it.
24 Okay. Let's talk really quickly about
25 the elevations in this area.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
81
Trial
1 So right outside the courthouse, I think

2 the elevation is something like 47 feet, but if you
3 look at this map, it shows the elevations going up,
4 and as you go way up here (indicating) to this far
5 reach, you're at something like 310 feet; correct?
6 A. Correct.
7 Q. As you move into the area that's closer to
8 the government's project, you're in ranges of maybe
9 90 to 110 feet; right?
10 A. Generally.
11 Q. And the elevation of the outlet works, the
12 bottom elevation is 67-1/2 feet for Addicks; correct?
13 A. Correct.
14 Q. 70.2 for Barker; correct?
15 A. Correct.
16 Q. So in simple terms, if you're walking
17 northwest, you're walking uphill; right?
18 A. That's right.
19 Q. If you're walking southeast, you're walking
20 downhill; right?
21 A. That's right.
22 Q. So this whole area naturally drains
23 downstream, funneling into Buffalo Bayou, which winds
24 its way down and goes to the Houston ship channel;
25 right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
82
Trial
1 A. Right.
2 Q. And the dams were put there in that specific
3 place to hold back and detain all that runoff using
4 those embankments; correct?
5 A. Well, with the caveats we discussed earlier.
6 Q. And let's make sure we get clear on these
7 caveats. You got the outlet gates.
8 What's the other caveat?
9 A. The purpose isn't to detain water. The
10 purpose is to reduce the rate of discharge into in
11 the Buffalo Bayou.
12 Q. By holding back runoff?
13 A. Right.
14 Q. Okay.
15 A. And releasing it at a slower rate.
16 Q. Right.
17 So the current operating policy for the
18 Corps of Engineers is if any significant kind of
19 weather is forecast, close the gates; right?
20 A. Essentially.
21 Q. And those outlet works are all in about how
22 wide? Fifty feet?
23 A. Approximately.
24 Q. Well, in the pertinent data, it says there is
25 five gated concrete box culvert conduits, 8 feet

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
83
Trial
1 wide. So 8 times 5 is 40?

2 A. Forty.
3 Q. The total length of the embankments in
4 Addicks is 61,166 feet. Do you see that?
5 A. Yes, sir.
6 Q. That's 11.65 miles; right?
7 So those gates are a tiny fraction of
8 the total amount of embankments there to hold back
9 that runoff; correct?
10 A. They are a small fraction.
11 Q. Yes, and the Barker embankments are 71,900
12 feet; correct?
13 A. Correct.
14 Q. 13.69 miles?
15 A. Yeah, that sounds correct.
16 Q. Well, it's on the pertinent data sheet.
17 A. Right.
18 Q. So, I mean, if it's in the Water Control
19 Manual, that means it's right; right?
20 A. Generally.
21 Q. There's mistakes in the Water Control Manual?
22 A. There may be some occasional typos in the
23 Water Control Manual.
24 Q. Okay. Well, if you see any today, please
25 call them out.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
84
Trial
1 A. Okay.
2 Q. And it looks like the Barker outlets have
3 five that are 9-feet wide, so that's 45 feet of the
4 71,900 feet; correct?
5 A. Correct.
6 Q. So gates open, gates closed, the embankments
7 are going to hold back that runoff irrespective;
8 right?
10 question as vague.
11 THE COURT: There is an ambiguity in the
12 question.
13 The Court will sustain it.
14 Ask the question in a different way,
15 please, Mr. Easterby.
16 MR. EASTERBY: Happy to do it, Judge.
17 Q. Mr. Thomas, it's true that the operation of
18 the gates is not going to prevent the majority of the
19 holding back of the runoff from the Upper Buffalo
20 Bayou watershed; correct?
21 A. It depends.
22 Q. It depends?
23 A. It depends.
24 Q. All right. We'll circle back on "it
25 depends."

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
85
Trial
1 Now, look with me back again at

2 Plaintiffs' Exhibit 4, which was that public meeting
3 summary, if you would.
4 Go with me to that page that had the
5 Addicks and Barker reservoir map, please, Matt. And
6 zoom in the bottom portion if you would.
7 A. I put my book away.
8 Q. I'm sorry.
9 What now?
10 A. I put my book away.
11 Q. Okay. Well, we can -- you have a monitor
12 right in front of you, too, Mr. Thomas.
13 Do you see this project boundary line
14 right here on the legend?
15 A. I do.
16 Q. And it's a red line, isn't it?
17 A. Well, on my screen it looks black.
18 Q. Okay. Black, red, whatever.
19 But it correlates to this line that goes
20 around the Addicks reservoir and also the Barker
21 reservoir; correct?
22 A. Correct.
23 Q. And those are the limits of government-owned
24 land; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
86
Trial
1 Q. And it's called a project boundary in this

2 map that was provided to the public; correct?
3 A. It is.
4 Q. But there's no boundary there in reality.
5 There is not a berm or raised earth or anything
6 separating the government-owned land from the
7 privately-owned land that's adjacent to it; correct?
8 A. Can you say it again?
9 Q. Mr. Thomas, the back end of the reservoirs,
10 there's no embankments between the government-owned
11 land and the private land. There is no raised earth
12 to keep the water in. It's just a smooth transition,
13 isn't it?
14 A. It is.
15 Q. Okay. It says, "project boundary," but is
16 that really accurate in terms of where the water can
17 be impounded by the federal project?
18 A. I think the term is accurate.
19 Q. You think it's accurate to alert people as to
20 where the water can be impounded?
21 A. No.
22 Q. No.
23 I mean, if you look at project boundary,
24 it stops here at government-owned land; right?
25 A. It does.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
87
Trial
1 Q. It doesn't say anything about the water that

2 may go into these neighborhoods behind the dams, does
3 it?
4 A. It does not.
5 Q. And this is the public meeting summary, isn't
6 it?
7 A. It is.
8 Q. So was the purpose of this document to inform
9 the public of the potential risks of being impounded
10 by or submerged by the water that's impounded by this
11 project?
12 MR. SHAPIRO: I'll object; it's vague.
13 I'm not sure if he means the particular
14 document we're looking at or this entire -- this
15 entire document.
16 THE COURT: That objection is overruled.
17 The context of the prior examination and
18 the answers provides the appropriate foundation.
19 THE WITNESS: I need my document back,
20 please.
21 MR. EASTERBY: He needs his document back.
22 Where did it go?
23 Q. Okay. Mr. Thomas, this is the upstream
24 meeting summary report dated February 2010; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
88
Trial
1 Q. I thought I heard in the government lawyer's

2 opening statement some reference to the Corps of
3 Engineers alerted the public to this risk of being
4 submerged by inundated water that's being held back
5 by these two dams. Did you hear that, too?
6 A. I'm sorry.
7 Can I read this, please?
8 Q. You're reading about the two meetings,
9 Mr. Thomas?
10 A. I am. It's been a long time since I've seen
11 this so I want to make sure I know what the intent
12 was when they did it.
13 Q. Sure, we're on USACE594370. It talks about a
14 public meeting, February 24th, 2010, at Mayde Creek
15 Junior High School. Seventy-three people attended;
16 right?
17 A. Right.
18 Q. And then if you flip to the next page, there
19 was a February 25th, 2010, meeting at Harrison
20 Elementary School. Seventy people attended; right?
21 A. Right.
22 Q. And was the purpose of those meetings to
23 inform the public of the risk of being submerged by
24 water that's being held back by the government's
25 project?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
89
Trial
1 A. If they did discuss that at those meetings.

2 Q. Was that the purpose?
3 A. I think it says here that the primary
4 objective of the meetings was to inform the public of
5 the USACE, which is the abbreviation for US Army
6 Corps of Engineers, just USACE, National Dam Safety
7 Program, and its goal to maintain public safety by
8 ensuring that the Addicks and Barker dams are safe
9 and risks to the regional public are minimized.
10 Q. Right.
11 So the Addicks and Barker dams were
12 classified as a DSAC-1; right?
13 A. Right.
14 Q. I don't know remember what DSAC stands for,
15 but I bet you do.
16 What does DSAC stand for?
17 A. It's Dam Safety Action Classification.
18 Q. And level one is the worst level you can
19 have; right?
20 A. It is the highest risk.
21 Q. Highest risk.
22 And the risk that that's talking about
23 is the risk of a potential dam failure where all that
24 impounded water goes racing down Buffalo Bayou
25 through the City of Houston and massive destruction

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
90
Trial
1 ensues; correct?
2 A. That is one of the risks and a primary risk.
3 Q. Primary risk.
4 As you said earlier, the government does
5 not operate or use these two -- these two dams to
6 provide any flood mitigation benefits to the upstream
7 areas; right?
8 A. Right.
9 Q. So the entire point of the operation of this
10 dam is to use all the capacity upstream to prevent
11 damaging flood stages downstream; right?
12 A. What do you mean by all the capacity?
13 Q. Well, I mean, Mr. Thomas, you've got these
14 embankments that we just talked about that are, all
15 in, something like 25 miles long; right?
16 A. Right.
17 Q. As somebody that has education and training
18 in hydrology, you know that if you build a dam, it's
19 going to create a reservoir behind it; right?
20 A. Right.
21 Q. It's just a function of the engineering or
22 the physics or hydrology or whatever you want to call
23 it; right?
24 A. Okay.
25 Q. Yes?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
91
Trial
1 A. Well, maybe.
2 I'm not sure "whatever you want to call
3 it" is.
4 Q. What would you call it?
5 A. I'm not sure. I'm a little confused on that
6 one.
7 Q. The government built two dams that have miles
8 and miles of embankments; right?
9 A. We did.
10 Q. It's there to hold back runoff from the three
11 watersheds; right?
12 A. It is there to reduce flood risk, as we
13 talked about.
14 Q. And as that water rises, it's going to rise
15 into a certain area that's informed by the length of
16 the embankments and the height of the embankments;
17 right?
18 A. Right.
19 Q. So all available storage is that area, isn't
20 it?
21 A. Can you ask the question again?
22 Q. Mr. Thomas, a simple question. I mean, when
23 you build a dam, it's going to create a reservoir
24 behind it; right?
25 A. Right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
92
Trial
1 Q. And that's a function of the length of the

2 embankments, the height of the embankments; right?
3 A. Right.
4 Q. And that's the available storage; right?
5 It's not a trick question.
6 A. What do you mean by -- what's the purpose of
7 the available storage? I think that's confusing.
8 Q. I thought we cleared that up, but I'd be
9 happy to do it again.
10 The purpose of that storage is to detain
11 all that runoff to prevent damaging flood stages
12 downstream; right?
13 A. Right.
14 Q. Okay.
15 A. I mean what's the purpose -- I'm confused
16 about -- what are you using the storage for?
17 Q. I'm not using the storage for anything.
18 The government uses the storage to
19 effectuate the public purpose of protecting downtown
20 Houston, the ship channel and downstream; right?
21 A. Okay.
22 Q. I don't understand the confusion.
23 A. Okay.
24 Q. You have a dam. There's a reservoir behind
25 it; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
93
Trial
1 A. Correct.
2 Q. The government owns some of the land in that
3 reservoir; yes?
4 A. Right.
5 Q. But it doesn't own enough to hold the water
6 associated with maximum impoundment, does it?
7 A. So which -- what do you mean? What is the
8 maximum impoundment? How do you define that?
9 Q. Why don't you tell me.
10 MR. SHAPIRO: Well, I'll object.
11 I mean, it's a compound question.
12 THE COURT: All right, Mr. Thomas.
13 The Court will sustain the objection.
14 But why don't you just ask,
15 Mr. Easterby, what is -- if you were to define
16 maximum impoundment or do you define maximum
17 impoundment, what is it?
18 Q. BY MR. EASTERBY: How do you define maximum
19 impoundment, Mr. Thomas?
20 A. I don't know that I do.
21 Q. The Corps of Engineers does not define
22 maximum impoundment for these two dams?
23 A. I'm not sure that's a term you would find in
24 our documents. We would be able to look and see.
25 Q. Well, we'll see about that.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
94
Trial
1 Let's do it this way: Go back to the

2 pertinent data table in the Water Control Manual, if
3 you would.
4 A. (Witness complies.)
5 Q. Do you see the natural ground at end of dam
6 for Addicks being at 108 feet?
7 A. Yes, sir.
8 Q. And I believe that's North American Vertical
9 Data, 1988, Epoch 2001; right?
10 A. Right.
11 Q. I think that's a datum. I don't pretend to
12 understand them, but I just do that for the record.
13 So natural ground at the end of the dam
14 is the area where the embankments ends, and then
15 there's just natural ground; right?
16 A. Correct.
17 Q. Now, the auxiliary spillways at the ends of
18 the dams -- you know what those are; right?
19 A. Yes.
20 Q. They are topped with roller-compacted
21 concrete; correct?
22 A. Yes, sir.
23 Q. Those elevations are a bit higher than the
24 natural ground; yes?
25 A. Yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
95
Trial
1 Q. But returning to the pertinent data table, it

2 says, For natural ground at the end of dam, 108 feet,
3 that Addicks can store 199,643 acre-feet of that
4 impounded runoff; correct?
5 A. It does.
6 Q. Is that maximum impoundment?
7 A. That's the amount counted at 108 feet.
8 Q. Can the dam -- can Addicks store more than
9 that?
10 A. It can.
11 Q. Sure, it can.
12 And isn't it correct the Corps of
13 Engineers has calculated how much Addicks can store?
14 A. Yes, sir.
15 Q. And wouldn't that be maximum impoundment?
16 A. Only if you're defining it that way.
17 Q. Well, it's not important how I define it.
18 It's important how the Corps defines it.
19 Are you telling me the Corps has never
20 defined maximum impoundment for these two reservoirs
21 in their 70-plus years of operation and use?
22 A. I think we use different terms than that.
23 Q. Okay. Well, what term does the Corps
24 presently use for "it's totally full and it can't
25 hold any more"?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
96
Trial
1 A. I think if you read in here, you will see a

2 hundred percent -- I think that one of these tables,
3 it shows the ends of the dams at 100 percent.
4 Q. Okay. I'll tell you what. Let's go to the
5 back of the Water Control Manual.
6 I think there's a little bit better
7 table. It's USACE016402.
9 Q. Okay. And this is a description of the
10 reservoirs; correct?
11 A. Yes, sir.
12 Q. So we see here that the limits of
13 government-owned land in Addicks are at 103 feet in
14 ABDADA; correct?
15 A. Correct.
16 Q. Surface area is 13,016 acres; correct?
17 A. Correct.
18 Q. And then for Barker, the limits of
19 government-owned land are at 95 feet; right?
20 A. Correct.
21 Q. Surface acres, 12,036; correct?
22 A. Correct.
23 Q. So when the government acquired the property
24 for these reservoirs back in the '40s, since that
25 time, they had not acquired any additional real

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
97
Trial
1 estate behind the dams; true?

2 A. True.
3 Q. So these two acreage numbers we see here, the
4 13,016, the 12,036, those are surface acres; right?
5 A. Yes, sir.
6 Q. Meaning that if the water is in the
7 reservoirs, that's the area they'd occupy.
8 A. Right.
9 Q. All right. And then we see standards project
10 floods. What's a standard project flood, Mr. Thomas?
11 A. It is a hypothetical flood that we use to
12 describe a flood that might be the worst flood you
13 could see that's reasonably characteristic of the
14 summary.
15 Q. Let's see. Let me get to my notes here.
16 Standard project flood is an event
17 that's generally expected to occur; correct?
18 A. Hold on.
19 Q. That's what you said in your deposition.
20 So that standard project flood is also
21 used by the Corps of Engineers as the basis for real
22 estate acquisition in some instances; right?
23 A. Yes, sir.
24 Q. Meaning, if you're going to design a dam, you
25 ought to buy enough land to be able to hold the water

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
98
Trial
1 associated with a standard project flood at least;

2 right?
3 A. In some instances.
4 Q. In some instances. Okay.
5 Here, we see that a standard project
6 flood at Addicks is 107.6 feet; correct?
7 A. Correct.
8 Q. And that's 15,886 surface acres; right?
9 A. Correct.
10 Q. The Barker standard project flood is 98.3
11 feet, 13,412 acres; correct?
12 A. Correct.
13 Q. So I believe that means that for the standard
14 project flood, that flood that's generally expected
15 to occur, this project's going to have to make use of
16 something like 4200 acres of privately-owned land
17 that's adjacent to the government-owned land;
18 correct?
19 A. What did you say?
20 Q. I said 4200. I think it's a little bit more
21 than that. I wrote down 4,246.
22 Did you get the same number?
23 A. Yes, sir.
24 Q. Good deal.
25 So for this hypothetical event that's

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
99
Trial
1 reasonably expected to occur, the government's

2 project is necessarily going to occupy 4,246 acres of
3 privately-owned land adjacent to the government-owned
4 land; correct?
5 A. Yes, sir.
6 Q. And, indeed, the Water Control Manual's
7 policy is to use all available storage, which
8 includes those roughly 4200 acres of privately-owned
9 land for the purpose of protecting downtown Houston;
10 right?
11 A. Can you repeat it?
12 Q. Sure, I'll be happy to.
13 The Water Control Manual states that the
14 Corps, the government, will use all available storage
15 to impound water to protect downtown Houston. That's
16 the public purpose; correct?
17 A. Correct.
18 Q. And that available storage includes these
19 areas (indicating) that are well beyond
20 government-owned land, and for the standard project
21 flood, that's roughly 4200 acres of land the
22 government does not own that it will occupy and
23 invade with this impounded runoff to effectuate its
24 public purpose; right?
25 A. I'm not sure it says invade in the Water

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
100
Trial
1 Control Manual.
2 Q. Mr. Thomas, the embankments hold back the
3 water; right?
4 A. They do.
5 Q. The Corps knows where the water is going to
6 go at certain elevations, doesn't it?
7 A. Yes, sir.
8 Q. And it knows it's going to go into peoples'
9 homes at certain elevations, doesn't it?
10 A. Yes, sir.
11 Q. In fact, the Corps of Engineers in the early
12 2000s, had a private contractor go out and do first
13 floor elevation surveys for over 10,000 structures in
14 the area that's subject to being submerged by that
15 impounded runoff; correct?
16 A. Correct.
17 Q. You literally had the addresses, the names,
18 the elevations of all those people; correct?
19 A. Correct.
20 Q. And it's correct that the government never
21 sent a letter or a notice of any kind to those people
22 saying, Hey, guys, by the way, you're in an area that
23 we may occupy with the water that we're holding back
24 with our project.
25 That never happened, did it?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
101
Trial
1 MR. SHAPIRO: I'll object.

2 I'm not sure this is the correct witness
3 to answer that question. There is a lack of
4 foundation.
6 Mr. Thomas, you may answer if you know
7 the answer to this question.
8 THE WITNESS: I'm not sure it's correct.
9 Q. BY MR. EASTERBY: You're saying the
10 government did send out notice to these people?
11 A. I don't know what notice was sent. I don't
12 know of a notice, but there were public notices.
13 Q. Like Exhibit 4 we looked at; right? Those
14 two meetings?
15 A. Right.
16 Q. 143 people showed up?
17 A. (Witness nods.)
18 Q. Yes?
19 A. Yes, sir.
20 Q. And notwithstanding the fact that the
21 government had the names, addresses, elevations of
22 over 10,000 residents behind the dams, it didn't send
23 any letters to those folks, though, that you're aware
24 of, did they?
25 MR. SHAPIRO: Objection.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
102
Trial
1 Well, I'll withdraw the objection.

2 THE COURT: Mr. Thomas, you may answer of
3 your own personal knowledge.
4 THE WITNESS: I don't have personal knowledge
5 of that, sir.
6 Q. BY MR. EASTERBY: Okay. Let's talk about the
7 gate operations of the federal project.
8 So in the Water Control Manual, it's
9 page 7-4. It's USACE016338 Normal Flood Control
10 Regulation. And it says in subpart 2, "The gates on
11 both reservoirs will be closed when one inch of
12 rainfall occurs over the watershed below the
13 reservoirs in 24 hours or less or when flooding is
14 predicted downstream"; correct?
15 A. Correct.
16 Q. And that's because the purpose is to protect
17 downstream, so you want to close those gates and make
18 sure you're not adding any more water into the lower
19 Buffalo Bayou watershed; correct?
20 A. Correct.
21 Q. And I believe the current operating policy is
22 to keep the gates closed until a gauging station on
23 Tiny Point Road, which is maybe 12 miles east of the
24 outlet works, is reading less than 2,000 cubic feet
25 per second; is that right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
103
Trial
1 A. That's right.
2 Q. All right. And there are instances where the
3 Water Control Manual prescribes induced surcharges;
4 correct?
5 A. Correct.
6 Q. And what is an induced surcharge?
7 A. It's, in this case, it's a release made to
8 optimize the available storage and protect the
9 integrity of the dams.
10 Q. To optimize the available storage and protect
11 the integrity of the dams; right?
12 A. Right.
13 Q. So these induced surcharges are done when the
14 reservoir pools rise to certain elevations at certain
15 rates of rise; correct?
16 A. Correct. So once they reach a certain
17 elevation, we'll follow the schedule in the back
18 based on the elevation rate of run.
19 Q. And during the Harvey event there were
20 induced surcharges; correct?
21 A. There were.
22 Q. I think those commenced in the early morning
23 hours of Monday, August 28th, 2017.
24 A. Yes.
25 Q. And doing that was standard operating

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
104
Trial
1 procedure pursuant to the Water Control Manual;

2 right?
3 A. Yes, sir.
4 Q. To free up available -- free up more
5 available storage; yes?
6 A. Yes.
7 Q. And protect the integrity of the government's
8 structures.
9 A. Correct.
10 Q. It's not done to help out the upstream folks,
11 is it?
12 A. That is not the purpose.
13 Q. Not the purpose. Okay.
14 Okay. So getting back to the Water
15 Control Manual, let's look again at the reservoir
16 description that's USACE016402. It's page A-2
17 towards the end.
18 Just zoom that in if you would for me,
19 Matt.
20 I see there's an entry here for a
21 100-year flood. Do you see that, Mr. Thomas?
22 A. Yes, sir.
23 Q. And what does a 100-year flood mean?
24 A. So this relates to a flood that has a one in
25 100 chance of occurrence every year.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
105
Trial
1 Q. Annual recurrence, 1 percent; right?

2 A. Right.
3 Q. And this is, I think, intending to say that
4 if there is a 100-year rain event, that will generate
5 a pool in Addicks of 100.3 feet; correct?
6 A. No, sir.
7 Q. Well, what does it mean?
8 A. So I think these were determined using
9 observations of water levels, and so it's really for
10 the pool level, instead of a model runoff for
11 rainfall.
12 Q. Okay. A hundred year for Barker says 97
13 feet; correct?
14 A. Yes, sir.
15 Q. Limits of government-owned land, Barker 95
16 feet; yes?
17 A. Yes.
18 Q. So does that mean in Barker that the
19 government-owned land is not adequate to even contain
20 a pool associated with a 100-year event?
21 A. Yes, sir.
22 Q. Okay. Just to make sure we're on the same
23 page, the Barker reservoir, government-owned land, is
24 not large enough to contain the pool associated with
25 a 100-year event; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
106
Trial
1 A. Right.
2 Q. And have you ever looked at any of the FEMA
3 floodplain maps for that area?
4 A. Yes.
5 Q. Do they show any of the areas behind Barker
6 being in a 100-year zone?
7 A. I don't remember.
8 Q. Okay. Well, let's -- let's take a quick look
9 at it, then.
10 I need to see Plaintiffs' Exhibit 509,
11 Joint Exhibit 116.
12 We'll get there, I promise you. The
13 first day is always a few wrinkles.
14 It's Joint Exhibit 116.
15 116 is a flood insurance rate map?
16 MR. SHAPIRO: If you could wait for just a
17 minute. I'm still looking for the exhibit.
18 Q. BY MR. EASTERBY: Ready to go?
19 Okay. So this Joint exhibit that's been
20 marked for identification is a FEMA Flood Insurance
21 Rate Map. I believe it's from April of 2014.
22 Zoom in the bottom right, if you would,
23 Matt. It's kind of hard to read.
24 Okay. April 2nd, 2014. Do you see
25 that, Mr. Thomas?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
107
Trial
1 THE WITNESS: Yes, sir.

2 Q. BY MR. EASTERBY: Okay. Then excuse me.
3 Back out, Matt, and just zoom in this area that's
4 behind Barker.
5 All right. So this kind of darker area,
6 Mr. Thomas, that's zone AE; correct?
7 A. Correct.
8 MR. SHAPIRO: Your Honor, this document is
9 not in evidence, yet.
10 MR. EASTERBY: I would move to admit.
11 THE COURT: That's true.
12 On the other hand, questions can be
13 asked about it to establish the witness's familiarity
14 and foundation, just not specific -- we can't have
15 quotes from it or specific references.
16 MR. SHAPIRO: I believe that was going to be
17 the next question.
18 THE COURT: I'm sorry?
19 MR. SHAPIRO: I believe that was going to be
20 the next question was for him to interpret this
21 document.
22 THE COURT: Well, let's find out and not
23 anticipate too much.
24 Q. BY MR. EASTERBY: Mr. Thomas, you're familiar
25 with FEMA insurance rate maps, are you not?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
108
Trial
1 A. Yes, sir.
2 Q. I believe you said a minute ago that you had
3 looked at the one in this area; correct?
4 A. It's been a while, but I have.
5 Q. Okay. And we were just talking about the
6 fact that the Barker pool for a 100-year event is
7 going to exceed government-owned land; right?
8 A. According to the Water Control Manual.
9 MR. EASTERBY: All right. Well, at this
10 point, your Honor, I would move to admit this Exhibit
11 into evidence.
12 THE COURT: Mr. Shapiro.
13 MR. SHAPIRO: May I ask just a clarifying
14 questions, your Honor?
15 THE COURT: Mr. Easterby?
16 MR. EASTERBY: I would prefer he wait until
17 cross-examination to ask his questions.
18 THE COURT: I understand.
19 Rarely the Court will allow this kind of
20 voir dire.
21 You may ask your question, Mr. Shapiro.
23 VOIR DIRE EXAMINATION
24 BY MR. SHAPIRO:
25 Q. Mr. Thomas, do you recognize this document?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
109
Trial
1 A. It's been a long time since I've seen it. I

2 think I've a seen it before.
3 MR. SHAPIRO: Okay. No objection.
6 evidence.)
7 DIRECT EXAMINATION (CONT'D)
8 BY MR. EASTERBY:
9 Q. Mr. Thomas, now that it's been admitted, you
10 know what zone AE is; right?
11 A. Right.
12 Q. That's the zone that's in the 100-year FEMA
13 regulatory floodplain; right?
14 A. Right.
15 Q. And then the gray-shaded area that's outside
16 of that, I believe is the 500-year; correct?
17 A. I believe so.
18 Q. So, notwithstanding the fact that the Barker
19 100-year pool will get beyond government-owned land,
20 it doesn't show that in this map, does it?
21 A. It does not.
22 Q. It does not, does it?
23 A. It does not.
24 Q. So if somebody is looking at a FEMA flood map
25 to try to figure out their flood risk, it's not going

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
110
Trial
1 to tell them that a 100-year event is going to put

2 water in neighborhoods adjacent to government-owned
3 land in Barker, is it?
4 A. Say again?
5 Q. If somebody is looking at a FEMA flood
6 insurance rate map to assess their risk of flooding,
7 it's not going to tell them that in a 100-year event,
8 the pool from the Barker reservoir is going to extend
9 beyond government-owned land and go into those
10 private neighborhoods, is it?
11 A. I don't think it says anything either way
12 about that.
13 Q. Okay. Well, let's leave it at this,
14 Mr. Thomas: You will agree with me that the
15 reservoir pool, the 100-year reservoir pool is not
16 depicted in this FEMA insurance rate map dated April
17 2014; correct?
18 A. Right, in terms of the pool shown in the
19 Water Control Manual.
20 Q. Okay. I'd like to now show you two exhibits
21 that have been identified as PX52 and 53.
22 We need to put them on the screen, Matt,
23 because they are black and white in the witness'
24 binder.
25 I apologize for that, Mr. Thomas.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
111
Trial
1 If you look at your monitor at PX52,

2 this is one of the documents I marked in your
3 deposition. Do you recall that?
4 A. I think so.
5 Q. And it's Bates-stamped USACE on the bottom
6 right, if you can see that. I believe it's
7 USACE236952; correct? If you can read it. It's
8 rather small.
9 A. That's not what was on the screen a second
10 ago.
11 Q. Okay. We'll put up the other one.
12 Here's the point, USACE means the Corps
13 of Engineers produced this document. Do you
14 understand that?
15 A. Yes.
16 Q. Okay. This says it's a 1992 Floodplain
17 Development Map; correct?
18 A. That's what it says.
19 Q. You've seen this before. We talked about it
20 in your deposition, and it's talking about the
21 100-year flood and 50-year flood in the legend;
22 correct, Mr. Thomas?
23 A. Yes, sir.
24 MR. EASTERBY: Your Honor, we move to admit
25 Plaintiff's Exhibit 52 and 53 into evidence.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
112
Trial

3 (Plaintiffs' 52 and 53 were received in
4 evidence.)
5 Q. BY MR. EASTERBY: Mr. Thomas --
6 Put up the one for Barker, I believe, if
7 you would, Matt. I believe it's 53. There we go.
8 If you would --
9 Zoom in. There you go.
10 So it's a little hard to read, but you
11 can see the yellow line corresponding with a 100-year
12 flood; correct?
13 A. Correct.
14 Q. All right. And then you can see that yellow
15 line transecting right through Canyon Gate; right?
16 A. Correct.
17 Q. So this is a Corps of Engineers document;
18 right?
19 A. Yes, sir.
20 Q. Did the Corps of Engineers determine back in
21 the early '90s that even a 50- -- I'm sorry -- a
22 100-year event would occupy that much of Canyon Gate?
23 A. It would appear so.
24 Q. That wasn't in the public notice that we
25 looked at, was it?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
113
Trial
1 A. Which part?
2 MR. SHAPIRO: Well, I have to object. If I
3 could, your Honor, when he's saying public notice,
4 I'm still confused as to whether he's talking about
5 the entire document, which was many, many pages long,
6 or the single page that he actually referred the
7 witness to.
8 THE COURT: Let's use the document,
9 Mr. Easterby, that you referred to earlier.
10 MR. EASTERBY: I'll ask a broader question
11 and maybe make this a little simpler.
13 Q. BY MR. EASTERBY: Mr. Thomas, isn't it true
14 that the Corps of Engineers has repeatedly
15 represented to the public and others that both
16 reservoirs' government-owned land is sufficient to
17 contained a 100-year event?
18 MR. SHAPIRO: And again, objection;
19 foundation. This is not the proper witness for the
20 document.
22 your own public knowledge -- or personal knowledge;
23 I'm sorry.
24 THE WITNESS: I'm not sure.
25 Q. BY MR. EASTERBY: You used to be the chief of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
114
Trial
1 water control; right?

2 A. I was.
3 Q. Engineering construction; right?
4 A. Yes.
5 Q. So you're telling me you don't know if the
6 Corps of Engineers has told the public and others
7 that government-owned land is sufficient to contain
8 the pool associated with a 100-year event?
9 A. So I know for sure that in '92, the recon
10 report that went out had Barker less than a 100-year
11 event, so that went to the public for sure.
12 Q. The '95 recon report was sent to public?
13 A. As far as I know.
14 Q. Okay. We'll see. We'll get back to that.
15 Then we see the 50-year flood that is
16 also green, also appears to be transecting right
17 through Canyon Gate; right?
18 A. It does.
19 Q. This is '92.
20 Mr. Thomas, since then, is it correct
21 that the rainfall associated with a 100-year event
22 has gone up?
23 A. It has.
24 Q. So the risk has gone up; right?
25 A. It has.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
115
Trial
1 Q. So has the Corps done any updated

2 calculations as to presently what kind of storm the
3 Barker reservoir can contain in its government-owned
4 land? 25-year? 50-year? Do you know?
5 A. What's the question again?
6 Q. Has the Corps of Engineers done any updated
7 analysis or study to determine what kind of storm can
8 be contained in the government-owned land in the
9 Barker reservoir?
10 A. That work is going on now.
11 Q. That's going on now?
12 A. It is.
13 Q. Is that part of the Buffalo Bayou and
14 tributaries resiliency project?
15 A. It is.
16 Q. I mean just a quick note, there is no homes
17 here back in '92, are there?
18 A. I don't see any.
19 Q. No.
20 You heard counsel for the government
21 talk about some plats in Fort Bend County in his
22 opening, didn't you?
23 A. Yes, sir.
24 Q. Do you know if the Corps of Engineers ever
25 told Fort Bend County that the Barker reservoirs'

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
116
Trial
1 government-owned land could not contain a 100-year

2 event back in the early '90s?
3 A. Could you say it again?
4 Q. Do you know if the Corps of Engineers ever
5 told Fort Bend County that the government-owned land
6 at the Barker reservoir could not contain a 100-year
7 event back in the early '90s?
8 A. Separate from the recon?
9 Q. Early '90s is before '95. Yes, separate from
10 that.
11 A. I'm not sure.
12 Q. Not sure. Okay. All right.
13 We talked about the standard project
14 flood.
15 I'll tell you what, let's go to the
16 Emergency Action Plan, which is PX5 and JX118.
17 Are you in the right binder, Mr. Thomas?
18 A. 118, I have. I have 118.
19 Is the other one in here, too? Oh, it's
20 the same thing. I got you.
21 THE COURT: I would like to stop a minute.
22 MR. EASTERBY: Yes, your Honor.
23 Of course.
24 THE COURT: I want to just crosscheck.
25 I do not -- I have PX52 admitted, but I

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
117
Trial
1 don't have PX53 admitted.

2 MR. EASTERBY: Well, we would offer to admit
3 PX53 into evidence.
6 (Plaintiffs' Exhibit 53 was received in
7 evidence.)
9 Q. All right. Mr. Thomas, and the Court and
10 counsel, does everyone have in front of them the
11 emergency action plan dated May 22nd, 2014, which has
12 been marked for identification as PX5, JX118.
13 Yes?
14 A. Yes.
15 Q. Okay. And this is the most recent iteration
16 of the Emergency Action Plan for the Addicks and
17 Barker reservoirs; correct?
18 A. No, sir.
19 Q. There's a more updated one than this?
20 A. They are updated annually with phone numbers.
21 Q. I see.
22 Notwithstanding that, you are familiar
23 with this document?
24 A. Yes, sir.
25 Q. And this is a document that the Corps uses if

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
118
Trial
1 there are emergency levels in the Addicks and Barker

2 reservoir; correct?
3 A. Yes, sir.
4 MR. EASTERBY: Plaintiffs would move to admit
5 to move PX5 and JX118 into evidence, your Honor.
6 MR. SHAPIRO: I have no objection to the
7 admission of the document, but it's going to be
8 confusing.
9 I think we should just admit JX118.
10 THE COURT: The Court is doing that.
11 JX118 is admitted.
12 MR. EASTERBY: Fair enough.
14 evidence.)
15 MR. EASTERBY: Counsel just reminded me.
16 It's because we printed some of these out in black
17 and white instead of color, so the PX versions are in
18 color and the JX versions currently are not.
19 THE COURT: The Court appreciates the
20 cross-reference.
21 MR. EASTERBY: We'll cure it.
22 Q. Okay. Mr. Thomas, first of all, during
23 Harvey, there was not a declared emergency pursuant
24 to the Emergency Action Plan; true?
25 A. So we declared a general emergency around

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
119
Trial
1 August 25th, which covered the dam safety emergency,

2 so no additional notification was made.
3 Q. Right.
4 But this talks about emergency level 1,
5 unusual event or developing condition. I'm on page
6 15, USACE019775. There was not an emergency level 1
7 declared, was there?
8 A. It was not specifically declared.
9 Q. There was not an emergency level 1 declared,
10 period; correct?
11 A. Right, because we had already declared an
12 emergency before this.
13 Q. But not an emergency level 1 emergency;
14 correct?
15 A. Right, so we followed the instructions for
16 emergency level 1 and 2 as required in here, but we
17 had already declared an emergency.
18 Q. There was no risk of dam failure during the
19 Harvey event; true?
20 A. Not true.
21 Q. Not sure?
22 A. "Not true," I said.
23 Q. Not true?
24 There was a risk of dam failure during
25 the Harvey event?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
120
Trial
1 A. Sure.
2 Q. Okay. We'll look at that in just a minute in
3 the -- after an action report.
4 But let's continue with this document
5 while we're here: There was not an emergency level 2
6 declared during Harvey; right?
7 A. Right.
8 Q. Or an emergency level 3; correct?
9 A. Correct.
10 Q. And if you go to the end of this document, at
11 USACE019883, it's page 8-2, it's the water elevation
12 impact tables.
13 And you're familiar with this, I assume,
14 Mr. Thomas?
15 A. Yes, sir.
16 Q. And the purpose of having these water
17 elevation impact tables is to give the Corps guidance
18 as to what's going to happen when the pool reaches
19 certain elevations; right?
20 A. Yes, sir.
21 Q. Okay. So if we look on this --
22 Go, if you would, down here, Matt, to
23 101.2, all the way to the bottom.
24 So this tells us when the Addicks pool
25 gets to 101.2 feet, it floods the first street

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
121
Trial
1 upstream; correct?
2 A. Yes, sir.
3 Q. And then it tells us that at 103 feet, the
4 pool will exceed the limits of government-owned land;
5 right?
6 A. Right.
7 Q. So that means before the pool exceeds
8 government-owned land, it's already flooded upstream
9 streets; true?
10 A. True.
11 Q. And that's because that rising pool
12 interferes with the drainage from those upstream
13 neighborhoods; correct?
14 A. I'm not sure that's true.
15 Q. You know what a backwater effect is?
16 A. Yes, sir.
17 Q. What's a backwater effect?
18 A. It's the -- simply a change in water surface
19 elevation attributed to a downstream boundary
20 condition.
21 Q. Downstream boundary condition.
22 So I'm a layperson. To me that means if
23 there's not enough space for the water to drain into,
24 it's going to start backing up; right?
25 A. Right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
122
Trial
1 Q. And so as we see here, that happens before

2 the pool gets outside of government-owned land,
3 doesn't it?
4 A. I'm not sure that's how they calculated that.
5 Q. When you say "they," you mean the Corps,
6 don't you?
7 A. I mean me.
8 Q. And this is in the Emergency Action Plan's
9 Water Impact Table; correct?
10 A. It is.
11 Q. Any reason to think this is inaccurate or
12 wrong?
13 A. No.
14 Q. In fact, the Corps knows exactly which street
15 it's going to flood when a pool gets to that level,
16 doesn't it?
17 A. Yes.
18 Q. Yeah.
19 And as you go further, 103.4 --
20 Where's my laser? There it is.
21 -- first home inundated upstream;
22 correct?
23 A. Yes, sir.
24 Q. And the Corps knows exactly which home it
25 will submerge with its --

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
123
Trial
1 Let me start over.

2 The Corps knows exactly which home it
3 will submerge with the runoff that's being held back
4 by the Addicks dam, doesn't it?
5 A. We do know which home; that's correct.
6 Q. Uh-huh.
7 And again, if we go down here to the
8 spillway design flood, at 115 feet towards the
9 bottom -- do you see that?
10 A. Yes, sir.
11 Q. It says at that elevation, the Addicks
12 reservoir pool will occupy 20,910 acres, surface
13 acres; correct?
14 A. Correct.
15 Q. The government-owned land is 13,016; right?
16 A. Right.
17 Q. So that's over 7,000 acres of homes and
18 businesses that are going to be submerged for a
19 spillway design flood; correct?
20 A. Could you repeat it?
21 Q. That means that over -- I think my math's
22 right. Let me make sure.
23 Yeah, it's over 7,000 acres of homes and
24 businesses behind Addicks are going to be submerged
25 by the Addicks pool if there is a spillway-designed

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
124
Trial
1 flood; right?
2 A. They could be.
3 Q. Well, they would be; right?
4 A. Maybe.
5 Q. Mr. Thomas, if the pool gets to 115 feet in
6 Addicks, it's going to occupy 20,910 surface acres;
7 right?
8 A. Right.
9 Q. That is also 329,676 acre-feet; correct?
10 A. Correct.
11 Q. And an acre-foot is an acre of water that's
12 one foot deep; right?
13 A. Right.
14 Q. I mean the water is going to go there.
15 Nothing is going to stop it; right?
16 A. Right.
17 Q. So you say it could go there. It will go
18 there. Yes?
19 A. Well, assuming those calculations are
20 correct, yes.
21 Q. Mr. Thomas, do you have any reason to believe
22 these calculations are not correct?
23 A. There is a lot of uncertainty with a flood
24 that big. So it's hard to be sure exactly where it
25 is.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
125
Trial
1 Q. Is it correct that the Corps of Engineers has

2 been wrestling with the spillway design flood issue
3 for Addicks and Barker since about 1972?
4 A. Yes.
5 Q. It's been the subject of a lot of studies and
6 investigation and research, hasn't it?
8 Q. Yes?
9 A. Yes, sir.
10 Q. So what's this uncertainty you're talking
11 about?
12 A. Well, uncertain in the amount of water --
13 certainly since that model was done in the '70s, the
14 watershed has changed a lot, so we're redoing all
15 that now.
16 Q. Right.
17 I mean, rain's gotten higher; right?
18 More rain?
19 A. Right.
20 Q. So reasonable to expect that the spillway
21 design flood now would be even more; right?
22 A. It could be.
23 Q. Could be.
24 What is a spillway design flood?
25 A. So, specifically, it's a flood used to design

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
126
Trial
1 a spillway. In this case, it is the probable maximum

2 flood. So it would mean it's the worst possible
3 flood that we think is possible. It would be
4 generated by the atmosphere. We don't think a worst
5 flood could happen. We do it to design dams against
6 failure.
7 Q. Mr. Thomas, in your deposition, you said the
8 spillway design was for the maximum flood expected
9 for the reservoirs. Do you recall that?
10 A. No, sir.
11 THE COURT: Mr. Easterby, I will ask a
12 technical question that relates --
13 MR. EASTERBY: Of course.
14 THE COURT: -- to the last answer Mr. Thomas
15 gave.
17 THE COURT: Mr. Thomas, I hope you're
18 describing something that would be a spillway flow
19 physically of impounded water at the
20 spillway-designed flood. In other words, the
21 spillway would come into operation and spill water;
22 is that correct?
25 Q. BY MR. EASTERBY: So Mr. Thomas, just to

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
127
Trial
1 follow up on the Judge's question, it is correct that

2 the spillway design flood for Addicks and Barker
3 refers to the situation where impounded runoff is
4 flowing over the auxiliary spillways outside the
5 dam -- outside of the area of the dams?
6 A. It is.
7 Q. It's not referring to it just going around
8 the natural ground at the end of the dams?
9 A. Not for the spillway design flood.
10 Q. Okay. And it's correct that in the '80s, the
11 Corps of Engineers did substantial modifications and
12 renovations to both dams to address the spillway
13 design flood issue; right?
14 A. Right.
15 Q. And I'll tell you what: Just summarize very
16 briefly, if you would, what those modifications were.
17 A. So in the '80s we raised the main embankment,
18 and then there were low sections along each end of
19 the dam on the site visit, and we basically kept
20 those at their existing elevation, and we excavated
21 out and covered them in concrete so they wouldn't
22 fail when those high flows went over them. We also
23 did some other minor changes which were some seawall
24 sections near the outlet structure.
25 Q. Okay, Mr. Thomas, and we talked about how

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
128
Trial
1 those auxiliary spillways are covered in

2 roller-compacted concrete; right?
3 A. Right.
4 Q. And they are pretty long, aren't they? I
5 mean, they're -- I think the northern end of Addicks
6 is something like 10,000 feet?
7 A. They are.
8 Q. On August 30th, 2017, did you go on a
9 helicopter tour to look at the dams?
10 A. Probably.
11 Q. I seen a video. I just wasn't sure it was
12 you. Do you remember that?
13 A. I took lots of helicopter tours. There may
14 have been one on that day.
15 Q. So Mr. Thomas, the Corps of Engineers, in
16 terms of getting these elevations we're talking
17 about, where does it get its information from to know
18 the elevation of the Addicks pool or the Barker pool?
19 A. So we measure the pool level at the gauges at
20 the outlet structure.
21 Q. Okay. I'm trying to get Plaintiffs' Exhibit
22 21 and 23.
23 I am informed they are Joint Exhibits
24 233 and 143.
25 THE COURT: 233 and 143?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
129
Trial

3 It will take us a minute to organize
4 ourselves.
5 Q. BY MR. EASTERBY: Okay. Let's see. We're
6 looking at JX233 on the screen, which is USGS8073000,
7 Addicks reservoir near Addicks, Texas.
8 Do you see that, Mr. Thomas?
9 A. Yes, sir.
10 Q. And that's a photograph depicting the outlet
11 works and USGS gauge there; correct?
12 A. Correct.
13 Q. And not -- I take it you're familiar with
14 that area?
15 A. Yes, sir.
16 Q. Does that photograph accurately depict that
17 area as of July 23rd, 2018?
18 A. I believe so.
19 MR. EASTERBY: We'd move to admit JX -- which
20 one is this again? 233 JX.
24 evidence.)
25 Q. BY MR. EASTERBY: Okay. So Mr. Thomas, as I

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
130
Trial
1 understand it, there is a USGS gauge -- I think it's

2 here; is that right?
3 A. I don't remember if we moved it over or not.
4 Q. Okay.
5 A. See, there's no walkway out there. I think
6 they moved this.
7 Q. Is it correct that during Harvey, both of the
8 gauges in Addicks and Barker were moved?
9 A. I believe so.
10 Q. Okay. Notwithstanding that, this gauge,
11 wherever it may be, is what tells the Corps of
12 Engineers what the elevation of those pools are;
13 correct?
14 A. Correct.
15 Q. And it does that in a number of ways. It's
16 got like a radar transducer. Are you familiar with
17 how it does that?
18 A. Yes, sir.
19 Q. And the Corps of Engineers gets information
20 from those gauges in 15-minute increments; right?
21 A. Right.
22 Q. Okay. Let's get into evidence --
23 This has already been admitted.
24 Let's show JX143, which is the Barker
25 gauge. It's 239.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
131
Trial
1 Okay. So 239 -- I apologize for this,

2 Judge. We'll get our kinks ironed out; I promise
3 you.
4 THE COURT: You're doing fine.
5 Q. BY MR. EASTERBY: This exhibit is depicting
6 the Barker reservoir's USGS gauge that's also near
7 the outlet works; correct?
8 A. Correct.
9 Q. And does it accurately depict the outlet
10 works and the gauge?
11 A. As of that day, sure.
13 We would move to admit Joint Exhibit 239
14 into evidence.
16 THE COURT: 239 -- just a minute.
17 I have JX143. You say this is PX143 and
18 JX what?
19 MR. EASTERBY: I believe it's JX239. The 143
20 was a mistake. It was a different exhibit.
21 THE COURT: All right. Just a moment.
22 Admitted.
24 evidence.)
25 Q. BY MR. EASTERBY: And just like Addicks, it

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
132
Trial
1 gives the Barker pool elevation every 15 minutes;

2 correct?
3 A. Correct.
4 Q. And the USGS comes out regularly to maintain
5 and calibrate those gauges to make sure they are
6 accurate; right?
7 A. They do.
8 Q. And this is what the Corps relies upon in
9 doing its operations, is that -- those two gauges;
10 right?
11 A. Right.
12 Q. Okay. So back to the water elevation impact
13 tables. I wanted to ask you some questions about the
14 elevations of those auxiliary spillways for Addicks.
15 We're back to page E-2 of JX118.
16 And I believe it indicates, Mr. Thomas,
17 that the north spillway elevation is 111.5 feet;
18 right?
19 A. Right.
20 Q. And so that's referring to the top of the
21 roller-compacted concrete at the end of the auxiliary
22 spillway at the northern portion of Addicks; correct?
23 A. Actually, it would be in the middle.
24 Q. You mean the middle of the embankment or the
25 middle of the auxiliary?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
133
Trial
1 A. The spillway. I forget exactly where this

2 was. I haven't gone by this.
3 Q. Okay. The west spillway elevation for
4 Addicks is 114.5; right?
5 A. Correct.
6 Q. And those are the spillway crest elevations;
7 correct?
8 A. Correct.
9 Q. Now, Mr. Thomas --
10 THE COURT: May I ask a quick question?
12 THE COURT: Mr. Thomas, what do you mean by
13 the spillway crest elevation?
14 THE WITNESS: So the spillway gets kind of a
15 trapezoidal shape at the highest point.
16 THE COURT: What is the lowest point on the
17 spillway?
18 THE WITNESS: That would be down at the toe,
19 so down on the turf.
20 THE COURT: Ah.
21 THE WITNESS: So as you're looking, it kind
22 of drops across it, perpendicular.
23 THE COURT: What I would really like to know
24 is the elevation at which water from the impoundment
25 starts spilling out of the spillway.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
134
Trial
1 THE WITNESS: So they start to spill at the

2 ends of the dam, so right there, 108 feet for
3 Addicks, that's when the water starts to spill.
4 MR. EASTERBY: Sorry, Judge.
5 Any more?
6 Q. Okay. During the Harvey event on August
7 30th, the Addicks pool reached a peak elevation of
8 109.1 feet on August 30th; correct?
9 A. I believe so.
10 Q. That is higher than the natural ground at the
11 end of the Addicks dam; right?
12 A. Right.
13 Q. By a foot, more than a foot?
14 A. Around a foot.
15 Q. So you would expect to see a whole lot of
16 water flowing around that natural ground, wouldn't
17 you?
18 A. You would expect to see water flow.
19 Q. And in reality, there was very, very little
20 water that actually flowed on that natural ground;
21 correct?
22 A. Well, what's very little?
23 Q. Let's say less than 500 cubic feet per
24 second.
25 A. I think we were about in that ballpark.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
135
Trial
1 Q. So, Mr. Thomas, if the natural ground is at

2 108 feet, and the pool is at 109 feet, why wouldn't
3 all that extra water just flow out? How does it stay
4 in?
5 A. Friction.
6 Q. Friction?
7 A. Right.
8 It takes time for the water to move over
9 the earth.
10 Q. Well, that pool was there from, what? August
11 27th through September 2nd or thereabouts?
12 A. It depends on exactly which elevation you're
13 talking about.
14 Q. I mean, I'll be candid with you, Mr. Thomas.
15 In looking at this case, when I first looked at it, I
16 believed that if you had an elevation over 108 feet,
17 you just couldn't be flooded behind Addicks. The
18 water would just pour out the sides. Does that makes
19 sense to you?
20 A. I understand what you're saying.
21 Q. What we found was there is high water marks
22 all around and behind the Addicks area that are well
23 above 108 feet from that August 30th pool; right?
24 A. I don't remember the elevation of the water
25 marks.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
136
Trial
1 Q. Well, you know the pool was 109-plus; right?

2 A. Right.
3 Q. So it's just friction?
4 A. It takes times for the water to move over the
5 earth and spill out and go through the spillways and
6 then turn around the emergency spillways.
7 Q. Okay. But notwithstanding all that, the
8 spillway crest elevation for Addicks north is 111.5;
9 right?
10 A. Right.
11 Q. And spillway crest elevation for Addicks west
12 is 114.5; correct?
13 A. Correct.
14 Q. Okay. Now, let's flip the page and talk
15 about Barker.
16 THE COURT: Mr. Easterby, may I ask a
17 question?
19 THE COURT: Was water flowing out the
20 spillways?
21 THE WITNESS: Water was flowing out the
22 conduits at the primary spillways for both dams, as
23 well as around the northern spillway for Addicks.
24 THE COURT: This is apart from the gates?
25 THE WITNESS: So the gated conduits were

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
137
Trial
1 flowing at both structures, and then at Addicks on

2 the north end, in addition to the gates, there was
3 also water coming in.
4 THE COURT: I thought the spillways were
5 separate and independent from the gates.
6 THE WITNESS: All right. So there's two
7 kinds of spillway. The outlet works have their own
8 spillway. That's how they manage or release the
9 waters without causing anything to fail, and then
10 there are also emergency or auxiliary spillways on
11 each end of each dam.
12 THE COURT: All right. Now I understand.
13 Thank you.
14 Q. BY MR. EASTERBY: Okay. So I'm going to try
15 to do this with the PowerPoint slide.
16 So Mr. Thomas, the auxiliary spillways
17 we've been talking about are where my red dot is, and
18 they extend down to about here; right?
19 A. Right.
20 Q. And they're roller-compacted concrete, and
21 they're designed to have water flow over them in the
22 occurrence of a spillway design flood; right?
23 A. Right.
24 Q. And also down here -- okay.
25 On the western edge of Addicks, there's

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
138
Trial
1 also auxiliary spillways down here; correct?

2 A. Correct.
3 Q. And you just told me that spillway crest
4 elevation; correct?
5 A. Correct.
6 Q. So during Harvey, there was 200, 300 cubic
7 feet per second that came around here, but did not
8 actually go over the embankments; right?
9 MR. SHAPIRO: Objection; that misstates the
10 testimony.
11 THE COURT: I'm sorry, Mr. Shapiro?
12 MR. SHAPIRO: That misstates the testimony.
15 And if you'd like to correct the
16 question, you may certainly do so.
18 Could you rephrase for me, sir?
19 Q. BY MR. EASTERBY: Sure.
20 During Harvey, there was some water that
21 went around here, but not actually over the auxiliary
22 spillways; correct?
24 Q. And that's the only place where there was any
25 water that came out around the embankments was this

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
139
Trial
1 northern part of Addicks; correct?

3 Q. Nothing down here on the western part of
4 Addicks; correct?
5 A. That's right.
6 Q. And nothing whatsoever in Barker?
7 A. Right.
8 Q. All the other water is coming out of the
9 outlet works; right?
10 A. Right.
11 Q. Okay.
12 THE COURT: Mr. Easterby, we really ought to
13 take a break at some point. If you're finished with
14 this set of questions, then we could take a break now
15 or we could take a break in a couple of minutes.
16 MR. EASTERBY: If I can just establish the
17 spillway crest elevations for Barker, one minute,
18 we'll be at break time.
19 THE COURT: Please.
21 Q. All right. So we're looking at E-4 of the
22 Emergency Action Plan, JX118. It states that the
23 north spillway elevation for Barker is 105.1;
24 correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
140
Trial
1 Q. So that's the spillway crest elevation for

2 Barker's north auxiliary spillway; right?
3 A. Right.
4 Q. And the west auxiliary spillway for Barker is
5 106.7?
6 A. Right.
7 Q. And that's the spillway crest elevation for
8 the west spillway and the Barker reservoir; correct?
9 A. Right.
10 Q. And the Barker reservoir spillway design
11 flood elevation is 108 feet; correct?
12 A. Correct.
13 MR. EASTERBY: All right.
14 Your Honor, good time for a break.
15 THE COURT: Mr. Thomas, would you mind our
16 taking a break now?
17 THE WITNESS: I wouldn't mind at all, sir.
18 THE COURT: All right. Thank you very much.
19 We are in recess for lunch for one hour.
20 (Lunch recess: 12:24 p.m. - 1:29 p.m.)
21 THE COURT: Mr. Thomas, welcome back.
22 Please take your accustomed seat in the
23 witness stand.
25 THE COURT: Mr. Easterby, you may proceed.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
141
Trial

3 BY MR. EASTERBY:
4 Q. Mr. Thomas, when we broke, we were talking
5 about the Emergency Action Plan Water Impact Tables,
6 and I believe we established the spillway crest
7 elevations and the elevations for the spillway design
8 flood; correct?
9 A. Correct.
10 Q. Now, within the Corps of Engineers, you all
11 have a native file which allows you to click on a
12 certain elevation, and it will populate what the pool
13 would look like. Do you know what I'm talking about?
14 A. Which one?
15 Q. Well, I didn't know there was more than one,
16 but let me have Matt put up Plaintiff's Exhibit 1660.
17 MR. EASTERBY: This is a native file, Judge,
18 so I -- I don't have anything to hand the Court at
19 this point, but I'll make a proffer with an exhibit
20 in just a minute.
21 Q. So, Mr. Thomas, do you recognize 1660 there
22 on your monitor?
23 A. Maybe.
24 Q. Well, I'll represent to you it was produced
25 by the Corps of Engineers in this litigation. It

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
142
Trial
1 states at the top, Addicks and Barker Reservoir

2 Inundation, reservoir inundation was extracted from a
3 digital elevation model. Do you see that?
4 A. Yes, sir.
5 Q. And on the left, you'll see there is some
6 layers for Addicks and Barker that have various
7 elevations; correct?
8 A. Correct.
9 Q. So if we wanted to see what Addicks would
10 look like in a spillway design flood, Matt would need
11 to click on the 115?
12 MR. SHAPIRO: I'll object, your Honor. This
13 isn't in evidence yet.
14 THE COURT: Mr. Shapiro, your objection
15 specifically is what?
16 MR. SHAPIRO: The document is not yet in
17 evidence.
19 MR. EASTERBY: Well, your Honor, I --
20 THE COURT: It's not really a document. It
21 is an electronic file, I take it?
22 MR. EASTERBY: It is, your Honor. That's the
23 point. It's dynamic, so until it's populated with
24 that elevation, it really doesn't show anything
25 except for the reservoirs and the government-owned

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
143
Trial
1 land boundary.
2 THE COURT: Mr. Thomas seems familiar with
3 the idea, but I don't know if he's familiar with this
4 specific electronic file.
5 MR. EASTERBY: Let me see if I can lay a
6 little more foundation, your Honor.
7 Q. BY MR. EASTERBY: Mr. Thomas, it's correct
8 that within the Corps of Engineers in the water
9 control section, there are apparently more than one
10 of these native files that allow you to click on a
11 certain elevation to see what the corresponding
12 reservoir pool would look like; correct?
13 A. There are.
14 Q. And have you seen those before?
15 A. I don't know that I've seen this one. I've
16 seen like an RJIS map, but I was thinking that was
17 what you were going to show us, and I was thinking
18 this is an outlet from something like that, but I
19 can't verify the source of the data you have here.
20 Q. Well, the source of the data is from the
21 Corps of Engineers, who produced it.
22 MR. EASTERBY: All right. Based on that
23 foundation and his familiarity with it, your Honor, I
24 would offer PX1880 into evidence.
25 THE COURT: I thought it was 1660.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
144
Trial
1 MR. EASTERBY: 1660.

2 Pardon me, Judge, I can't read the
3 sticker from this far away.
5 MR. SHAPIRO: We would object on lack of
6 foundation.
7 MR. EASTERBY: Judge, I mean, he was head of
8 water control for three years, head of engineering.
9 He says he's familiar with these kinds of inundation
10 graphics and models, so I believe I have laid the
11 foundation.
12 THE COURT: Why don't you ask a few more
13 questions, Mr. Easterby? I think you can, because
14 he's familiar with the type of document, but what
15 there is about this that he might not be familiar
16 with, let's find out.
17 Q. BY MR. EASTERBY: Okay. Well, so when it
18 says it's extracted from a digital elevation model,
19 Mr. Thomas, do you have an understanding as to what
20 that means?
21 A. Yes, sir.
22 Q. Do you know what LIDAR is?
23 A. Yes, sir.
24 Q. And, again, that's an acronym. I don't
25 remember. Do you?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
145
Trial
1 A. Light detection and range, I believe.

2 Q. As I understand it, LIDAR is a system whereby
3 you can fly over terrain in an aircraft and it gives
4 you a very accurate topographic elevation map of the
5 surface of the earth; correct?
6 A. It does give you a map. Its accuracy is
7 often debated.
8 Q. Is often debated?
9 The Corps uses LIDAR information
10 regularly with regard to its operations of the
11 Addicks and Barker dams and reservoirs, does it not?
12 A. We do.
13 Q. And do you have an understanding that LIDAR
14 was used for this particular exhibit that we've been
15 talking about?
16 A. I would guess that it has been, but, like I
17 said, I didn't create the document, so it's hard to
18 be sure exactly what was used to create the digital
19 elevation model.
20 Q. All right. And in simple terms, if you know
21 the elevation from LIDAR, you can create a layer that
22 shows all of the elevations that would be covered by
23 water if it ever got that high. That's the point of
24 this; right?
25 A. You could do that.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
146
Trial
1 Q. Is that why this was created? To give the

2 Corps of Engineers an idea as to where its pool will
3 go when it exceeds government-owned land?
4 A. So we have created documents like this for
5 that purpose, but like I said, I don't remember
6 exactly what this particular one was created for.
7 Q. Okay. Irrespective of the purpose, is it
8 correct that by clicking on one of those elevations,
9 it will populate and depict -- I think, in blue or
10 green -- the areas that would be covered by the pool
11 if it got to that elevation?
12 A. It should.
13 MR. EASTERBY: Your Honor, we'd move to admit
14 this exhibit, 1660.
15 MR. SHAPIRO: We would object, your Honor.
16 The problem is a lack of foundation.
17 This witness doesn't recognize this document. The
18 problem is not what he thinks. It's guessing the
19 source of the underlying data. It's a lack of
20 foundation with respect to this document, and so
21 maybe there's another witness that would recognize
22 this document, but this witness is not the person.
23 THE COURT: The Court modestly disagrees.
24 I think Mr. Thomas has established he
25 works with these types of documents, and the general

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
147
Trial
1 use of the documents is well known to him.

2 This particular extract might not be
3 something with which he's familiar, but the Court
4 will admit the exhibit.
5 PX1660 is admitted.
6 (Plaintiffs' Exhibit 1660 was received
7 in evidence.)
9 And, Matt, I would like for you now to
10 click on, for Addicks, 115 feet, and for Barker, 108
11 feet.
12 Q. Mr. Thomas, from the water impact tables you
13 have in front you, you can confirm that those are the
14 spillway design flood elevations for Addicks and
15 Barker; correct?
16 A. Correct.
17 Q. And so what we're seeing here is depiction of
18 where the pool would go if a spillway design flood
19 occurred; correct?
20 A. Partially.
21 Q. Partially because you would expect to see
22 flows coming over the embankments over here outside
23 the dam, and maybe down here (indicating)?
24 A. Right.
25 So probably around all four corners and

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
148
Trial
1 out of the outlets as well.

2 Q. Right.
3 But obviously we see this pool extending
4 well beyond government-owned land; correct?
5 A. Correct.
6 Q. Do you see on this exhibit where
7 government-owned land is indicated on this red line
8 or black line or whatever that is?
9 A. It does look like that one.
10 Q. Okay.
11 MR. EASTERBY: Your Honor, we would like to
12 admit into evidence this image, which I have prepared
13 screen captures of and can exchange these with
14 counsel and furnish to the Court as well.
15 THE COURT: What would you like to identify
16 as the screen shot you mentioned?
17 MR. EASTERBY: Your Honor, for the record, we
18 would be identifying the iteration of Plaintiff's
19 Exhibit 1660 that has Addicks layer populated to 115
20 feet and Barker populated to 108 feet, and I marked
21 that for identification as Plaintiffs' Exhibit 2297.
22 I can tender a copy to counsel.
24 MR. SHAPIRO: Same objection as before, your
25 Honor; lack of foundation.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
149
Trial
1 THE COURT: Overruled.

2 Admitted.
4 in evidence.)
6 Q. Mr. Thomas, I'm going to hand you --
7 actually, your Honor, I need to tender this to your
8 clerk.
9 THE COURT: Okay.
10 Q. BY MR. EASTERBY: And, Mr. Thomas, in the
11 eventuality of a spillway design flood, it's correct
12 that the amount of private land that would be
13 occupied by the impounded runoff would exceed 15,000
14 acres; is that right?
15 A. That looks right.
16 Q. Thank you.
17 Okay. Mr. Thomas, is it your
18 understanding that the Addicks and Barker reservoir
19 pools reached their peak heights on August 30, 2017?
20 A. I believe so.
21 Q. Okay. At this point, I'd like to show you
22 what's been marked for identification as Joint
23 Exhibit 143 and Joint Exhibit 144.
24 Oh, you already have it. Fantastic.
25 Your Honor, I have a couple of copies

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
150
Trial
1 right here, if you'd like.

2 THE COURT: Thank you, Mr. Easterby, but I
3 have to get used to this exercise.
4 MR. EASTERBY: Well, we're going to get
5 better with this exercise. I don't want us all to
6 get too much exercise.
7 THE COURT: Well, every little bit helps.
8 MR. EASTERBY: Okay. Thank you, Judge.
9 Q. All right. Mr. Thomas, JX143 is a printout
10 from the gauge at Addicks USGS08073000; correct?
11 A. That looks to be, sir.
12 Q. And this is one of the documents I showed you
13 in your deposition. Do you recall that?
14 A. I think so, sir.
15 Q. And it has several columns that show, amongst
16 other things, the date, the time, the time zone,
17 storage in acre-feet, whether that number has been
18 approved, the elevation, and whether that number is
19 approved. Do you see that?
20 A. Yes, sir.
21 Q. And you're familiar with this type of
22 document and this information; correct?
23 A. Correct.
25 admit Joint Exhibit 143 and Joint Exhibit 144 at this

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
151
Trial
1 time.
4 (Joint Exhibits 143 and 144 were
5 received in evidence.)
6 Q. BY MR. EASTERBY: All right. Mr. Thomas, if
7 you look at 143 and you turn to page 13, column 497,
8 it appears that the Addicks reservoir reached an
9 elevation of 109.09 feet on August 30th, 2017, at
10 7:00 a.m. Central Daylight Time; correct?
11 A. Correct.
12 Q. And then there is a corresponding storage in
13 acre-feet of 270,800; correct?
14 A. Correct.
15 Q. And you see those A's next to both of those
16 numbers, the acre-feet and the elevation?
17 A. Yes, sir.
18 Q. And it's your understanding that that means
19 that those are approved by the USGS?
20 A. It is.
21 Q. And then with regard to Barker, JX144, if you
22 turn to page 12, row 438, that would indicate that
23 the Barker reservoir reached its maximum pool
24 elevation on August 30th at 4:50 a.m. Central
25 Daylight Time, August 30th, 2017; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
152
Trial
1 A. Correct.
2 Q. And that elevation is 101.59 feet; correct?
3 A. Correct.
4 Q. Corresponding to storage of 171,500 acre-feet
5 of impounded runoff; correct?
6 A. 171,500 feet.
7 Q. Of impounded runoff; correct?
8 A. Correct.
9 Q. This is the reservoir pool; right?
10 A. It is.
11 Q. For both of these.
12 This is the amount of runoff that has
13 been held back or impounded and now is occupying
14 people's homes; correct?
15 A. In some cases.
16 Q. In some cases.
17 And after Harvey had passed, and the
18 rain had stopped, which I believe was on or about the
19 28th or 29th, you did go on a helicopter tour to go
20 see the embankments and go see some of the upstream
21 submersion, did you not?
22 A. I did.
23 Q. And you actually witnessed and saw people's
24 homes with that reservoir pool in them; right?
25 A. I did.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
153
Trial
1 Q. And you may recall this from your deposition

2 where we did an exercise of comparing
3 government-owned land acreage to the surface acreage
4 from the reservoir pools, and we concluded that there
5 was 7,095 acres of private land that was occupied by
6 that impounded runoff for both reservoirs. Do you
7 recall that?
8 A. I remember doing it. I don't remember the
9 exact number.
10 Q. Okay. Well, it's just a function of math.
11 In fact, it may be useful at this point to go back to
12 1660, Matt, so we can show what the Harvey inundation
13 looked like.
14 THE COURT: As we're doing that, you want to
15 make sure that the reporter knows that JX143 and 144
16 are admitted.
18 Q. So for this one, Matt, let's click on Addicks
19 at 109. It was a bit higher than that, but we'll
20 truncate, and for Barker, let's go to 102, since it
21 was 101.59.
22 Do you see that, Mr. Thomas, on your
23 screen?
24 A. Yes, sir.
25 Q. Addicks has been populated to 109 feet, and

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
154
Trial
1 Barker has been populated to 102 feet; correct?

2 A. Correct.
3 Q. So this is an approximate depiction of the
4 extent of the reservoir pools on August 30th, right
5 after Harvey had passed and the rain had stopped;
6 correct?
7 A. Correct.
8 Q. And you can see here that there's extensive
9 inundation and submersion beyond the government-owned
10 land boundaries; correct?
11 A. There is in addition to that, yeah.
12 Q. Are you familiar at all with these areas
13 behind the dams, Mr. Thomas?
14 A. A little.
15 Q. Up here is Lakes on Eldridge, top right
16 corner of Addicks. Are you aware of that?
17 A. Yes.
18 Q. And you know that one of our test properties
19 is located there; correct?
20 A. Yes.
21 Q. And Twin Lakes is over here, just a little
22 bit west of Lakes on Eldridge. You're aware of that;
23 correct?
24 A. I believe so.
25 Q. Over here on the west side of that northern

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
155
Trial
1 portion of government-owned land, this is Bear Creek

2 Village; correct?
3 A. Correct.
4 Q. We have a test property here, Ms. Burnham.
5 We have a test property down here, Mr. Turney, and we
6 have a test property here, Mr. and Mrs. Stewart.
7 You're aware of that; correct?
8 A. I believe so.
9 Q. You see we have got the West Houston Airport
10 over here. It's hard to see because it's under
11 water, but you can kind of see the structures over
12 here.
13 You're familiar with that area?
14 A. Yes, sir.
15 Q. And then if you would move down to the Barker
16 map.
17 Ms. Micu lives down here in Canyon Gate.
18 You're familiar with that area?
19 A. Yes.
20 Q. And it's true that every single house in
21 Canyon Gate got submerged with that inundated --
22 strike that.
23 It's true that every single house in
24 Canyon Gate got submerged by the Barker reservoir
25 pool, isn't it?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
156
Trial
1 A. Is it?
2 I'm not sure that it is.
3 Q. Doesn't the map appear to reflect that?
4 A. It does appear to reflect that, but it
5 doesn't show the elevation of the first floor of the
6 homes.
7 Q. Okay. The Corps knows the elevation of all
8 those homes, doesn't it?
9 A. We have a survey, but I don't have it now,
10 sir.
11 Q. Right.
12 But the point is the Corps of
13 Engineers -- and we'll get into this a little bit
14 later today -- went out and had a vendor do
15 first-floor elevations of all these homes behind
16 Addicks and Barker; right?
17 A. We did have first-floor surveys done, but I'm
18 not sure if we had every single home or not.
19 Q. Every single home, okay.
20 Fair enough.
21 MR. EASTERBY: Your Honor, we'd like to admit
22 this as Plaintiffs' Exhibit 2298, this being a
23 depiction of the Harvey reservoir pools as previously
24 described.
25 MR. SHAPIRO: Same objection; lack of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
157
Trial
1 foundation.
3 Admitted.
4 (Plaintiffs' Exhibit was 2298 received
5 in evidence.)
6 Q. BY MR. EASTERBY: And, Mr. Thomas --
7 MR. SHAPIRO: Does counsel have an extra copy
8 of it?
9 MR. EASTERBY: Yeah, I sure do, Bill.
10 MR. SHAPIRO: What number?
12 Q. Okay. Mr. Thomas, you're familiar, are you
13 not, with the annual water control reports that the
14 Southwestern Division submits every year; correct?
15 A. Correct.
16 Q. And what is the Southwestern Division?
17 A. It is the major subordinate command of which
18 the Galveston District is a part.
19 Q. So the Southwestern Division is above the
20 district in terms of the hierarchy?
21 A. That's right.
22 Q. And what is the purpose of submitting or
23 preparing and submitting these annual water control
24 reports?
25 A. The Corps writes a report every year

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
158
Trial
1 documenting how our projects performed, and

2 essentially what benefits they created for the
3 nation.
4 Q. Who is that report sent to?
5 A. We send it to the division; they send it to
6 headquarters, and ultimately it is filed with
7 Congress.
8 Q. It goes all the way to Congress; right?
9 A. I believe so.
10 Q. And the purpose is to show Congress how much
11 flood damage is being prevented by the Corps' flood
12 mitigation projects; correct? Amongst other things.
13 A. Right.
14 Q. Okay. I'd like to show you what's been
15 marked for identification as Joint Exhibit 228. And
16 228 is a document Bates-stamped USACE869431
17 entitled --
18 I'm sorry, Judge. I didn't know you
19 hadn't gotten it yet.
20 THE COURT: I'm working on it.
21 Thank you.
22 Q. BY MR. EASTERBY: Okay. Mr. Thomas, Joint
23 Exhibit 228 is a document entitled "Fiscal Year 2017
24 Annual Water Control Report" dated June 2018;
25 correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
159
Trial
1 A. Correct.
2 Q. And it says "for official use only" on there.
3 Do you see that?
4 A. Yes.
5 Q. And is it correct that in the Corps of
6 Engineers, that if it says "for official use only" on
7 it, that means it is not to be shared with the
8 public?
9 A. Generally.
10 Q. Generally.
11 Are there some exceptions to that rule?
12 A. Yes, sir.
13 Q. What are the exceptions?
14 A. It would be on a case-by-case basis in terms
15 of need, if there was some need to release it. It's
16 generally a flag so we know to go and talk to
17 leadership and counsel about whether to release it to
18 the public.
19 Q. I see.
20 But the general rule is if it says "for
21 official use only," you're not allowed to show it to
22 the public with maybe some exceptions; correct?
23 A. Correct.
24 Q. All right. If you would, turn with me to
25 page -- it's Roman Numeral 8-3. The Bates stamp is

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
160
Trial
1 USACE869490.
2 MR. EASTERBY: Oh, your Honor, we would move
3 to admit Joint Exhibit 228 into evidence.
7 evidence.)
8 Q. BY MR. EASTERBY: So, Mr. Thomas, what we're
9 looking at here on page USACE869490 is a discussion
10 of an August 8th, 2017, rainfall event. Do you see
11 that?
12 A. Yes, sir.
13 Q. So that would have preceded Harvey by about
14 three weeks; correct?
15 A. Yes, sir.
16 Q. And it's correct that we had a pretty good
17 storm in these parts in early August, not big enough
18 to get the pool off of government-owned land; is that
19 right?
21 Q. And I believe you testified previously that
22 when Harvey made landfall, all the water that had
23 been collected on or from the August 8th event was
24 gone. The reservoirs were dry and empty?
25 A. They were.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
161
Trial
1 Q. Understood.
2 So turn ahead, if you would, to Roman
3 Numeral 8-5, which is 864492, and this is the
4 discussion of Harvey. And if you look at page Roman
5 Numeral 7-6, there is a figure 3. Do you see that?
6 A. Yes, sir.
7 Q. And figure 3 says, "with versus without
8 project inundation for Houston area projects during
9 Tropical Storm Harvey. This does not include damages
10 from downtown to the ship channel"; correct?
11 A. Correct.
12 Q. It has a legend on the right which says in
13 red "with project condition," in gray "without
14 project condition"; correct?
15 A. Correct.
16 Q. And do you have an understanding as to what
17 that means?
18 A. Yes.
19 Q. What does it mean?
20 A. So they ran the model, or we ran the model
21 once with the dams in place, and then we ran it
22 simulating having removed the dams to try to estimate
23 what it would look like without the project.
24 Q. All right. So if you take the project away,
25 the areas in gray are the areas that your model says

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
162
Trial
1 would have flooded?

2 A. Right.
3 Q. If you keep the model in place, the areas in
4 red are the areas that flooded?
5 A. Right, but the -- to clarify -- actually, for
6 the downstream section there, the areas in red
7 flooded in both cases.
8 Q. Okay. Fair enough.
9 But my point up here is behind the
10 reservoirs, do you see any area in gray?
11 A. No. And, in fact, I believe the way they did
12 this model was they kind of made kind of a
13 make-believe boundary up there, so they didn't
14 actually properly model the upstream condition for
15 the without. They just assumed that it was not
16 inundated.
17 MR. EASTERBY: Your Honor, I object to
18 everything after -- except for "no" -- is not
19 responsive to any question I asked.
20 MR. SHAPIRO: Well, it was responsive. He
21 was answering the question.
22 THE COURT: I'm sorry, Mr. Shapiro. Speak
23 up.
24 MR. SHAPIRO: I'm sorry, your Honor.
25 I was saying it was responsive to the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
163
Trial
1 question that was posed.

2 THE COURT: It was.
3 Q. BY MR. EASTERBY: So, Mr. Thomas, did you
4 participate in the modeling that culminated in figure
5 3?
6 A. I did not.
7 Q. You weren't involved in it?
8 A. Only from seeing the results.
9 Q. Only from seeing the results, which is
10 figure 3; right?
11 A. Right.
12 Q. So based on figure 3, you're telling us you
13 can surmise that the upstream areas weren't properly
14 modeled?
15 A. No. What I was saying is that the way they
16 set up the model, it wasn't to represent the upstream
17 areas for the without. For the with project
18 condition, they were modeled the way they were
19 intended to be done. For the without project, I
20 believe they just assumed that there was no
21 inundation up there, so they assumed it was dry for
22 that project. It was kind of a modeling artifact.
23 Q. And you said "assume." You really don't
24 know, do you, because you weren't involved in the
25 modeling at all and all you can do is look at

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
164
Trial
1 figure 3 like the rest of us?

2 A. Oh, I talked to the people who did the
3 modeling as well.
4 Q. Who did the modeling?
5 A. I believe Mario Beddingfield did that model.
6 Q. Mario Beddingfield, who is in the Galveston
7 District?
8 A. He is.
9 Q. Irrespective of all that, the red area with
10 project condition depicts the extent of the reservoir
11 pool from the impounded runoff; is that right?
12 A. Correct.
13 Q. And this report that's submitted to Congress,
14 at least, says that upstream behind the dams, there's
15 no gray area.
16 A. Right. It would be underneath the red in
17 that case if that were right.
18 Q. Okay. Does this report give a total of the
19 amount of money that was supposedly saved on account
20 of the project being there?
21 A. It does.
22 Q. And what page are you on, Mr. Thomas?
23 A. It's 869495.
24 Q. And it appears that it says that Overall,
25 even with impacts to neighborhoods upstream of the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
165
Trial
1 reservoirs and impacts along the main stem of Buffalo

2 Bayou, it is estimated that Addicks and Barker
3 delivered a combined flood damages prevented of $6.96
4 billion and change; correct?
5 A. Correct.
6 Q. So it's including the upstream neighborhoods
7 in that calculation, is it not?
8 A. It did.
9 Q. So doesn't that mean it would have to net out
10 the damage that was done upstream versus the damage
11 prevented downstream?
12 A. It did.
13 Q. Do you know what the damage to the upstream
14 was?
15 A. I forget the number.
16 Q. But it was calculated?
17 A. It was calculated.
18 Q. So, Mr. Thomas, since it's calculating the
19 damage to the upstream areas, that -- that means the
20 Corps of Engineers has actually gone out and
21 quantified how much damage was caused to the upstream
22 areas on account of that reservoir pool of the runoff
23 that had been held back by the government's project;
24 right?
25 A. Right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
166
Trial
1 Q. Now if you go back one page to Roman Numeral

2 7-7, it's 869494, in the middle of the page, in the
3 paragraph starting, "Barker reservoir exceeded its
4 government-owned storage capacity..."
5 It's the middle paragraph, Matt.
6 So this indicates here that Barker
7 reservoir exceeded its government-owned storage
8 capacity for the first time during the 2016 tax day
9 flood; right?
10 A. Right.
11 Q. So Harvey, or the pool that resulted from the
12 holding back of the Harvey runoff was not the first
13 time that the Barker pool had exceeded
14 government-owned land; correct?
15 A. Correct.
16 Q. And during tax day, if you look up there on
17 Addicks, I believe it indicates that the Addicks
18 reservoir during tax day was around 98 percent full
19 in terms of government-owned land; is that right?
20 Do you know, Mr. Thomas, I think I'm
21 thinking of a different document.
22 Irrespective of that, I don't think that
23 actually says that here, but is it your understanding
24 that in connection with the tax day event, the
25 Addicks pool got to about 98 percent of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
167
Trial
1 government-owned land?
2 A. It was close to that. I don't remember the
3 exact number.
4 Q. Okay. Okay. I'd like to show you what's
5 been marked for identification as PX25.
6 25.
7 A. This is blank, sir.
8 Q. Are you not seeing it?
9 A. It's blank.
10 Q. Oh, it's blank.
11 Here you go, Mr. Thomas.
12 A. Thank you.
13 Q. Okay. PX25 is an October 27th, 2017,
14 memorandum for Commander, Southwestern Division,
15 subject, Addicks and Barker Dams, Houston, Texas, new
16 pool of record.
17 Do you see that, Mr. Thomas?
18 A. Yes, sir.
19 Q. Its Bates page is USACE018669; correct?
20 A. Correct.
21 Q. And you're familiar with this report;
22 correct?
23 A. Correct.
24 Q. You signed it. You're the author of this
25 report; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
168
Trial
1 A. I did sign it.

2 MR. EASTERBY: All right. Plaintiffs would
3 move to admit PX25 into evidence, your Honor.
7 evidence.)
8 Q. BY MR. EASTERBY: Mr. Thomas, the purpose of
9 this report is to do what?
10 A. After every new pool of record, our
11 regulation requires us to go back and evaluate how
12 the projects performed structurally.
13 Q. Mr. Thomas, do you need water?
14 A. I have one, sir.
15 Thank you.
16 Q. And I take it that if there were structural
17 issues, that would be included in the report; right?
18 A. It would be.
19 Q. I mean, you testified earlier that you
20 thought there might have been some risk of dam
21 failure during Harvey. Do you remember that?
22 A. Yes, sir.
23 Q. And if you look at paragraph 2 of Plaintiffs'
24 Exhibit 25, it states, "The overall conclusion is
25 that the project was performing as expected with no

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
169
Trial
1 significant problems during this pool of record

2 event"; right?
3 A. Right.
4 Q. And I've read this thing carefully during the
5 break. I don't see any information in here about
6 there was a risk of dam failure during Harvey. It
7 doesn't say that, does it?
8 A. No, sir.
9 Q. Do you recall that the district issued a
10 press release in late August -- I think it was
11 August 31st -- to dispel some rumors of dam failure?
12 A. I don't remember that specific one, sir.
13 Q. Okay. Irrespective of all that, this
14 memorandum for commander makes no mention of any risk
15 of dam failure; right?
16 A. Right.
17 Q. And when it says it's performing as expected,
18 that means that it's the Corps' expectation when it
19 holds back the amount of runoff it did during Harvey,
20 it's going to submerge private residences; right?
21 A. No, sir.
22 Q. No?
23 When the pool gets beyond the
24 government-owned land limits, you're saying the Corps
25 does not expect it's going to go into people's homes?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
170
Trial
1 A. That's not what I said, sir.

2 Q. You said no.
3 A. So I said, no, that's not what this means.
4 Q. Okay. Well, but irrespective of what this
5 means, it is correct that when an event like Harvey
6 occurs, it is the Corps' expectation that once the
7 pool gets above government-owned land, it's going to
8 be in people's homes; right?
9 MR. SHAPIRO: Well, I'll object. This
10 witness can provide his own personal understanding
11 about that topic in his capacity, but he's not here
12 to speak for the Corps.
13 THE COURT: The objection is overruled.
14 Mr. Thomas, you may answer of your own
15 personal knowledge.
16 THE WITNESS: Can you restate the question
17 please, sir?
18 Q. BY MR. EASTERBY: Right.
19 Well, it's correct that the Corps of
20 Engineers knows and suspects that when its structures
21 hold back a sufficient amount of runoff and the pool
22 gets high enough to get beyond government-owned land,
23 it's going to start submerging people's homes; right?
24 A. Like we talked about earlier, based on the
25 pool level and the elevations of people's homes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
171
Trial
1 Q. All right. So the government does not own

2 any of that private land, does it?
3 A. Any of which land, sir?
4 Q. The private residential land that's adjacent
5 to the government-owned land that we've been talking
6 about for several hours this morning and this
7 afternoon. That land.
8 A. Right.
9 The government owns only the
11 Q. Right.
12 It doesn't own anything beyond that,
13 does it?
14 A. We do not.
15 Q. It doesn't have any flowage or inundation
16 easements beyond that, does it?
17 A. No, sir.
18 Q. It never asked the owners' permission to
19 store impounded runoff on their property, did it?
20 A. I don't think so.
21 Q. The first sentence of Exhibit 25 -- oh, the
22 first sentence of paragraph 2 says, "The embankment
23 outlet structures and emergency spillways functioned
24 as intended"; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
172
Trial
1 Q. And the emergency spillways is referring to

2 the auxiliary spillways we talked about earlier
3 today, the roller-compacted concrete at the ends of
4 dams; right?
5 A. Right.
6 Q. So it's the intent to hold back all that
7 water, even if it means submerging people's homes;
8 correct?
9 MR. SHAPIRO: Your Honor, I object. This has
10 been asked and answered several different ways now.
12 The Court usually applies the
13 three-strike rule.
14 The Court will overrule the objection.
15 THE WITNESS: Could you restate the question,
16 please?
17 Q. BY MR. EASTERBY: As it states here, it's
18 intended that the embankments and the project as a
19 whole hold back the water even if that gets to a
20 point of submerging people's homes; right?
21 MR. SHAPIRO: Well, objection. That's not
22 what this document says, so I --
23 MR. EASTERBY: I'm asking the question.
24 THE COURT: I'm not sure that this question
25 relates to the document itself, Mr. Shapiro.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
173
Trial
1 The question is allowed.

2 THE WITNESS: So is the question related to
3 the document or not, sir?
4 Q. BY MR. EASTERBY: It is just a general
5 question, Mr. Thomas.
6 When you were deposed as a corporate
7 representative or designated representative to bind
8 the United States government, do you remember that
9 we talked about this? And I think you said yes, but
10 the question is again, the Corps of Engineers
11 operates these dams and reservoirs, and intends and
12 knows that as that runoff comes in and it's being
13 held back and impounded, as it goes up, it's going to
14 occupy people's homes; right?
15 A. Like we talked about earlier, based on the
16 elevation of their home and the elevation of the
17 pool.
18 Q. Right.
19 And so when it says here on the document
20 "it functions as intended," part of that is using
21 those homes as part of your storage capacity, isn't
22 it?
23 A. This document is not related to that.
24 Q. But isn't what I just said correct?
25 A. State it again, unrelated to the document for

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
174
Trial
1 me.
2 Q. That when the Corps of Engineers is operating
3 this project to protect downstream, the authorized
4 public purpose, it will make use of people's homes as
5 part of its reservoir area; true?
6 MR. SHAPIRO: Just so I get my second
7 objection in, asked and answered.
9 On the other hand, we'll take one more
10 question along these lines.
11 The objection is overruled.
12 MR. EASTERBY: I don't think I've gotten an
13 answer to it because there has been objections every
14 time along the way, but I'll ask it again.
15 Q. It is correct that this project's public
16 purpose is to use all available storage to protect
17 downstream; right?
18 A. The purpose of the project is to protect
19 downstream.
20 Q. By using all available storage behind the
21 dams?
22 A. Well, I think the "all available storage" is
23 what I'm having a hard time with.
24 Q. And that area includes people's homes, as you
25 saw during Harvey when you flew over in a helicopter.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
175
Trial
1 You saw people's homes submerged by the pool; right?

2 A. I did see homes flooded by the pools.
3 Q. And that's per the Water Control Manual
4 prescribed operations. That wasn't a mistake. It
5 wasn't an accident; right?
6 A. We did follow the manual.
7 Q. So following the Water Control Manual means
8 if you get a storm that's big enough, you will use
9 people's homes as part of the project?
10 A. So there are cases where you follow the Water
11 Control Manual and there is inundation above the
12 dams.
13 Q. Exactly what happened during Harvey; right?
14 A. Yes, sir.
15 Q. And you know what "probable maximum
16 precipitation" means; right?
17 A. Yes.
18 Q. And what does it mean?
19 A. So, essentially that's the worst rainfall
20 that the engineers that are doing calculations think
21 could possibly be generated by the weather, sir, in
22 that region.
23 Q. In that region.
24 The region here being Houston, Texas
25 area off the Gulf Coast; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
176
Trial
1 A. Right.
2 Q. Do you know what the probable maximum
3 precipitation is for this federal project?
4 A. I believe the average is around 43, 44
5 inches.
6 Q. So Harvey rainfall was around 35 inches?
7 A. Right.
8 Q. Meaning that the Harvey rainfall was
9 substantially less than the probable maximum
10 precipitation for this project; correct?
11 A. It was less than the PMP.
12 Q. If you go to page 1 of this report on
13 performance, last paragraph, it says in the middle
14 part, "Additionally, government-owned land upstream
15 extends only to reservoir levels of elevation 103
16 feet and elevation 95 feet for Addicks & Barker dams
17 prospectively"; right?
18 A. Yes, sir.
19 Q. Because many local streets and residential
20 houses upstream of the reservoirs were flooded;
21 right?
22 A. Right.
23 Q. And when it says "were flooded," it's
24 referring to being inundated by the runoff that's
25 been held back by the federal project; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
177
Trial
1 A. It is.
2 Q. If you turn to page 7 of this report in
3 figure 6, you'll see a caption that says,
4 "uncontrolled release at the north Addicks emergency
5 spillway"; correct?
6 A. Correct.
7 Q. And it looks like it's a pretty sunny day
8 when that picture is taken.
9 A. It was.
10 Q. So that is a depiction of the flows that
11 flanged around the auxiliary spillways on the
12 northern end of Addicks; right?
13 A. It is.
14 Q. So is that a fair representation of what
15 those flows looked like?
16 A. Yes, sir.
17 I think that was probably towards the
18 lower end of it, but...
19 Q. Okay. Page 9, Piezometer Measurements. It
20 states, "the results generally presented regular
21 responses to the rising pool and no sudden or
22 unusual rises were recorded throughout the event";
23 correct?
24 A. Correct.
25 Q. And what do the piezometers measure?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
178
Trial
1 A. They measure water in the ground.

2 Q. Would that cover seepage through the
3 embankments?
4 A. Yes, sir.
5 Q. So overall, as stated in this document, the
6 dams functioned as intended during the Harvey event?
7 A. Following is the intent of this document.
8 THE COURT: I have a technical question.
9 May I interrupt?
10 Piezometer measures the saturated level of
11 water in the ground; is that correct?
12 THE WITNESS: Right.
13 Essentially it is a pipe in the ground,
14 and it's measuring high how the water is in the pipe.
15 THE COURT: Right.
16 Q. BY MR. EASTERBY: And it's correct at all
17 times during Harvey, the Corps followed the Water
18 Control Manual; right?
19 A. With the exception of the -- a deviation from
20 the drawdown plan.
21 Q. And that would have occurred in early
22 September of 2017; right?
23 A. Right.
24 Q. It would have had no effect on the pool
25 levels that were behind the reservoirs; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
179
Trial
1 A. Right, in terms of the maximum.

2 Q. As I understood it, Mr. Thomas, that's a
3 function of -- I think right now even the Corps is in
4 the process of replacing the outlet works at both
5 dams; is that correct?
6 A. We are.
7 Q. And so during Harvey, after August 30th,
8 there were some current -- concerns about the
9 existing outlet structures, and I think you all had
10 to do a deviation; is that right?
11 A. The deviation was more about clarifying how
12 you change on the release end, so we had water on the
13 toe of the downstream embankment, and we didn't want
14 to close the gates and have a failure of the dam, so
15 we made a plan to slowly close them. It is not well
16 addressed in our control manual, so we had to lay out
17 a plan to address the issues.
18 Q. But just to be clear, it would have no impact
19 on the elevation of the pools on or about August
20 30th, 2017; right?
21 A. That's right.
22 Q. Okay. I'd like to show you what's been
23 identified as Upstream 947.
24 Okay. Your Honor --
25 Thank you.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
180
Trial
1 947 is a document Bates-stamped

2 USACE150445; correct?
3 A. Correct.
4 Q. Its title is Barker Reservoir Flooded Areas
5 Appraised Market Values, 2017, Hurricane Harvey,
6 2017; correct?
7 A. Correct.
8 Q. And is it your understanding that this was
9 something prepared by the Corps of Engineers?
10 A. I don't remember this one.
11 Q. You see the Bates stamp so you know who
12 produced it; right?
13 A. I do.
14 Q. And as we saw in that annual report, we know
15 that it was necessary to try to quantify the damages
16 done to the upstream areas; right?
17 A. Right.
18 Q. And that's something that would have been
19 done in the ordinary course of the Corps' business,
20 that quantification of the upstream damage?
21 A. The flood damage preventative analysis, it is
22 an annually occurring report.
23 Q. And that would have to include the damage
24 done to the upstream areas to net it out like we
25 talked about earlier; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
181
Trial
1 A. It would.
2 MR. EASTERBY: Okay. Your Honor, we would
3 move to admit Upstream 947.
4 MR. SHAPIRO: Objection; lack of foundation.
5 THE COURT: You could lay a little more
6 foundation for this.
7 Actually, it would help to know exactly
8 when this was prepared.
9 MR. EASTERBY: It would. It's not dated.
10 Q. Mr. Thomas, it's fair to say this must have
11 been prepared after Harvey?
12 A. I would assume. I don't know when this was
13 prepared.
14 Q. And after -- well, I mean it strikes me as
15 highly unlikely it would have been prepared prior to
16 Harvey; right?
17 A. That seems reasonable.
18 Q. And as we discussed, the Corps' customary
19 practice is to create these kind of assessments of
20 damage as part of the report it sends to Congress;
21 right?
22 A. I don't remember seeing one that looked like
23 this.
24 Q. Have you seen others?
25 A. Right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
182
Trial
1 The spreadsheet that I gave you is the

2 one that I've seen.
3 Q. The spreadsheet that you gave me in the last
4 deposition.
5 A. Okay.
6 Q. Notwithstanding that, there is somebody
7 within Galveston District that does this kind of work
8 that prepares these kinds of damage assessments?
9 A. So generally something like this would be a
10 joint effort between real estate and our H & H group,
11 but like I said, this also could have been an output
12 from the flood damage prevented, that analysis that
13 we did.
14 Q. When you say H & H, that's water control;
15 right?
16 A. They are in the same office.
17 Q. Is water control and hydrology and hydraulics
18 different sections?
19 A. So at the time of Harvey, we had one H & H
20 branch, and water control was a function in there.
21 It wasn't a separate section.
22 Q. And that's a section that you used to be the
23 head of; right?
24 A. Right.
25 Q. And so in the past, you were part of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
183
Trial
1 preparing flood damage assessments for prior events

2 like tax day; right?
3 A. Right.
4 Q. So you know what goes into it and how it's
5 done. You're familiar with the process; right?
6 A. Yes. However, this process we didn't ever do
7 before, because we never had pools that high before.
8 Q. Indeed.
9 So is the process generally to have an
10 assessment of the value of the various homes and
11 structures, and then to correlate that with the depth
12 of flooding?
13 A. Generally, but like I said, I don't remember
14 this output.
16 admit Upstream 947.
17 I think he's familiar with it, with the
18 process, the methodology, and it's something done in
19 the ordinary course of their business. It was
20 produced by them. We ask that it be admitted.
23 This witness has testified that he
24 doesn't know the date of this. This witness has
25 testified he doesn't know the source of this, what

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
184
Trial
1 office prepared it. He testified that he doesn't

2 recognize the form that it's in. He's testified that
3 he does not recognize this document and may not have
4 seen it before. There may be another witness that
5 could testify about this document, but this witness
6 lacks the foundation to testify about it.
7 THE COURT: The Court has a quick question or
8 so.
9 Mr. Thomas, why don't you recognize the
10 form? What is unusual about it in your view?
11 THE WITNESS: So usually we'll have an
12 excel -- the only one I've seen is an excel table and
13 it just wasn't broken out like this. So it's
14 possible they could have used that data to break out
15 and make others tables. It's totally possible, I
16 just don't know for sure. The other form has similar
17 kinds of data in it, so we could use that.
18 THE COURT: The Court will reserve on the
19 admissibility of this document.
20 Q. BY MR. EASTERBY: All right. Well,
21 notwithstanding that, for Barker, it has 3,040
22 residences inundated with a total value of over a
23 billion dollars; correct?
24 A. That is what it says.
25 Q. And then if you go down a little bit, it says

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
185
Trial
1 commercial properties, $14,082 million; correct?

2 A. It does.
3 Q. And that would be the total value of those
4 structures; right? That's what's being indicated
5 here?
6 A. I would have to guess that based on what the
7 document says.
8 Q. Well, if you go down, it says total by depth
9 of inundation; right?
10 A. It does say that.
11 Q. And it has in the first portion, folks that
12 had less than one foot of flooding, residential,
13 1,715; right?
15 Q. Total damage over 608,661,716; correct?
16 MR. SHAPIRO: I object, your Honor. That
17 characterization of this document was incorrect. He
18 just referred to it as damage. That's not what this
19 document says.
20 THE COURT: It refers to value rather than
21 damage.
22 The Court will sustain that objection.
23 Q. BY MR. EASTERBY: Okay. Let's just
24 fast-forward to the bottom line, Mr. Thomas.
25 Bottom line, Barker reservoir total is

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
186
Trial
1 over a billion dollars as reflected in this document;

2 correct?
3 A. It looks like it's indicating that the
4 appraised value within that footprint might be a
5 billion dollars.
6 Q. Let's just approach it this way: I heard in
7 opening the government's lawyer say that the upstream
8 flooding wasn't that severe. Did you hear that?
9 MR. SHAPIRO: Your Honor, I'm sorry to keep
10 jumping up, but that mischaracterizes my opening. I
11 said it was not legally severe.
12 THE COURT: Sustained.
13 Q. BY MR. EASTERBY: Well, it looked severe when
14 you were flying around it in a helicopter, didn't it?
15 A. You think when you're in a helicopter, any
16 house under water looks bad.
17 Q. Have you ever had your home flooded?
18 A. My parents' home was flooded.
19 Q. How much water did they get in their house?
20 A. Ten feet.
21 Q. Ten feet. Did you go see it after it had
22 been flooded?
23 A. I did.
24 Q. Did you help them muck it out and rip out all
25 the drywall?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
187
Trial
1 A. I did.
2 Q. Very substantial damage; correct?
3 A. In that case.
4 Q. In that case.
5 And I take it you'd agree with me that
6 people that have structure flooding suffer
7 substantial damage to their structure; right?
8 A. I think it depends.
9 Q. It depends on what?
10 A. How much flooding, how long, the type of
11 structure, condition.
12 Q. Well, let's say it's somebody that has a, I
13 don't know, a foot of water in there for five days.
14 That's substantial damage, isn't it?
15 A. I'm not sure if I know the definition of
16 substantial.
17 Q. A lot.
18 A. I wouldn't call it a lot.
19 Q. You would call that kind of flooding I just
20 described as a lot of damage; right?
21 A. Personally, not in my capacity with the Corps
22 of Engineers.
23 Q. Does the Corps of Engineers have some kind of
24 definition for what substantial damage is?
25 A. So, for example, we use depth damage curves,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
188
Trial
1 and so those do represent depths related to the

2 amount of damage the property has.
3 Q. Now, after you finished that helicopter ride,
4 you came back and you sent out an e-mail on August
5 30th. Do you remember that?
6 A. I did send an e-mail on August 30th.
7 Q. Do you remember sending out an e-mail stating
8 that you thought it was a good idea to seek federal
9 funding to buy all of the property in the Addicks and
10 Barker reservoirs and in the surcharge corridor?
11 A. I do.
12 Q. And when you refer to the surcharge corridor,
13 what were you talking about?
14 A. Anywhere downstream that had inundation from
15 our surcharge releases.
16 Q. And I take it that you wrote that believing
17 that that would be a good idea to secure the funding
18 to buy all of the property in the Addicks and Barker
19 reservoirs; right?
20 A. Or to find some other solution that would
21 achieve the same goal.
22 Q. And when you talk about the Addicks and
23 Barker reservoirs, you're talking about the area that
24 is subject to being inundated by that runoff that's
25 being held back; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
189
Trial
1 A. I was.
2 Q. And is the current Buffalo Bayou and
3 Tributaries project exploring the possibility of
4 buying out that land or doing something to decrease
5 or reduce or eliminate the risk these people face of
6 having their homes flooded by that impounded runoff?
7 A. It is.
8 Q. And what is the estimated date of completion
9 for that report?
10 A. I'm guessing a year and a half, two years
11 from now.
12 Q. Mr. Thomas, do you know whether in the
13 history of this project the Corps of Engineers has
14 ever asked Congress for funding or authorization to
15 buy all of the property in the Addicks and Barker
16 reservoirs?
17 A. I believe so.
18 Q. You believe they have?
19 A. I believe I know the answer.
20 Q. What's the answer?
21 A. As far as I know they have not.
22 Q. They have never asked for that authorization,
23 have they?
25 Q. Okay. Mr. Thomas, what I'd like to do now is

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
190
Trial
1 we've talked about Harvey. I would like to go back

2 to the 1940s period to when this project was created;
3 all right?
4 When I deposed you, I recall you had
5 prepared a word document that had some screen shots
6 and things on it. It talked about the history of the
7 dams and these projects. Do you recall that?
8 A. Yes, sir.
9 Q. And I say that because I'm trying to save
10 some time, candidly, and not have to mark too many
11 exhibits, but you're familiar with the original
12 project plan for this federal project; right?
13 A. Right.
14 Q. Okay. So back in the '40s, the overall
15 project had many elements besides just the Addicks
16 and Barker reservoirs; correct?
17 A. Correct.
18 Q. You know what? I fear I have to mark these
19 anyway to make my record.
20 So Mr. Thomas, I'd like to show you
21 what's been marked for identification as Upstream 70,
22 and I have to believe this is a Joint exhibit as
23 well; 5, Joint Exhibit 5.
24 Okay. Mr. Thomas, Joint Exhibit 5 is a
25 document dated June 1st, 1940, entitled Definite

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
191
Trial
1 Project Report; correct?

2 A. Right.
3 I'll add that it's also labeled
4 "construction drafting section" at the bottom.
5 Q. Is there any significance to a construction
6 drafting section?
7 A. There is another one that looks just like
8 this that has a different title at the bottom.
9 Q. Understood.
11 Joint Exhibit 5.
15 evidence.)
16 Q. BY MR. EASTERBY: So if you turn to page 12
17 of the Exhibit, paragraph 24 talks about what the
18 project plan has for its principal features, and it
19 lists nine different elements; correct?
20 A. Right.
21 Q. And of those nine, how many were actually
22 built?
23 A. Three.
24 Q. Which are those?
25 A. The Addicks dam and reservoir, the Barker dam

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
192
Trial
1 and reservoir, and the bypass channel downstream.

2 Q. So the twin reservoirs, which are item E, are
3 one of the nine; correct?
4 A. That's a different plan.
5 Q. So that's one, and then the bypass channel,
6 which one is that, Mr. Thomas?
7 A. I think that's F.
8 Q. F?
9 A. I think. I think that's right.
10 Q. I see.
11 And the idea was that there would be
12 channel rectification on Buffalo Bayou for those
13 first 7-1/2 miles, and then there would have been a
14 south canal that would pick up and divert all those
15 flows into the ship channel; right?
16 A. I think it went to the bay, but right.
17 Q. The bay.
18 And that south canal was supposed to
19 have capacity of 18 to 20,000 cubic feet per second;
20 right?
21 A. I forget the number, but sufficient to carry
22 all the surcharge releases.
23 Q. But the south canal was not built; is that
24 right?
25 A. That's right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
193
Trial
1 Q. And also not built was item D, the levy north

2 of Katy, Texas to prevent overflow from the mound in
3 Cypress Creek basin into the Addicks reservoir;
4 right?
5 A. Right.
6 Q. That would have addressed this phenomenon
7 where the Cypress Creek watershed water comes into
8 the Addicks watershed; right?
9 A. Right.
10 Q. And so the original design of the reservoirs
11 and dams were based on all nine of these elements
12 being built; correct?
13 A. Say it again?
14 Q. The original design of these reservoirs was
15 based on all nine of those elements we just talked
16 about being built.
17 A. That's not exactly correct.
18 Q. What's incorrect about it?
19 A. So you could have built the White Oak
20 reservoir with very little impact on the Addicks and
21 Barker Reservoirs.
22 Q. Fair enough.
23 So, really, it's the Cypress Creek levy,
24 the south canal, and I think there was an
25 interception dam down there where the south canal

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
194
Trial
1 picked up?
2 A. Right.
3 Q. And that would be to address if there were
4 too many flows, that interception canal would slow
5 everything down into the south canal to divert those
6 flows into the bay; right?
7 A. I think that's right.
8 Q. And it's correct that in the same time period
9 in the '40s, the Corps of Engineers did some analysis
10 to come up with the design storm for the Addicks and
11 Barker reservoirs; right?
12 A. Correct.
13 Q. And the design storm was the 1899 storm that
14 occurred in Hearne, Texas; right?
15 A. Right, with some modifications to it.
16 Q. And so the Hearne storm generated something
17 like 31-1/2 to maybe 34-1/2 inches of rainfall in
18 about three days; correct?
19 A. Is that what it says?
20 Q. Let me tell you what. Let me hand you what's
21 been marked as Plaintiffs' Exhibit 1075, which I'm
22 also sure is a Joint exhibit.
23 It's not. Okay.
24 So we need to get PX 1075. I'll tell
25 you what. Let me see if I can find it in a different

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
195
Trial
1 document.
2 Let's try Plaintiffs' Exhibit 776.
3 Joint 7, okay.
4 Thank you. I apologize for the exhibit
5 issues.
6 Okay. So Plaintiffs' Joint Exhibit 7 is
7 a document entitled Buffalo Bayou, Texas Definite
8 Project Report. Do you see that?
9 A. Yes, sir.
10 Q. Mr. Thomas, dated June 1st, 1940, on the
11 bottom right; correct?
12 A. Correct.
13 MR. EASTERBY: We would move to admit Joint
14 Exhibit 7 into evidence.
15 THE WITNESS: You might need to -- this also
16 says drawings to accompany, but that's what this is,
17 just the drawings.
18 Q. BY MR. EASTERBY: I'm sorry, what was that?
19 A. The part of the title is drawings to
20 accompany the Definite Report.
21 Q. Right. Okay. Let's --
22 And you're familiar with this document,
23 Mr. Thomas?
24 A. Yes.
25 Q. All right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
196
Trial
1 MR. EASTERBY: We would move to admit Joint

2 Exhibit 7.
6 evidence.)
7 Q. BY MR. EASTERBY: Okay. Let's turn ahead to
8 plate 13, it's USACE010165; correct?
9 Matt, don't zoom in that much, zoom in
10 from kind of here, right there.
11 Mr. Thomas, you're familiar with this
12 visual depiction of the project plan; correct?
13 A. Correct.
14 Q. So what was intended was to have the Cypress
15 Creek levy up here to prevent the overflow from that
16 watershed; right?
17 A. Right.
18 Q. You would have the improved portion of
19 Buffalo Bayou here; right?
20 A. Right.
21 Q. Was it -- was it actually improved all the
22 way down to where the interception dam was supposed
23 to be?
24 A. I forget the exact limits of where it
25 stopped.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
197
Trial
1 Q. Okay. Interception dam here, then you would

2 have a south canal to convey the flows from Addicks
3 and Barker into the bay; right?
4 A. Right.
5 Q. This Cypress Creek levy never got built;
6 right?
7 A. Right.
8 Q. This interception dam never got built; right?
9 A. Right.
10 Q. And this south canal never got built.
11 A. Right.
12 Q. As you noted before, these things are really
13 addressing the different watersheds, so time is of
14 the essence, and I'll just skip those, but it's
15 correct that the design of the reservoirs was
16 premised on having it be able to release 18,000 cubic
17 feet per second of water whenever it was impounding
18 runoff; right?
19 A. About that.
20 Q. And in the original design and construction,
21 how many of the outlet structures were actually
22 gated?
23 A. The original design, one of the five had
24 gates.
25 Q. On each?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
198
Trial
1 A. On each.
2 Q. And why was one of the five gated, if you
3 know?
4 A. My understanding is it was for emergency
5 purposes to provide some additional conveyance in the
6 event one of the others was clogged.
7 Q. Okay. Let's turn ahead to plate 66,
8 USACE010218.
9 Okay. Zoom in for me, Matt, if you
10 would, on Addicks, and then we'll do Barker, because
11 they are kind of hard to see.
12 Okay. So Mr. Thomas, you can see here
13 that there is this line that goes around, and then it
14 says, "1935 storm plus three feet elevation 104.4";
15 correct?
16 A. Correct.
17 Q. And that was the area that was to be acquired
18 by the federal government for the purposes of storing
19 that impounded runoff; correct?
20 A. Correct.
21 Q. I think it's referred to as the guide taking
22 line. Have you heard that expression before?
23 A. That is one term for it.
24 Q. But in actuality, if you look at government
25 land today, it doesn't look like this, does it? It's

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
199
Trial
1 straighter. It's got 90-degree corners and things

2 like that?
3 A. It is, and it's higher.
4 Q. It's higher in terms of elevation?
5 A. I believe so.
6 Q. What makes you say that?
7 A. Well, this is the 1940 report.
8 Q. Oh, you're referring to the fact that they
9 acquired more land in Addicks after the Cypress Creek
10 levy was not built?
12 Q. Okay. Matt, pull back and show me Barker.
13 This also has the guide taking line, the
14 1935 storm plus three feet elevation 98.3; right?
15 A. Right.
16 Q. And that one did not change.
17 A. It did not.
18 Q. So the 1935 storm was the basis for land
19 acquisition initially for both reservoirs; correct?
20 A. It was.
21 Q. And the 1935 storm produced what, about 15
22 inches of rainfall?
23 A. Yes, sir.
24 Q. So you've got a design storm, which is the
25 Hearne storm, which has 31-1/2 or 34 inches of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
200
Trial
1 rainfall, and you've got the 1935 rainstorm which has

2 about 15. Why would not the government acquire all
3 the way to the design storm, the Hearne storm?
4 A. I'm thinking the Hearne was actually a little
5 bit lower over these watersheds. I thought it was
6 closer to 30, but...
7 Q. Okay. But whatever it is, do you know why
8 there was a decision made back then to only acquire
9 land of the '35 storm plus three feet, as opposed to
10 the design storm?
11 A. So the 1940 report does say that the
12 intention was because of the use of the land that
13 they would acquire, they made that decision for the
14 guide taking line.
15 Q. I didn't understand your answer. Can you
16 expand on that a little bit?
17 A. I believe the report says that they
18 characterized that the type of land, and they made a
19 decision based on land use related to the risk, and
20 set that as the guide taking line.
21 Q. Meaning that the expected damages of
22 inundating pastures and rice fields were going to be
23 less than the savings associated with having to buy
24 all that extra land; true?
25 A. Right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
201
Trial
1 Q. Okay. Let's turn ahead to plate 67, which is

2 the next page.
3 Mr. Thomas, this one I believe shows a
4 contour of the design storm, which is the Hearne
5 storm, and you said 108.3?
6 A. Right.
7 Q. And it looks like back then that even the
8 design storm would have been contained behind the
9 embankments; right?
10 A. How do you mean?
11 Q. Well, it wouldn't have gone around the
12 spillways.
13 A. That's right.
14 Q. And then you see in the middle there's the 35
15 storm plus 50 percent pool elevation of 105.4;
16 correct?
17 A. I should also clarify that there were no
18 spillways in 1940 at the ends of the dams.
19 Q. Exactly; right?
20 The original design premise was no water
21 goes over the embankments anywhere; correct?
22 A. Right.
23 Q. Or around; right?
24 A. Right.
25 Q. Because that would -- that would create a

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
202
Trial
1 very serious risk of dam failure; correct?

2 A. Right.
3 Q. And that was the problem that was being
4 addressed in the '70s, like we talked about this
5 morning; right?
6 A. Right.
7 Q. Okay. And then the last thing we see is the
8 '35 storm at 101.4; correct?
9 A. Right.
10 Q. But it's your understanding that the basis of
11 land acquisition was the '35 storm, plus three feet
12 of freeboard; correct?
13 A. Correct.
14 Q. What is freeboard?
15 A. It's a vertical allowance above pool level.
16 Q. And what's the purpose of having a vertical
17 allowance above the pool level?
18 A. Uncertainty.
19 Q. Uncertainty, wave action, run-up, things can
20 happen if it's a windy day, you get some chop and
21 that can increase the water level with it; right?
22 A. Right, as well as uncertainty in the
23 hydraulic balances on the hydraulic map.
24 Q. Okay. I'd next like to show you what's been
25 marked for identification as Upstream 777.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
203
Trial
1 This is a September 1945 document

2 entitled "Buffalo Bayou, Texas Flood Control
3 Projects, Houston, Texas, Addicks, Analysis of
4 Design"; correct?
5 A. Correct.
6 Q. And I take it this is a document you reviewed
7 in the past and are familiar with it?
8 A. Yes, sir.
9 MR. EASTERBY: We would move to admit
10 Plaintiffs' Exhibit 777 into evidence.
14 evidence.)
15 Q. BY MR. EASTERBY: So Mr. Thomas, turn with
16 me, if you would, to USACE010324. And if you look at
17 1-04 Selection of Site, it states, "In the
18 preparation of the Definite Project Report it was
19 determined that the entire watershed above the
20 confluence of South Mayde and Buffalo Bayou must be
21 controlled, and that it was more economical to build
22 two dams than one." Do you see that?
23 A. Yes, sir.
24 Q. And that controlling of the watershed above
25 the confluence of South Mayde Creek and Buffalo Bayou

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
204
Trial
1 is referring to the Addicks watershed, and at this

2 point, part of the Cypress Creek watershed; correct?
3 A. Right.
4 Well, you mentioned Barker, too?
5 Q. I mentioned Barker, too?
6 A. Did you?
7 Q. I did not.
8 This is an Addicks document.
9 A. I thought this was talking about all three.
10 Q. Well, it's relating to the analysis that was
11 done for Addicks.
12 A. It is, but this says, "In the preparation of
13 the Definite Project Report," so I'm not sure if they
14 mean all three or two.
15 In Addicks, it means two.
16 Q. Okay. If you look back one page, 2-04,
17 design storm runoff, the A factor --
18 Matt, I think you're on the wrong page.
19 It's page 6, USACE010329.
20 Okay. It says, "In estimating runoff...
21 in estimating the runoff from the design storm, which
22 had a maximum depth of 31.4 inches, and an average
23 depth of 29.6 inches, a factor of 90 percent was
24 assumed"; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
205
Trial
1 Q. And Mr. Thomas, do you have an understanding

2 as to why that was done?
3 A. I can guess.
4 Q. Well, I don't want you to guess, it's just
5 whatever is in the documents at this point.
6 A. Let me take a look.
7 So what it says is this high runoff
8 factor was selected to allow for the possibility of a
9 period of general rainfall preceding the design
10 storm.
11 Q. Right.
12 So if it rains before the storm, you're
13 going to have more runoff; right?
14 A. You could.
15 Q. And it rained before Harvey, didn't it? Do
16 you remember the August 8th, 2017, the thing we
17 looked at in the annual report?
18 A. Right.
19 Q. Right.
20 So when the ground is already saturated,
21 you expect to see more runoff; correct?
22 A. You could, but I'm -- I don't know
23 specifically how saturated it was when Harvey landed.
24 Q. Sure, but irrespective of that, the Corps of
25 Engineers was obviously aware that if there had been

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
206
Trial
1 prior rain, you'll have more runoff as attested to in

2 this document from way back in 1940; right?
3 A. Right.
4 MR. SHAPIRO: Well, I have to object. I
5 don't know that that's what this statement says. So
6 I think it mischaracterizes the document.
7 MR. EASTERBY: Your Honor, he literally just
8 said that. It was selected to allow for a
9 possibility of a period of general rainfall preceding
10 the design storm.
12 Q. BY MR. EASTERBY: And then it says down a
13 little bit further in that same paragraph that they
14 included inflow from the Cypress Creek watershed;
15 correct?
16 A. It does say it's included in this document.
17 Q. Let's go to plate 1 map, USACE010365.
18 So this is an updated project location
19 map, and as you can see here, the Cypress Creek levy
20 is gone; right?
21 A. The Cypress Creek levy is gone.
22 Q. And you see this Addicks reservoir drainage
23 area, this entire watershed; right?
24 A. Right.
25 Q. All that water drains down here; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
207
Trial
1 A. It does drain in that direction.

2 Q. And as we saw in the prior document, the
3 government selected this site because it wanted to
4 control that entire watershed; correct?
5 A. That's what the document said.
6 Q. I mean you have no reason to dispute what
7 those historical documents say, do you?
8 A. I do not.
9 Q. And you're aware that in or around '52, the
10 Corps of Engineers reported to Congress that they
11 would like to acquire some additional land in Addicks
12 on account of the Cypress Creek levy not being built;
13 right?
14 A. I don't know the date.
15 Q. But it did happen.
16 A. It did happen at some point.
17 Q. Okay. Now, the conduits were gated in the
18 '60s; right?
19 A. The remaining two conduits at each outlet was
20 gated in the '60s.
21 Q. The remaining two or the remaining four?
22 A. The remaining two.
23 Q. I thought you said only one of them was gated
24 initially?
25 A. In the 1940s.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
208
Trial
1 Q. I'll tell you what, just take us through,

2 chronologically, very briefly, when the conduits were
3 gated.
4 A. So Barker was constructed with just one of
5 the five conduits gated, really for emergency
6 purposes, like we talked about. By the end of the
7 construction of Barker, and kind of towards the end
8 of Addicks, there was already some flooding
9 downstream, and they realized they weren't going to
10 build the south canal. So they went ahead and gated
11 two additional conduits by early '50s, late '40s.
12 And that left three conduits gated, two ungated, and
13 then in 1961/62, they gated the remaining conduits on
14 this job.
15 Q. Okay. Mr. Thomas, I'd like to show you
16 what's been marked for identification as Upstream
17 706, Joint Exhibit 15. This is a June 30th, 1960 --
18 MR. SHAPIRO: If we could have a minute.
19 MR. EASTERBY: I'm sorry. Am I ahead of
20 everybody?
21 Q. This is a June 30th, 1960 report on the
22 feasibility of gating the uncontrolled conduits at
23 Barker and Addicks; correct?
24 A. Correct.
25 Q. And you're familiar with this document?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
209
Trial
1 A. I have read it, but it's been a while.

2 Q. You have read it, but it's been a while?
3 A. Yes, sir.
4 MR. EASTERBY: All right. We would move to
5 admit Joint Exhibit 15.
9 evidence.)
10 Q. BY MR. EASTERBY: Okay. So I take it the
11 point of this document was to address the feasibility
12 of gating the conduits; right?
13 A. Say it again.
14 Q. The point of this was, just like the title
15 says, is to address the feasibility of gating the
16 uncontrolled conduits; right?
17 A. Right.
18 Q. Okay. So turn with me, if you would, to the
19 page that's table 3, USACE000397. It says,
20 "pertinent data/existing conditions."
21 And just zoom in here in the middle
22 part, please, Matt.
23 Okay. So I see here we've got an entry
24 for maximum design water surface; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
210
Trial
1 Q. And that elevation is 113.8 feet for Addicks,

2 104.8 feet for Barker; correct?
3 A. Correct.
4 Q. And I should note for the record that I
5 believe this is a different datum than what we saw in
6 the Water Control Manual and the Emergency Action
7 Plan. I think this is MSL. Is that your
8 understanding?
9 A. Yes, sir.
10 Q. Which is just mean sea level?
11 A. Yes, sir.
12 Q. Okay. So if you look at the government-owned
13 land limit, you can see that the maximum design water
14 surface is greater than the government-owned land;
15 correct?
16 A. Correct.
17 Q. And we see there's a standard project flood
18 entry for Addicks 104, for Barker 96.7; right?
19 A. Right.
20 Q. So back then, the government-owned land was
21 sufficient to contain the standard project flood;
22 right?
23 A. Right.
24 Q. When did that stop being the case for Addicks
25 and Barker, Mr. Thomas, if you know?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
211
Trial
1 A. I think after the '77 hydrology report.

2 Q. After the '77 hydrology report came out, the
3 Corps realized that there was inadequate
4 government-owned land to contain the impounded runoff
5 from a standard project flood; right?
6 A. I think that's right.
7 Q. Okay. Let's turn to page 44, USACE000437.
8 And let's go down to summary of
9 conclusions, please.
10 It says, "Even the installation of
11 additional gates for these dams for the sole purpose
12 of regulating the outflow, without creating permanent
13 pools, would have more undesirable effects than
14 benefits"; correct?
15 A. Correct.
16 Q. So I read this to say the Corps'
17 recommendation was do not gate the remaining ungated
18 conduits. Do you read it the same way?
19 A. So, on the next page, it does say that in
20 view of the foregoing disadvantages of gating the
21 uncontrolled conduits of either Addicks -- I'm sorry,
22 Barker or Addicks Reservoirs, it does not appear
23 desirable to gate these uncontrolled conduits.
24 Q. And it concludes with, "Accordingly, it is
25 recommended that the present uncontrolled conduits of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
212
Trial
1 Barker and Addicks reservoirs not be gated"; right?

2 A. Right.
3 Q. But they were anyway; right?
4 A. They were.
5 Q. And that was because the project's purpose is
6 to protect downstream; right?
7 A. There is another report that lays out the
8 purpose.
9 Q. Okay. It's Upstream 1548. It's probably the
10 next document in your binder, Mr. Thomas.
11 A. It is.
12 MR. EASTERBY: May I approach the witness,
13 your Honor, just to see if it's --
14 THE WITNESS: That's not it. There is
15 another one, I think, that also lays it out.
16 Q. BY MR. EASTERBY: Okay. I'll tell you
17 what --
18 A. It might say it in here.
19 Q. Okay. Irrespective of that, they were gated;
20 correct?
21 A. They were gated.
22 Q. And then I think you just had it, and it's
23 Joint Exhibit 16, the 1962 Addicks Reservoir
24 Regulation Manual; right?
25 A. Right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
213
Trial
1 Q. And you're familiar with this document,

2 Mr. Thomas?
3 A. Yes, sir.
4 MR. EASTERBY: We move to admit Joint Exhibit
5 16.
9 evidence.)
10 Q. BY MR. EASTERBY: So I believe this was the
11 second iteration of the reservoir regulation manual
12 for these two dams and reservoirs. Is that also your
13 understanding?
14 A. I think there's another one out there.
15 Q. Okay. Well, I saw one from '55, and then I
16 saw this one, but it probably doesn't matter. Let's
17 continue through this very quickly.
18 On page 23, USACE011656 --
19 So the original, or the reservoir
20 regulation procedures in this manual say, "When
21 general rains occur on the Buffalo Bayou watershed
22 below the reservoir is in excess of 4 inches in 24
23 hours, the gates in both dams will be completely
24 closed and kept under hourly surveillance"; right?
25 A. Yes, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
214
Trial
1 Q. So back then, to trigger closing the gates,

2 there would have had to have been 4 inches of rain in
3 one day on the Buffalo Bayou watershed, which is
4 below the dam; correct?
5 A. Correct.
6 Q. And obviously that's different today; right?
7 Y'all close it even before the rain comes in some
8 instances.
9 A. Sometimes.
10 Q. Go with me to page 29, USACE011662.
11 Okay. It says, "Percent of available
12 storage required to regulate floods. For the
13 standard project flood, in December 1935,
14 approximately 40 percent of the available storage is
15 used in Addicks, and 40 percent -- 41 percent in
16 Barker"; correct?
17 A. Correct.
18 Q. So, again, back then there was adequate
19 capacity to contain a standard project flood in both
20 reservoirs.
21 A. Correct.
22 Q. Okay. Mr. Thomas, I'm going to turn now to
23 the 1966 period.
24 I'd like to show you what's been marked
25 for identification as Plaintiffs' Exhibit 34.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
215
Trial
1 Okay. Plaintiffs' Exhibit 34 is called

2 ER405-2-150, change 3, dated January 24th, 1969. Do
3 you see that?
4 A. Say it again.
5 Q. ER405-2-150, change 3, dated January 24th,
6 1969; right?
7 A. Right.
8 Q. You're familiar with this document, are you
9 not?
10 A. Yes, sir.
11 Q. And this document is an internal Corps of
12 Engineers engineering regulation addressing reservoir
13 projects land to be acquired in fee; right?
14 A. Right.
15 MR. EASTERBY: We'd move to admit Plaintiffs'
16 Exhibit 34 in evidence, your Honor.
20 evidence.)
21 Q. BY MR. EASTERBY: So for reservoir projects
22 land to be acquired in fee, "one, lands necessary for
23 the dam site construction areas and permanent
24 structures"; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
216
Trial
1 Q. And then it talks about the lands below a

2 guide taking line established, and it talks through
3 some things, and it's referred to in this paragraph
4 as the "full pool elevation." Do you see that?
5 A. Correct.
6 Q. If you go down to the bottom, it says, "The
7 upper level of fee taking will normally be at least
8 equal to the top elevation of spillway gates or crest
9 elevation of ungated spillway, and may exceed this
10 elevation if necessary to conform with other criteria
11 prescribed herein." Right?
13 Q. And that's in the context of a high level
14 spillway, the crest of which for a conduit
15 construction is substantially higher than the storage
16 elevation required to regulate the reservoir designed
17 flood; right?
18 A. Right.
19 Q. So we talked about the spillway crest
20 elevations this morning; right?
21 A. Right.
22 Q. So Mr. Thomas, this document is the Corps of
23 Engineers' land acquisition criteria and regulations,
24 is it not?
25 A. It is part of that, yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
217
Trial
1 Q. It appears to be saying that the Corps is to

2 acquire property up to the top elevation or the crest
3 elevation of an ungated spillway; correct?
4 MR. SHAPIRO: Wait, I'll object. That
5 mischaracterizes this document. It says, "the upper
6 level of fee taking shall be that..."
7 THE COURT: That's what it says. The
8 document is what it is, and we'll take that directly
9 from the document.
10 MR. SHAPIRO: Thank you.
12 And we established those crest
13 elevations, did we not?
14 A. We did.
15 Q. But it's correct that the Corps of Engineers
16 has never sought to obtain the land up to the crest
17 elevation of those ungated auxiliary spillways;
18 right?
19 A. I'm not sure that's true.
20 Q. It's not -- what part of that is not true?
21 A. We've certainly sought to obtain additional
22 property.
23 Q. I thought that you said earlier that the
24 Corps had never requested authorization or funding to
25 acquire those lands.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
218
Trial
1 A. We have not.
2 Q. Well, how did you all seek to acquire it if
3 you didn't seek the funding?
4 A. Well, certainly there were many engineers and
5 scientists that were doing studies and recommending,
6 you know, throughout the process, but ultimately the
7 decision was not to get it.
8 Q. And the decision not to get it was based on a
9 cost/benefit analysis; right?
10 A. In 1995 it was.
11 Q. Okay. I'd like to hand you what's been
12 marked for identification as Plaintiffs' Exhibit 35.
13 Okay. Plaintiffs' Exhibit 35 is a June
14 24th, 1970, document entitled "Hydraulic Criteria For
15 Acquisition of Reservoir Lands"; correct?
16 A. Correct.
17 Q. And it says ETL-110-2-22; right?
18 A. Say it again.
19 Q. It says ETL-110-2-22; right?
20 A. It says SWEETL-1110-2-22.
22 "Hydrologic criteria for acquisition of
23 reservoir lands," you know what that means; right?
24 A. Yes, sir.
25 Q. What does it mean? Explain it to us.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
219
Trial
1 A. It's talking about what criteria you set in

2 terms of which pool levels you use for determining a
3 guide taking line.
4 Q. And you're familiar with this document, are
5 you not?
6 A. Yes, sir.
7 MR. EASTERBY: We'd move to admit Plaintiffs'
8 Exhibit 35 into evidence, your Honor.
12 evidence.)
13 Q. BY MR. EASTERBY: So, Mr. Thomas, if you turn
14 to the page that's Bates-stamped USACE327012,
15 "purpose and scope."
17 Q. And the purpose of this is to give the
18 district engineers guidance in acquiring the upper
19 limits of land acquisitions in the reservoir areas of
20 dams and reservoir storage projects; right?
21 A. Say it again.
22 Q. It provides guidance to district engineers
23 who are applying hydrologic engineering principles to
24 establish guidelines on which to base the upper
25 limits of land acquisitions in reservoir areas of dam

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
220
Trial
1 and reservoir storage projects; right?

2 A. Right.
3 Q. Just like Addicks and Barker; right?
4 A. Sure, Addicks and Barker are dams and
5 reservoirs.
6 Q. They sure are.
7 It also contains a discussion of general
8 criteria adopted jointly by the Departments of the
9 Interior and Army, and published in the Federal
10 Register, and interpretations of those criteria by
11 the Corps of Engineers; right?
12 A. Right.
13 Q. And that joint policy of the Department of
14 Interior and the Army, you're familiar with that, are
15 you not?
16 A. Yes.
17 Q. I believe it came out in '66?
18 A. I forget the year, sir.
19 Q. All right.
20 "Applicability. Criteria contained
21 herein are applicable to all types of storage
22 reservoirs constructed by Corps of Engineers offices
23 in Southwestern Division"; correct?
24 A. Correct.
25 Q. And so this document applied to Addicks and

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
221
Trial
1 Barker; right?
2 A. When?
3 Q. When it came out.
4 A. So when Addicks and Barker were built, that
5 was 30 years before this document was created.
6 Q. Well, Mr. Thomas, isn't it correct that
7 within the Corps, reevaluation of project operations
8 in light of changing circumstances is a
9 well-established principle?
10 MR. SHAPIRO: Object to the form of that
11 question. It's vague.
13 THE WITNESS: I don't know what you mean,
14 sir.
15 Q. BY MR. EASTERBY: Well, I mean as things
16 change, the Corps of Engineers has to evaluate those
17 changes, and if necessary, modify their project or
18 modify their operations.
19 A. Are you asking if because we have new
20 guidance we have to reevaluate a project and build
21 something new?
22 Q. No, I'm asking you, isn't it correct that
23 within the Corps of Engineers, when there is changes
24 in precipitation, or development, or whatever, they
25 have to look at the project and decide whether or not

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
222
Trial
1 we need to modify it; isn't that true?

2 A. So in order to do one of those general
3 reevaluations, we need a new start authorization in
4 Congress.
5 Q. Mr. Thomas, the question I asked was, within
6 the Corps of Engineers, isn't it a well-established
7 policy that as things change, the Corps is to look at
8 the project and decide do we need to modify in light
9 of those changes; yes?
10 A. So, engineers, as they're looking at projects
11 that are completed, frequently do make
12 recommendations like that.
13 But like I said, in order to make that
14 kind of change, you still have to seek and receive a
15 new start authorization for that site.
16 Q. Sure.
17 And I, mean, in the history of these
18 dams, they have been modified substantially; right?
19 A. They have.
20 Q. The embankments have been raised; right?
21 A. Right.
22 Q. Which what used to be just dirt all the way
23 to the end became roller-compacted concrete so you
24 could safely pass a spillway design flood; right?
25 A. Right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
223
Trial
1 Q. You all are changing the outlet structures as

2 we speak; right?
3 A. Right.
4 Q. So as things change, the practice and the
5 custom is, if necessary, we're going to change it to
6 effectuate the public purpose and make sure it's
7 safe; right?
8 A. Say it again.
9 Q. As things change, the Corps is going to
10 assess things, and if necessary, modify it to
11 effectuate the project's purpose and to make sure
12 it's safe.
13 A. That's certainly a goal of the Corps of
14 Engineers.
15 Q. It's not just a goal, I mean, it's one of
16 y'alls regulations, isn't it?
17 A. You're asking if the regulation says we have
18 to go back and get final guidance on prior
19 structures?
20 Q. I'm asking the question I asked, Mr. Thomas.
21 You guys have modified these dams many,
22 many times over the years; right?
23 A. We have modified them.
24 Q. Except in one area; right?
25 Land acquisition; is that true?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
224
Trial
1 A. I'm not sure if that's the only area that

2 remains unmodified. In fact, I'm certain it's not.
3 Q. Notwithstanding that, you would agree with me
4 that there have been no modifications to
5 government-owned land since the '40s; correct?
6 A. Correct.
7 Q. Okay. Go with me to -- let's see
8 USACE327014.
10 Q. In the middle part, sub C -- and I see
11 somebody wrote a little red annotation on this,
12 Mr. Thomas. Do you know who that was?
13 A. I do not.
14 Q. All right. "High level or limited service
15 spillway design." Do you see that?
16 A. Yes, sir.
17 Q. So Addicks and Barker presently have
18 uncontrolled spillways with high crest elevations;
19 correct?
20 A. They do.
21 Q. And those elevations are substantially higher
22 than the full pool elevation; right?
23 A. They are.
24 Q. Yeah.
25 And it says, "In that instance, the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
225
Trial
1 guide taking line will normally be at least equal to

2 the crest elevation of the spillway"; right?
4 Q. "And may exceed this elevation if necessary
5 to conform with other criteria prescribed herein";
6 true?
7 A. True.
8 Q. So it's fair to say that the Corps of
9 Engineers is not in compliance with this document
10 which is the hydrologic criteria for acquisition of
11 reservoir lands with regard to Addicks and Barker;
12 true?
14 question, your Honor.
15 THE COURT: Say again, Mr. Shapiro.
16 MR. SHAPIRO: I object to the form of the
17 question. It's not been established that this even
18 applies to existing structures.
19 THE COURT: Well, we haven't established the
20 retroactivity of this guidance. But if that's your
21 objection, we can clarify the point, Mr. Easterby.
22 MR. EASTERBY: I'll address that right now,
23 Judge. As we covered at the outset, the
24 applicability criteria contained herein are
25 applicable to all types of steward reservoirs

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
226
Trial
1 constructed by the Corps of Engineers offices in the

2 Southwestern Division; right?
3 THE WITNESS: What page are we on?
4 MR. EASTERBY: It was the first page,
5 USACE327012.
7 Q. BY MR. EASTERBY: So, I mean, you're not
8 saying that Addicks and Barker dams are somehow
9 grandfathered and that they don't have to worry about
10 updating their land acquisition. You're not saying
11 that, are you?
12 A. I'm saying that it's clear we would follow
13 the guidance if we were building new dams. It's not
14 clear that this is applied retroactively.
15 Q. It's not clear that this applies
16 retroactively?
17 A. It's not clear.
18 Q. Has the Corps ever investigated that, whether
19 this applies retroactively?
20 MR. SHAPIRO: Well, he can answer of his own
21 personal knowledge. He can't answer on behalf of the
22 Corps.
25 THE WITNESS: This was reevaluated in the '95

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
227
Trial
1 recon report.
3 And as we'll see, there are several
4 documents that talk about to be in compliance with
5 this regulation, that upstream land needed to be
6 acquired. We went through that in your deposition at
7 great length. Do you remember that?
8 A. I do.
9 Q. So these guidelines are retroactively
10 applicable, aren't they?
11 A. I don't -- I don't think you've shown that.
12 Or I don't think so.
13 Q. You don't think they are?
14 A. I don't believe so. I don't think we can go
15 out tomorrow and just buy this land just because this
16 regulation says we can.
17 Q. Well, the United States has the ability to
18 condemn any land it needs; right?
19 MR. SHAPIRO: Objection; calls for a legal
20 conclusion for one thing. And this -- this witness
21 can't testify about the United States' condemnation
22 authority.
23 THE COURT: That objection is sustained.
24 MR. EASTERBY: He was the designated
25 representative to bind the government in his

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
228
Trial
1 deposition testimony, so to say now that he can't

2 answer these questions, I don't understand how that
3 can be the case.
4 THE COURT: Well, we covered the '95 report,
5 and it mischaracterizes it. What is the '95 document
6 again?
7 MR. EASTERBY: It is the 1995 Reconnaissance
8 Report.
9 THE COURT: That is exactly right, but that
10 had to have a predicate or precursor.
11 Q. BY MR. EASTERBY: Okay. Well, we'll go
12 through it, because there are some documents coming
13 up that I think will address the retroactive
14 applicability of this document.
15 Now, if you look at USACE327020,
16 Mr. Thomas, it talks about possible backwater effects
17 resulting from regulation of the LAF, which is, "The
18 land acquisition flood must be determined to
19 establish land acquisition needs, particularly in
20 upstream reaches of the reservoir"; correct?
21 A. Correct.
22 Q. And that's referring to areas where these
23 incoming tributaries hit the pool, and there is going
24 to be backwater. There is going to be water pushed
25 back, maybe even outside of those channels; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
229
Trial
1 A. Maybe.
2 Q. And you told me in the deposition that the
3 Corps of Engineers had never done any kind of
4 analysis of possible backwater effects in the
5 upstream area; is that true?
6 A. I believe so.
7 Q. And can you explain to the Court why it is
8 that the Corps never did any backwater effect
9 analysis in the upstream area -- the upstream reaches
10 of the reservoirs?
11 A. I don't know.
12 Q. Is that being contemplated as part of this
13 Buffalo Bayou Tributaries Resiliency Study?
14 A. It is.
15 Q. All right. Mr. Thomas, let me hand you
16 what's been marked as Plaintiffs' Exhibit 1936.
17 1936.
18 A. Thanks.
19 Q. 1936 is a July 18th, '71 teletype, subject,
20 real estate acquisition. Do you see that?
21 A. Yes, sir.
22 Q. And it talks again about this 1962 joint
23 policy of the Department of Interior and the Army;
24 correct?
25 A. It seems to.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
230
Trial
1 Q. Under 1A it says, "Acquire fee title to the

2 maximum flowage line."
3 MR. SHAPIRO: Your Honor, this document is
4 not in evidence yet.
5 THE COURT: True.
6 Q. BY MR. EASTERBY: Mr. Thomas, you're familiar
7 with this document, I take it?
8 A. I'm not sure about this one.
9 Q. Well, it was produced by the Corps of
10 Engineers. Its subject is Real Estate Acquisition,
11 ER405-2-150. Do you see that?
12 A. I do.
13 Q. And as the former head of water control,
14 you're familiar with these engineering regulations,
15 particularly as they apply to hydrologic criteria in
16 land acquisition; true?
17 A. Some of them.
18 Q. All right. Do you have any reason to dispute
19 that this is a true and correct and authentic
20 document produced by the Corps of Engineers in this
21 case?
22 A. I do not.
23 MR. EASTERBY: We'd move to admit Upstream --
24 or Plaintiffs' 1936.
25 THE COURT: What is the date of the document,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
231
Trial
1 Mr. Easterby?
2 MR. EASTERBY: On the top right it says
3 7-18-71, your Honor, so I believe it's July 18th,
4 1971.
6 THE WITNESS: It is handwritten. It's not
7 clear that's actually the date of the document or if
8 someone filed it at some time.
9 MR. EASTERBY: Objection to that as not
10 responsive to any question.
12 MR. SHAPIRO: Well, a couple of things, your
13 Honor. First of all, the date is handwritten, so
14 it's not clear that was the date the document was
15 actually written.
16 Secondly, we're not challenging -- our
17 objection is not the authenticity of this document,
18 it's the foundation as to whether this witness has
19 the proper knowledge of this document. So that has
20 not been established, so we would object on the
21 grounds of foundation.
22 THE COURT: Well, let's talk a little bit
23 about this. This is an interesting question, because
24 this, in a way, is an ancient document.
25 MR. EASTERBY: Correct, your Honor.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
232
Trial
1 So we'd move it be admitted pursuant to

2 Rules of Evidence that prescribe the admission of
3 ancient documents.
4 MR. SHAPIRO: And our objection is not on
5 hearsay, your Honor; it's foundation.
6 THE COURT: Let me do a little sorting here.
7 This might be a good time for a break
8 while I do a little research.
9 Is that satisfactory?
11 THE COURT: Mr. Thomas, do you mind if we
12 take a 15-minute recess?
14 THE COURT: All right. We are in recess.
15 (Recess: 3:31 p.m. - 3:46 p.m.)
16 THE COURT: Mr. Thomas, welcome back.
17 You'll be happy to know, Mr. Thomas,
18 that the Court's memory was not entirely deficient,
19 and the Court invokes Federal Rule of Evidence
20 901(8), evidence about ancient documents or data
21 compilations for a document or data compilation
22 evidence that is in a condition that creates no
23 suspicion about authenticity, was in a place where,
24 if authentic, it would likely be and is at least 20
25 years old when offered.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
233
Trial
1 The Court admits whatever it is.

2 MR. EASTERBY: Plaintiffs' Exhibit 1936, your
3 Honor.
4 THE COURT: PX1936 is an ancient document.
6 in evidence.)
8 Q. So, Mr. Thomas, subparagraph A indicates, "To
9 acquire fee title to the maximum flowage line,
10 further defined as the top elevation of controlled
11 storage plus reasonable freeboard, or to a line 300
12 feet horizontally from the conservation pool, defined
13 as the top of all planned storage not devoted
14 exclusively to flood control, whichever is greater";
15 correct?
17 Q. And what is the maximum flowage line of
18 Addicks and Barker today, Mr. Thomas?
19 A. I'm not sure.
20 Q. Wouldn't it be at least the natural ground at
21 the end of the dams?
22 A. Maybe.
23 Q. Who else could we ask this question to,
24 Mr. Thomas? Who would know that besides you?
25 A. So the way that we tend to define this kind

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
234
Trial
1 of thing is through an iterative process with our

2 division and headquarters. We would do that at a
3 time where we were approaching an authorization for
4 something, and we're not doing that today, so likely
5 we'll make some recommendations for this out of the
6 upcoming study, but I don't know how I would define
7 it today based on this document.
8 Q. So an iterative process meaning that there
9 would be some back and forth to define and establish
10 how much land do we readily need to acquire in the
11 upstream reaches. Is that what you're saying?
12 A. That is what I'm saying.
13 Q. And you're saying that you don't think that's
14 ever happened before?
15 A. That discussion has happened many times.
16 It's only happened once officially, because they were
17 first built in the '40s.
18 Q. Well, Mr. Thomas, let's see what happens in
19 the '70s. Let's continue.
20 I would like to show what you is
21 identified as Plaintiffs' Exhibit 37.
22 Here you go, Mr. Thomas.
23 And Mr. Thomas, Exhibit 37 is a document
24 I showed you in your deposition. Do you recall that?
25 A. Yes, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
235
Trial
1 Q. It's dated May 3rd, 1973. It says at the

2 top, "Addicks and Barker Reservoirs Encroachment on
3 Private Lands"; correct?
4 A. Correct.
5 Q. And this was something produced by the Corps
6 of Engineers?
7 A. It appears to be.
8 Q. And you're familiar with the contents of it?
9 A. From the time that we discussed it.
10 MR. EASTERBY: Your Honor, we'd move to admit
11 Plaintiffs' Exhibit 37 into evidence.
15 evidence.)
16 Q. BY MR. EASTERBY: So, Mr. Thomas, this is
17 written by ET Graham, Chief Engineering Division;
18 correct?
19 A. Correct.
20 Q. Can you tell from the document if this is
21 coming from the Galveston District or somewhere else?
22 A. It appears to be the Galveston District.
23 Q. Okay. It states in the first paragraph, "The
24 fact that maximum impoundment in subject reservoirs
25 will cause flooding of substantial amounts of private

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
236
Trial
1 lands adjoining the fee-owned government lands is

2 expected to soon become a public issue, primarily
3 with respect to Addicks"; right?
4 A. Right.
5 Q. We've already had one inquiry from an
6 investor interested in land at the upper end of
7 Addicks; correct?
8 A. Correct.
9 Q. "Two, it is suggested that the Project
10 Engineer research the background of the existing
11 situation and develop a history and rationale for our
12 operating concept of imposing flooding on private
13 lands without benefit of flowage, easement, or other
14 legal rights"; correct?
15 A. Correct.
16 Q. And in the district office, who is the
17 project engineer?
18 A. So now that title refers to people that work
19 in our construction division, our construction --
20 sorry, our construction branch. I don't think it
21 would be the same person now, so I'm not entirely
22 sure who that person would have been.
23 Q. Who would it be now?
24 A. Now it would be one of our engineers in our
25 engineering branch that would look at something like

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
237
Trial
1 that.
2 Q. Did you used to occupy that position when you
3 were in the construction branch?
4 A. I've never been in the construction branch.
5 Q. You've never been in the construction branch,
6 but you're current title, you're over the
7 construction branch; correct?
8 A. Correct.
9 Q. So Mr. Thomas, have you ever seen the history
10 and rationale that was to be developed for the
11 operating concept of imposing flooding on private
12 lands without flowage, easement, or other legal
13 right?
14 A. I'm not sure.
15 Q. And do you take issue at all with what it
16 says in paragraph 2 in terms of it is correct that
17 the Corps' operating concept on Addicks and Barker is
18 to impose flooding on private lands without benefit
19 of a flowage, easement or other legal right?
20 A. State it again.
21 Q. Do you take issue with the statement in 2
22 about the Corps' operating concept today, is to
23 impose flooding on private lands without benefit of
24 flowage, easement, or other legal right?
25 A. I'm reading it.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
238
Trial
1 Q. Do you think this is wrong? Do you think

2 this statement is in error? Is it misstated?
3 A. I think I understand what he's asking for.
4 Q. What's he asking for?
5 A. Exactly what it says, to do some background
6 about the situation to develop the issue for the
7 rationale.
8 Q. I mean, Mr. Thomas, isn't it correct that the
9 Corps of Engineers does not generally go around
10 imposing flooding on private lands without a benefit
11 of a flowage, easement or other legal right?
12 A. Say it again.
13 Q. Isn't it correct that the Corps of Engineers
14 does not customarily impose flooding on private lands
15 without having a flowage, easement or other legal
16 right to do so?
17 A. We never want to do that.
18 Q. You never should do that, should you?
19 A. Well, I think there is some cases where you
20 exceed the design conditions where it's inevitable.
21 Q. It didn't exceed the design conditions during
22 Harvey, did it?
23 A. Well, it did in terms of the land acquisition
24 flood.
25 Q. You mean it exceeded government-owned land;

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
239
Trial
1 right?
2 A. It did.
3 Q. But does that mean that if the Corps wants
4 to, it can just buy whatever land it deems necessary
5 and impose flooding on the rest of the folks without
6 having the easement or other legal right? Is that
7 its policy?
9 MR. SHAPIRO: Object to the form of the
10 question.
12 THE WITNESS: Say it again.
13 Q. BY MR. EASTERBY: Is it the Corps' policy to
14 say we're going to buy whatever we want behind these
15 reservoirs, it may be enough, it may be not, and
16 we'll just go ahead and impose flooding on the
17 remaining folks without having a flowage, easement or
18 other legal right? Is that the Corps' policy?
19 A. No.
20 Q. No.
21 As we just saw, the policy is to acquire
22 enough land, and in this instance, up to those
23 spillway crest elevations; right?
24 MR. SHAPIRO: Well, it's a vague question,
25 your Honor, because I'm not sure if he's talking

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
240
Trial
1 about 1973 or back when these dams were constructed.

2 THE COURT: In light of the context,
3 Mr. Shapiro, that objection is overruled. We've
4 already had this train of documents regarding the
5 guidance.
6 THE WITNESS: Could you say it again, please?
7 MR. EASTERBY: Could you read it back, sir,
8 I've forgotten my question.
9 (The record was read as follows:
10 "Q. No.
11 "As we just saw, the policy is to
12 acquire enough land, and in this
13 instance, up to those spillway crest
14 elevations; right. ")
15 THE WITNESS: So I think what we said before
16 is that we hadn't established if that policy is
17 necessarily just automatically retroactive.
18 Q. BY MR. EASTERBY: Are you saying it's not
19 retroactive?
20 A. I'm saying if we built a new dam today, it
21 would depend upon the current policy.
22 Q. Right.
23 So I asked you, are you saying that the
24 policy we just saw, the hydrologic criteria for
25 acquisition of reservoir lands, are you saying that

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
241
Trial
1 it's not retroactive?

2 A. As far as I know, it doesn't automatically
3 authorize us to go buy new land.
4 Q. So you're saying it's not retroactive?
6 Q. Okay. Is there any document you've seen that
7 supports that?
9 Q. I don't think so either.
10 I mean, is there any document that
11 you're aware of that says the Corps of Engineers can
12 buy land at some period of time, and it doesn't
13 matter what changes, doesn't matter if we're going to
14 impose flooding on folks without legal right, it's
15 grandfathered, we're okay, we can just move on down
16 the road?
17 Have you ever seen a document that
18 supports that kind of idea?
19 A. Well, maybe.
20 Q. Well, maybe?
21 What maybe document are you talking
22 about?
23 A. Well, maybe Section 216 of the Flood Control
24 Act. I mean, it does say that we have to get
25 Congressional authorization to go back and modify

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
242
Trial
1 these projects. That's kind of what you're talking

2 about.
3 Q. And that's the Congressional authorization
4 that you never asked for; right?
5 A. Right.
6 Q. Okay. Mr. Thomas, I'd like to show you
7 what's been marked as Plaintiffs' Exhibit 38.
8 38 is an August 6th, '74 document
9 entitled Buffalo Bayou Tributaries, Barker Dam, Texas
10 Inspection Report Number 2; correct?
11 A. Correct.
12 Q. And you're familiar with this document, are
13 you not?
14 A. It's been a while, but yes, sir.
15 Q. Produced by the Corps of Engineers?
16 A. Yes, sir.
17 MR. EASTERBY: I'd move to admit Plaintiffs'
18 Exhibit 38 into evidence, your Honor.
21 (Plaintiffs' Exhibit 38 received in
22 evidence.)
23 Q. BY MR. EASTERBY: So there's been, I think,
24 10 or 11 periodic inspections of Addicks and Barker
25 over the years; is that right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
243
Trial
1 A. I forget the number.

2 Q. And this is one of them; correct?
3 A. Correct.
4 Q. And the purpose of these periodic inspections
5 is to do what, Mr. Thomas?
6 A. Essentially it's to inspect the structures
7 and then make any recommendations to manage risk that
8 might be needed, or to identify things that might
9 need to be reviewed further.
10 Q. Right.
11 So if you look at USACE233702, it talks
12 under authority of periodic inspection and continuing
13 evaluation of completed civil works structures;
14 correct?
15 A. Right.
16 Q. Meaning you're supposed to go out and look at
17 completed civil works structures and see if there
18 needs to be any modifications or changes; correct?
19 A. Right.
20 Q. All right. So the next page, page 2, 233703,
21 we see there is some elevations; correct?
22 A. Correct.
23 Q. Flood control pool, 104.8; right?
24 A. Right.
25 Q. And then if you go to the next page, 2.3,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
244
Trial
1 History, it talks about how storms in 1945, 1957 and

2 1960 would have produced higher stages, if they'd
3 occurred under the operating conditions used since
4 all the outlets were gated; correct?
5 A. What year was that again?
6 Q. 2.3, History, last sentence.
7 A. Last sentence. Okay.
8 Q. And that just simply means that as a function
9 of gating the outlet structures, you're going to have
10 higher pools; right?
11 A. Right.
12 Q. Next page, page 4, 4.2, Real Estate, "The
13 government does not have title or easements on the
14 land above elevation 98.3 MSL"; correct?
15 A. Correct.
16 Q. "The migration of development from Houston
17 into this area indicates that substantial
18 improvements may soon be constructed, in the
19 5100-acre area subject to infrequent flooding located
20 between the government-owned land elevation and the
21 elevation of the ends of the dam, which is the
22 uncontrolled spillway"; right?
23 A. Correct.
24 Q. "Development of this area will eventually
25 place the government in the position of having to

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
245
Trial
1 flood the area within the reservoir with the

2 accompanying damages in order to protect downstream
3 improvements in the event of a severe future storm";
4 right?
5 A. Correct.
6 Q. So the Corps of Engineers was well aware,
7 even back in the early '70s, that there was going to
8 be substantial development in that land that's
9 adjacent to the government-owned land; right?
10 A. I think by the '70s, people started to
11 recognize the area was going to be developed.
12 Q. And those people included the Corps of
13 Engineers; correct?
14 A. At least some people in the Corps of
15 Engineers.
16 Q. Well, those people were apparently kind
17 enough to write a document, which is Exhibit 38,
18 weren't they?
19 A. Yes, sir.
20 Q. Okay. If you go to page 9, under
21 non-government-owned real estate, it says, "Regarding
22 the privately-owned property within the possible
23 flood area within the reservoir, acquisition of fee
24 title for ponding easements is desirable, but is not
25 feasible because of the high cost"; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
246
Trial
1 A. Correct.
2 Q. It doesn't say anywhere in here that because
3 we built these dams in the '40s and acquired land in
4 the '40s, we don't have to worry about the fact that
5 our operating concept is going to impose flooding on
6 all these folks. It doesn't say that anywhere, does
7 it?
8 A. It does not say that.
9 Q. It says that it's desirable to buy that land,
10 but jeez, it's going to cost a lot; right?
12 Q. All right. Let me hand you what's been
13 marked for identification as Plaintiffs' Exhibit 39.
14 MR. EASTERBY: And your Honor, I don't know
15 if I admitted 38 or not, but if I didn't, I would
16 like to do so now.
17 THE COURT: You did; PX38 is admitted.
18 Q. BY MR. EASTERBY: Thank you, Judge.
19 PX39 is an October 29th, '74, Corps of
20 Engineers document about the Addicks Dam Inspection
21 Report Number 2. Do you see that?
22 A. Yes, sir.
23 Q. And you're familiar with this document?
24 A. I believe so.
25 Q. And it was produced by the Corps, was it not?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
247
Trial
1 A. It was.
2 MR. EASTERBY: Your Honor, Plaintiffs move to
3 admit Plaintiffs' Exhibit 39.
7 evidence.)
8 Q. BY MR. EASTERBY: On the first page,
9 subparagraph 4, it says, "The report should include
10 in the estimate the number of acres involved and the
11 cost of flowage easements required to provide for the
12 highest stage which would have been produced under
13 current operating conditions by storms occurring
14 since the project was placed in operation"; correct?
16 Q. And by the tone of what you just answered, I
17 suspect that maybe now you're willing to concede,
18 that hydrologic criteria document is retroactively
19 applicable; is that true, Mr. Thomas?
20 A. Oh, no, I was just trying to figure out what
21 this basic -- the basic letter was.
22 Q. All right. Well, let's turn the page.
23 The second page, October 8, '74, is from
24 Russell J. Kruchten. K-r-u-c-h-t-e-n. It looks like
25 he is a Lieutenant Colonel in the Corps of Engineers,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
248
Trial
1 assistant Director of Civil Works, Lower Mississippi

2 and Gulf; correct?
3 So, Mr. Thomas, where is this coming
4 from? Who wrote this document, if you know?
5 A. I'm going to assume it's coming from
6 Lieutenant Colonel Kruchten.
7 Q. My question was poor.
8 Is it coming from the Southwestern
9 Division? Is it coming from the Office of Chief
10 Engineer? In the hierarchy, where is it coming from?
11 A. It looks like from the Office of the Chief
12 Engineer.
13 Q. And the Office of Chief Engineer is up in
14 Washington, D.C.; right?
15 A. It is.
16 Q. Is that the highest level of the Corps of
17 Engineers?
18 A. It is.
19 Q. Okay. Paragraph 3, and it's addressing the
20 real estate problems that are discussed in paragraph
21 2, but paragraph 3 talks about how public law 91-646,
22 approved 2 January '71, provides for some things. Do
23 you see that?
24 A. Yes, sir.
25 Q. "No federal agency head shall intentionally

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
249
Trial
1 make it necessary for an owner to institute legal

2 proceedings to prove the fact of the taking of his
3 real property"; correct?
4 A. Correct.
5 Q. "Judicial determinations or case law
6 establishes the premise that any change in project
7 operations resulting in increased damages over and
8 above those for which just compensation have been
9 paid results in the owner being entitled to
10 additional payment"; right?
11 A. Correct.
12 Q. So if the project operations change, it's
13 saying here "additional payment must be made"; right?
15 MR. SHAPIRO: I have to object, your Honor.
16 This is talking about judicial determinations and
17 case law, so that sounds like a legal conclusion.
19 Q. BY MR. EASTERBY: There were project
20 operation changes with regard to these dams, weren't
21 there?
22 A. There were.
23 Q. Yeah, the gating. We just saw the prior
24 document that said those prior storms would have
25 generated higher pools because of the changes; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
250
Trial
1 A. Right.
2 Q. And that can impose flooding on private land,
3 as we saw a few minutes ago; correct?
4 A. Maybe.
5 Q. The last sentence, "In no instance can too
6 high a cost be used as a justification for not
7 acquiring land, or an interest therein, when it will
8 or may be adversely affected by project operations";
9 right?
10 A. Correct.
11 Q. And I'm sure you will agree with me that
12 imposing or an operating rationale or protocol of
13 imposing flooding on private lands without a flowage
14 easement or other legal right would be an adverse
15 impact or effect; right?
16 A. Say it again?
17 Q. I'm sure you would agree with me that
18 imposing flooding on private lands without a flowage
19 easement or other legal right would be an adverse
20 effect or impact, as it's discussed here in paragraph
21 3.
22 A. I'm not familiar with this law, so I'm not
23 sure how they find adverse impact.
24 Q. You're not familiar with public law 91-646?
25 A. No, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
251
Trial
1 Q. I thought you just were talking about the

2 Flood Control Act a few minutes ago.
3 A. Is that the same thing?
4 Q. You don't know?
5 A. I don't know.
6 Q. Okay. So the OCE is directing that the
7 District should prepare a report, including the
8 likelihood of local zoning authorities taking steps
9 to restrict development. Do you see that?
10 A. Yes, sir.
11 Q. And then it talks about "the alternative of
12 no action should also be presented with a discussion
13 of the likelihood of flooding to the top of reservoir
14 capacity in lesser elevations to 100 feet MSL, and
15 consequences that may flow from such occurrences
16 under current conditions and projected to the end of
17 project life"; right?
18 A. Right.
19 Q. And was a report like that generated in
20 response?
21 A. I'm not sure.
22 Q. I think it's the balance of this report,
23 Mr. Thomas, so let's just step through it very
24 quickly.
25 As we turn the page, we see we're now

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
252
Trial
1 looking at the inspection number 2.

2 Go with me to page 5, USACE233674.
4 Q. It notes again, "The government does not have
5 title or easements on the land above elevation 108
6 MSL"; right?
7 A. Yes, sir.
8 Q. It talks about "The substantial improvements
9 that may soon be constructed in the 4,000 acres
10 subject to infrequent flooding, located between the
11 government-owned land at the elevation of the ends of
12 the dam," which is the uncontrolled spillway; right?
13 A. Right.
14 Q. Yeah, so I mean, it's basically saying what
15 we've been talking about. Yes, there is the
16 potential for inundating private properties that are
17 beyond government-owned land; correct?
18 A. Correct.
19 Q. Okay. Mr. Thomas, let's talk about the 1977
20 hydrology report, which I'm positive is a Joint
21 Exhibit. It's Joint Exhibit 22.
22 So Mr. Thomas, you're familiar with
23 Joint Exhibit 22?
24 A. Yes, sir.
25 Q. And it's a copy that was produced by the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
253
Trial
1 Corps of Engineers.
2 A. Right.
3 MR. EASTERBY: We move to admit Joint Exhibit
4 22 into evidence.
8 evidence.)
9 THE WITNESS: Could I make a comment about
10 it?
11 Q. BY MR. EASTERBY: Sure.
12 A. So this one has some markings in the back
13 noting that the hydrographs are void, so it looks
14 like this is the version that may have some kind of
15 initial draft, or anyway, it's not the final version.
16 Q. Well, you know, Mr. Thomas, that in 1984, a
17 general design memorandum came out?
18 A. Yes.
19 Q. And you know that in that 1984 general design
20 memorandum, they updated the hydrographs from the '77
21 hydrology report, do you not?
22 A. Right.
23 Q. Okay.
24 A. But not this one.
25 Q. Not this one.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
254
Trial
1 You're saying there is some other

2 version of the '77 hydrology report?
3 A. Yes.
4 Q. Well, then, I'm sure counsel for the
5 government will show you that on his
6 cross-examination.
7 In any event, Mr. Thomas, this was the
8 document that changed things quite a bit for Addicks
9 and Barker, didn't it?
10 A. Yes, sir.
11 Q. It increased the precipitation from that
12 Hearne storm we talked about to the updated amount,
13 which you'll find on page 9, USACE234623.
14 And this is the spillway design storm;
15 correct?
16 A. Right.
17 Q. It looks like the computation of the spillway
18 design storm is based upon precipitation or rainfall
19 that comes out of a report, number 51, dated 1976;
20 right?
21 A. Right.
22 Q. The ten square mile, 72-hour index used was
23 55.7 inches; correct?
24 A. Correct.
25 Q. And so from that, the Corps calculated a new

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
255
Trial
1 projected maximum precipitation; right?

2 A. Right.
3 Q. And do you know what this is? I think I
4 already asked you that, but if I didn't, I'm going to
5 ask you again.
6 A. I think it's an average of 43 or 44 inches.
7 Q. Okay. If you go to page 18, it says in 4-06,
8 Standard Project Flood, rainfall for the standard
9 project flood was taken as 50 percent of the spillway
10 design storm rainfall; correct?
11 A. Correct.
12 Q. Is that still the case with regard to Addicks
13 and Barker? It's 50 percent of the spillway design
14 flood?
15 A. Correct.
16 Q. So if you know, how much rain is that in
17 terms of the standard project flood currently for
18 Addicks and Barker?
19 A. It's an average of around 22 inches.
20 Q. Twenty-two inches.
21 Over what period? Three days?
22 A. Three days.
23 Q. So that's what? About a hundred-year storm
24 these days?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
256
Trial
1 Q. Have you looked at the updated NOAA

2 calculations that came out last year?
3 A. I have.
4 Q. You have?
5 A. I have.
6 Q. And has the Corps been looking at this issue
7 to see do we need to increase our standard project
8 flood or our spillway design flood?
9 A. We are.
10 Q. Okay. 4-07 compares the previous studies.
11 It talks about how runoff from the storm was computed
12 as 90 percent of the rain. Do you see that?
13 A. Yes, sir.
14 Q. And then it says, "The spillway design storm
15 adopted for the present study produced about 44.6
16 inches in 72 hours, over a hundred square mile area,
17 with peak intensities of about 11.3 inches per hour";
18 right?
19 A. Right.
20 Q. I mean, Harvey had nothing close to 11.3
21 inches of rain per hour; right?
22 A. I forget what the peak was.
23 Q. It never got anywhere close to that, did it?
25 Q. So just so we all understand, Mr. Thomas. As

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
257
Trial
1 I understand it, how this is done is the Corps will

2 route this projected maximum precipitation over the
3 watershed, and say 90 percent of that is going to
4 drain downstream and be held back by the embankments,
5 and whatever that pool looks like, that's going to be
6 our spillway design flood; right?
7 A. No, sir.
8 Q. No? How is it done?
9 A. So in this manual, what they talk about is
10 you're going to have a standard project flood, you're
11 going to have 22 inches of rainfall, and in five days
12 of rain, and then you're going to have 44 inches of
13 rainfall occur.
14 Q. Okay. So the spillway design flood would be
15 after there had been a standard project flood?
16 A. Right.
17 Q. Okay. And the rainfall from Harvey generated
18 a pool that was larger than the standard project
19 flood for these projects?
20 A. It did.
21 Q. So because of this '77 hydrology report, the
22 Corps of Engineers had to go about making substantial
23 modifications to the dams because they could not
24 withstand a spillway design flood of that magnitude;
25 correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
258
Trial
1 A. Correct.
2 Q. And in the context of those discussions,
3 there were a lot of conversations about additional
4 acquisition of the upstream areas we've been talking
5 about all day today, weren't there?
6 A. There were.
7 Q. Now, the fact that there's conversations
8 about additional land acquisitions in these upstream
9 areas because of changing conditions, wouldn't that
10 lead you to believe that the hydrologic criteria for
11 acquisition of reservoir lands is retroactively
12 applicable?
13 MR. SHAPIRO: I'll object; this has been
14 asked and answered.
15 MR. EASTERBY: He's never said yes or no to
16 it. I think it's been I don't know.
17 MR. SHAPIRO: That's right. He's testified
18 he's not certain.
19 THE COURT: We'll find out.
20 You may answer.
22 You may answer the question, Mr. Thomas.
23 THE WITNESS: Can you say it again?
24 Q. BY MR. EASTERBY: The fact that the Corps of
25 Engineers, upon recognizing we have a new spillway

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
259
Trial
1 design flood, we have new rainfall, these dams will

2 not safely contain a spillway design flood.
3 Are you with me so far?
4 A. They will not safely contain or pass.
5 Q. Right.
6 And in the context of those discussions,
7 there's also a lot of conversations about buying more
8 upstream property; right? You know that?
9 A. There was.
10 Q. Right.
11 So the fact that those conversations are
12 happening, doesn't that suggest to you that the
13 hydrologic criteria for acquisition of reservoir
14 properties is retroactive?
15 A. It is not.
16 Q. Why would they be talking about it then?
17 A. They would talk about it because it's
18 important; right? It's clearly at risk. However,
19 they made a decision. That's what makes me think
20 it's not retroactively approached.
21 Q. The decision to do nothing and not ask
22 Congress for additional money?
23 A. That's right.
24 Q. Is that the only reason?
25 A. That's the primary reason.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
260
Trial
1 Q. So if there is a document that says

2 acquisition of upstream real estate -- acquisition of
3 upstream real estate to the standard project pool
4 elevation, plus freeboard, is necessary to comply
5 with the hydrologic criteria for reservoir lands,
6 would that change your answer?
7 A. No, sir. We know we didn't acquire any. The
8 documents say the decision was not to acquire
9 additional real estate.
10 Q. Okay. So because the Corps never asked, your
11 conclusion is that means that policy is not
12 retroactive?
13 A. In terms of that document, that's the
14 decision that the Corps of Engineers made.
15 Q. And that's it. No other reason?
16 A. I don't have another reason.
17 Q. All right. I'd like to show you what's been
18 marked as Exhibit 42.
19 A. Is that Plaintiffs'?
20 Q. Plaintiffs' Exhibit 42 is a May 1, '77 --
21 actually, it says '78, pardon me. May 1st, '78
22 document, subject, Water Control Manual for Addicks
23 Reservoir and Barker Reservoir. Do you see that?
24 A. Yes, sir.
25 Q. Are you familiar with that document?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
261
Trial
1 MR. SHAPIRO: If you could give me a minute,

2 please.
3 Q. BY MR. EASTERBY: You're familiar with the
4 document, Mr. Thomas?
5 A. I'm not remembering it offhand, sir.
6 Q. It was marked in your deposition. We
7 discussed it at length.
8 Irrespective of that, it was produced by
9 the Corps in this litigation; correct?
10 A. It appears so, sir.
11 Q. Its subject is Addicks Reservoir and Barker
12 Reservoir?
14 Q. Yes?
15 A. Its subject is water control manuals for
16 Addicks Reservoir and Barker Reservoir.
17 Q. You have no reason to doubt the authenticity
18 of it or anything like that, do you?
19 A. It appears to be a draft.
20 Q. You have no reason to doubt the authenticity
21 of it, meaning it has not been altered or changed; it
22 was produced by the government as it was maintained
23 in the files down there in the Galveston District;
24 right?
25 A. I do not.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
262
Trial
1 MR. EASTERBY: We move to admit Plaintiffs'

2 42, your Honor.
3 MR. SHAPIRO: I guess we would object, your
4 Honor, on foundational grounds. This witness has
5 testified he doesn't recognize it.
6 THE COURT: Go back to the Federal Rule of
7 Evidence I cited earlier. This -- the Court has a
8 quick question or so about the provenance of the
9 document.
10 MR. EASTERBY: Sure, your Honor.
11 THE COURT: Mr. Thomas, it looks as if there
12 are some initials, and it says signed over on the
13 right-hand side; is that correct?
14 THE WITNESS: Signed, sir? You mean
15 underneath trade name?
16 THE COURT: Well, SMG -- I'm sorry, it
17 doesn't say signed. It says SMEGED, and it has
18 various initials.
20 So SMEG is our office, the District, and
21 ED would be probably the engineering division at the
22 time. That's kind of the abbreviation for our
23 offices. So this is the way we route things around
24 for comments or approval.
25 THE COURT: Is this a comment or is it an

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
263
Trial
1 approval?
2 THE WITNESS: I don't know.
3 THE COURT: It looks to the Court like it was
4 approved.
5 It also looks like the date is 1 May '78
6 rather than 1 May '77, although there is an ambiguity
7 there. Either way, it is an ancient document under
8 the Rule. I guess the question is whether it was
9 superseded by anything, and the Court doubts that.
10 The document is admitted.
11 MR. SHAPIRO: If I could, your Honor.
12 THE COURT: Yes.
13 MR. SHAPIRO: The witness has identified this
14 as a draft, so just so that --
15 THE COURT: He did, but on the other hand,
16 that was before the Court asked him about the
17 approvals.
18 MR. SHAPIRO: Well, if I could, your Honor,
19 perhaps I could ask a question.
20 THE COURT: Yes, you may. You're allowed
21 voir dire.
23 BY MR. SHAPIRO:
24 Q. Mr. Thomas, if you look at the first page of
25 this document, under paragraph 4, what does it say in

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
264
Trial
1 regard to whether this appears to be a draft or not?

2 A. It says draft, so it's Section 7 of the Water
3 Control Manuals submitted.
4 Q. Does that lead you, sir, to conclude this
5 might be a draft document?
6 A. So we would identify it as being approved
7 when it had a signature above that person's name.
8 Q. Above what person's names?
9 A. Joseph C. Trahan, T-r-a-h-a-n.
10 Q. Is there a signature above that name?
11 A. No, sir.
12 Q. On the page USACE541550, which should be the
13 third page of this document, at the top, is that also
14 labeled draft?
15 A. It is.
16 Q. And so do you understand this to be a draft
17 document?
19 MR. SHAPIRO: So, for that reason, your
20 Honor.
21 THE COURT: Does that make it inadmissible,
22 Mr. Shapiro?
23 MR. SHAPIRO: Well, in our -- no, your Honor,
24 draft documents can certainly be admitted.
25 I wanted to clarify, though, that this

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
265
Trial
1 does appear to be a draft document that has not been

2 signed or finalized, and our objection is a
3 foundational one, which the Court has overruled.
4 THE COURT: Your clarification is accepted.
5 On this other hand, it might be the best
6 available document.
7 Let's ask, Mr. Easterby.
9 BY MR. EASTERBY:
10 Q. So, Mr. Thomas, I note on the right-hand side
11 of the first page, you see Trahan, SWGED, and then
12 there is some initials on it; right?
13 A. Right.
14 Q. So it looks like he initialed it; correct?
15 A. It looks that way.
16 Q. The subject is Water Control Manuals for
17 Addicks Reservoir and Barker Reservoir; right?
18 A. Right.
19 Q. You saw there was a '62 Water Control Manual,
20 didn't we?
21 A. We did.
22 Q. When was the next Water Control Manual?
23 A. 2012.
25 Your Honor, I'm not offering this as a

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
266
Trial
1 new water control manual; I'm offering it because it

2 has some information about what was happening in this
3 time period. That's it.
5 MR. SHAPIRO: Well, so long as that's the
6 case. I just don't want to be dragged down into
7 talking about the substance of this document and it
8 having any meaning, because it is a draft document,
9 and the fact that there is -- if we could look -- if
10 we could highlight what is being called a signature
11 on the Trahan name. I mean, that's hardly a
12 signature. There is no indication about who actually
13 made that mark.
14 In addition, paragraph 4 states that
15 "The drafts of this are submitted, requests Mr. Sison
16 (phonetic) be contacted for arrangements of an
17 onboard review."
18 It does appear that this is going to be
19 subjected to some additional review and that this is
20 not finalized.
21 THE COURT: Let's just clarify.
22 MR. EASTERBY: I'm not suggesting it is
23 final. The next Water Control Manual didn't come out
24 until 2012.
25 THE COURT: From '62 to 2012, is there water

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
267
Trial
1 manuals, you're saying, Mr. Easterby?

3 THE COURT: The Court will admit this even
4 though it might be a draft.
5 Admitted.
7 evidence.)
8 Q. BY MR. EASTERBY: So, Mr. Thomas, in the
9 Corps of Engineers, is it the custom and practice
10 when somebody is putting together a draft Water
11 Control Manual to put accurate information in the
12 draft?
13 A. Well, the draft is for review, so certainly
14 everyone attempts to put accurate information, but we
15 review them because there isn't always accurate
16 information in drafts.
17 Q. Right.
18 When you're submitting a draft document
19 up to your boss, don't you want to put in accurate
20 information? Right?
21 A. You certainly want to.
22 Q. It's going to go into the Water Control
23 Manual at some point maybe; right? You better make
24 sure it's accurate; right?
25 A. That's what the review is for.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
268
Trial
1 Q. Exactly, and do you have any indication that

2 any of the information in this document is inaccurate
3 or misstates what was occurring back in this 1978
4 time period?
5 A. I don't know.
6 Q. You don't. Okay.
7 Let's look at page 2 of the document,
8 please. It's USACE541551, subparagraph C. And it
9 talks about the original basis for land acquisition
10 being the taking line represents the reservoir pool
11 resulting from a routing of the flood of record
12 increased by 50 percent. Do you see that?
13 A. Yes, sir.
14 Q. Well, to Mr. Shapiro's point, that's wrong,
15 isn't it?
16 A. It is wrong.
17 Q. Because that's not -- that was not the basis
18 for land acquisition, was it?
19 A. It was not.
20 Q. It was the '35 storm plus three feet; right?
21 A. Right.
22 Q. Okay. Then it goes down and talks about how
23 current studies indicate that a reservoir pool
24 elevation of 118.1 feet is possible under existing
25 conditions. Extensive damage would occur in the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
269
Trial
1 reservoir area from an event of this magnitude;

2 right?
3 A. Right.
4 Q. So this is talking about current conditions
5 in this time period; correct?
6 A. I believe so.
7 Q. And the current studies are the '77 hydrology
8 report we just looked at; right?
9 A. Right.
10 Q. So there is no reason to think that part of
11 it is inaccurate; correct?
12 A. Which part?
13 Q. Current studies indicate from there on?
14 A. Right.
15 Q. And the government does not own land up to
16 118.1 feet, does it?
17 A. It did not.
18 Q. Extensive damage would occur in the reservoir
19 area from an event of this magnitude; correct?
20 A. Correct.
21 Q. And this is back in a time period where there
22 were no homes behind Addicks and Barker; isn't that
23 right? Well, maybe Bear Creek Village was there, I
24 think, but other than that, no development back at
25 that time period; isn't that your understanding?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
270
Trial
1 MR. SHAPIRO: Well, I'll object to lack of

2 foundation.
3 THE COURT: All right. That's true.
4 Mr. Thomas, you may answer of your own
5 personal knowledge. Do you know the answer to the
6 question of your personal knowledge? You may state
7 what you think.
8 THE WITNESS: I know there were some. I
9 don't know how many.
10 Q. BY MR. EASTERBY: Okay. Let's turn ahead to
11 USACE541562, which is the companion draft for Barker,
12 and subparagraph C talks about how real estate for
13 Barker Reservoir was acquired at 97.3 feet. And
14 again, it's got the mistake of the '35 flood of
15 record increased by 50 percent. Do you see that?
16 A. Yes, sir.
17 Q. Now here it says behind Barker "rapid
18 residential development in the area immediately above
19 government-owned land real estate is in progress";
20 correct?
21 A. It does.
22 Q. Current studies indicate that a reservoir
23 pool elevation of 110.3 feet is possible under
24 existing conditions; right?
25 A. Right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
271
Trial
1 Q. Extensive damage would occur in the reservoir

2 area from an event of this magnitude; correct?
3 A. Correct.
4 Q. So the Corps of Engineers knew, Mr. Thomas,
5 that rapid residential development was in progress
6 back in this time period; true?
7 A. Yes, sir.
8 Q. They knew that their updated project
9 operations and the updated rainfall could generate a
10 pool that's much higher than government-owned land;
11 right?
12 A. Well, it isn't talking about operations in
13 here.
14 Q. But they knew that nonetheless; correct? You
15 saw that in the prior documents?
16 A. Right.
17 They knew that any of these pool levels
18 related to government land.
19 Q. And they knew that extensive damage would
20 occur in the reservoir area from an event of this
21 magnitude; right?
22 A. Right.
23 Q. And reservoir area referring to up to an
24 elevation of 110.3 feet; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
272
Trial
1 Q. Government-owned land at that time was 97.3

2 feet using that datum; correct?
3 A. Correct.
4 Q. And so when Harvey occurred, it was hardly a
5 surprise that there was extensive damage to the
6 residential neighborhoods that were behind the
8 A. Say it again?
9 MR. SHAPIRO: Object on vagueness grounds.
10 MR. EASTERBY: I'll ask it again.
11 Q. When Harvey occurred, it was hardly a
12 surprise that extensive damage would occur to the
13 residential areas that are beyond government-owned
14 land; right?
15 MR. SHAPIRO: If you mean at the time of
16 Harvey, I have no objection.
17 MR. EASTERBY: Is that an objection?
18 THE COURT: The question stands.
20 So you're saying that when the pool
21 level reached what it did in Harvey, we had some
22 knowledge that we'd be inundated to that level.
23 Q. BY MR. EASTERBY: No, what I'm saying, as I
24 asked three times now, Mr. Thomas, the Corps of
25 Engineers was well aware that extensive damage would

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
273
Trial
1 occur to those homes that are beyond government-owned

2 land when elevations from that reservoir pool got
3 above government-owned land. They knew that; right?
4 It wasn't a surprise?
5 A. Well, like we talked about, we had data
6 indicating the first level elevations of those homes
7 and information about the pool level.
8 Q. So is your answer yes?
9 A. I'm having a hard time following all of the
10 intricacies of the question.
11 Q. I'll make it really, really simple, okay?
12 This 1978 document is talking about how
13 rapid residential development is occurring in the
14 area immediately above government-owned real estate;
15 right?
16 A. Right.
17 Q. We talked about this before, Canyon Gate,
18 Cinco Ranch, Kelly Wood. We talked about Bear Creek
19 Village, Twin Lakes. We talked about Lakes on
20 Eldridge. You know all these communities. You saw
21 them on August 30th; right?
22 A. Right.
23 Q. It's saying here that under the existing
24 conditions, extensive damage would occur in those
25 areas from an event of this magnitude; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
274
Trial
1 A. It does.
2 Q. So I'm just asking you, it was no surprise to
3 the Corps of Engineers when Harvey happened that
4 extensive damage was going to happen to those homes
5 behind the reservoir.
6 A. I think my answer is that we, when we saw the
7 predicament of Harvey, we had an understanding of the
8 level the pool would reach and how many homes might
9 be inundated by that pool level.
10 Q. And the extensive damage those homes would
11 suffer from the occupation by the runoff that had
12 been impounded by this federal project; true?
13 A. I don't know if we had an analysis of the
14 damage level.
15 Q. What about this document we're looking at?
16 "Extensive damage would occur." That's what it says?
18 Q. And that was in '78; right?
19 A. Right.
20 Q. There has been a lot more development since
21 '78; right?
22 A. Right.
23 Q. More development, more extensive damage;
24 true? More homes?
25 A. Based on this document, yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
275
Trial
1 Q. Or new extensive damage would occur if you

2 got a storm or storms that were large enough to get
3 the pool up above government-owned land and put them
4 inside people's homes; right?
5 A. We knew damage would occur.
6 Q. Extensive damage is what it says?
8 Q. And you have no reason to disagree with that,
9 do you?
10 A. I have no reason to disagree with that.
11 Q. Thank you, Mr. Thomas.
12 Okay. I'm going to show you what's been
13 marked as Plaintiffs' Exhibit 44. And 44,
14 Plaintiffs' Exhibit 44, is an October 17th, 1980
15 document, subject, Buffalo Bayou and Tributaries,
16 Spillways for Addicks and Barker Dams; correct,
17 Mr. Thomas?
18 A. Yes, sir. It has two dates on it, though.
19 Q. What's the date of the document, if you know?
20 A. The date of the document being sent appears
21 to be 26 November 1979.
23 It's from Hugh G. Robinson, Brigadier
24 General, USA Division Engineer; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
276
Trial
1 Q. Are you able to tell from this, is this from

2 the Office of Chief Engineers or somewhere else?
3 A. I'm going to assume its from the Southwestern
4 Division, but I'm not sure.
5 MR. EASTERBY: Okay. Your Honor, I'll do a
6 little foundation.
7 Q. Do you recognize this document, Mr. Thomas?
8 A. I remember that I've seen it before, but I
9 couldn't tell you what's in it.
10 Q. Produced by the Corps of Engineers in this
11 case?
12 A. Right.
13 Q. No reason to doubt its authenticity or that
14 it's a true and correct copy of what's been
15 maintained all these years?
16 A. Correct.
19 MR. SHAPIRO: If I could have a minute, your
20 Honor.
21 THE COURT: Yes.
22 MR. SHAPIRO: So, your Honor, there appears
23 to be several documents included within this
24 document, including, for example, if you turn to page
25 USACE570694, an August 15, 1980 stamped document.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
277
Trial
1 The first page is marked 13, and then there is a

2 series of other page numbers on this.
3 I just am a little concerned that there
4 might be multiple documents included in this exhibit.
5 MR. EASTERBY: It's how it was produced by
6 the government, Judge. And I will also note that if
7 you look ahead to USACE570691, it says two
8 enclosures, so I think that's the reason why we've
9 got multiple documents is that they were enclosures
10 attached.
11 THE COURT: As Mr. Thomas noted earlier,
12 there is a reference also to a document that's
13 probably included in or incorporated in this document
14 dated 26 November 1979, so it looks like this is an
15 accumulation or a compilation that's being
16 transmitted.
17 Do you have any further commentary,
18 Mr. Shapiro?
19 MR. SHAPIRO: Only that I'm not sure if all
20 of these documents are a single document. That's my
21 concern.
22 THE COURT: Do you have any reason to doubt
23 the authenticity of the compilation?
24 MR. SHAPIRO: I have no reason to doubt the
25 authenticity separately. I have no idea whether

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
278
Trial
1 these were actually back in 1979 or 1980 ever

2 attached to one another.
3 THE COURT: Well, they are separately dated.
4 There is no problem establishing the dates. The
5 documents are admitted.
6 (Plaintiffs' Exhibit 44 received in
7 evidence.)
9 Q. So Mr. Thomas, turn, if you would, to
10 USACE570692. This appears to be a November 26, '79
11 document. Is that the way you read it?
12 A. Again, this one has two dates on it again.
13 Q. That's why I asked you.
14 A. I don't know what date it is.
15 Q. Okay. It's from Lloyd A. Duscha,
16 D-u-s-c-h-a, Chief Engineering Division, Directorate
17 of Civil Works; correct?
18 A. Correct.
19 Q. For the Chief of Engineers; right?
20 A. Correct.
21 Q. This is from the Office of Chief Engineers.
23 Q. So it says at the bottom paragraph, "The
24 acquisition of reservoir lands would be in accordance
25 with the guidance set forth in ER-405-2-150, and the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
279
Trial
1 teletype dated 13 July 1971"; correct?

2 A. Correct.
3 Q. And you recall that we looked at both of
4 those documents a couple hours ago; right?
5 A. I believe so.
6 Q. So, again, does this change your mind about
7 retroactivity of that hydrologic criteria document?
8 A. No, sir.
9 Q. Okay. Turn ahead, if you would, to
10 USACE570694. It appears to be the fourth
11 endorsement, November 26, '79, and it also bears a
12 date of August 18th, 1980. Do you see that?
13 A. Yes, sir.
14 Q. And it is directed to the Division Engineer,
15 Southwestern; right?
16 A. Right.
17 Q. It's from James M. Sigler, Colonel
18 (phonetic), CE, District Engineer; correct?
19 A. Correct.
20 Q. And the subject of this is addressing the
21 spillways for Addicks and Barker Dams; right?
22 A. Yes, sir.
23 Q. Okay. First paragraph, "In accordance with
24 the second and third endorsements, studies of an
25 alternative for a diversion of flows from Barker to

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
280
Trial
1 the Brazos River and more refined hydraulic studies

2 and evaluation of real estate interests required to
3 meet current Corps of Engineers criteria for each
4 alternative have been completed." Do you see that?
5 A. Yes, sir.
6 Q. So, you know in this time period there has
7 been discussion about how can we, as the Corps of
8 Engineers, deal with the fact that these dams cannot
9 safely pass or handle a spillway design flood; right?
10 A. Right.
11 Q. There were a number of plans, plans 1 through
12 maybe 16; right?
13 A. Correct.
14 Q. And I believe it was plan 5B that was
15 actually the one that was adopted; right?
16 A. That's not correct.
17 Q. I believe plan 1 was the notion of let's just
18 lop off a lot of the ends of the dams. You know
19 that; right?
20 A. I believe it was degrading the dams.
21 Q. Degrading, does that mean getting rid of or
22 lowering?
23 A. It does.
24 Q. And if you take away or lower the ends of the
25 dams, you're going to have a smaller reservoir pool

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
281
Trial
1 as a consequence, aren't you?

2 A. Right.
3 Q. That would be one way to deal with this
4 inadequate government-owned land issue we've been
5 talking about all day; right?
6 A. It would.
7 Q. But that didn't happen, did it?
8 A. It did not.
9 Q. Instead, the embankments were raised and
10 auxiliary spillways with roller-compacted concrete
11 were put in; right?
12 A. So the main embankments were raised. The
13 existing embankments were lowered, they weren't
14 added. They already existed. They were just changed
15 from earth to concrete.
16 Q. They weren't degraded, were they?
17 A. They were not degraded.
18 Q. Okay. Go with me to page 8, USACE570695,
19 paragraph 6, second sentence. "Acquisition of
20 upstream real estate to the standard project flood
21 pool elevation plus freeboard is necessary to comply
22 with ETL-110-2-22"; correct?
23 A. Correct.
24 Q. And do you remember what ETL-110-2-22 is?
25 A. Yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
282
Trial
1 Q. That's the hydrologic criteria for

2 acquisition of reservoir lands, isn't it?
3 A. It is.
4 Q. So this historical document is saying that
5 acquisition of that upstream real estate is necessary
6 to comply with that regulation, isn't it?
7 A. It does.
8 Q. Why on earth would it say that if it was a
9 document that wasn't retroactive, Mr. Thomas?
10 A. My understanding is that this was part of the
11 decision process that you're walking us through, and
12 ultimately headquarters made a decision which was --
13 it wasn't retroactively applicable.
14 Q. It made a decision to not ask Congress for
15 additional funding?
16 A. It did.
17 Q. And from that you intuit that they determined
18 somehow that this policy was not retroactively
19 applicable?
20 A. In part.
21 Q. Even though this says that it is necessary to
22 comply with that very regulation.
23 A. It does.
24 Q. It talks again about, here, "Since much of
25 the area between the existing government property

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
283
Trial
1 line and the proposed taking line is currently

2 undeveloped, but expected to develop rapidly over the
3 next few years, acquisition to bring the reservoirs
4 under current criteria would be a prudent
5 investment"; right?
6 A. Correct.
7 Q. "Bring the reservoirs under current
8 criteria"; right?
9 A. Right.
10 Q. And that criteria is ETL-110-2-22.
11 A. It was.
12 Q. And that's acquired the land up to the crest
13 of those ungated spillways, those auxiliary
14 spillways; correct?
15 A. In part.
16 Q. Let me hand you what's been marked for
17 identification as Plaintiffs' Exhibit 45.
18 Plaintiffs' Exhibit 45 is dated June
19 2nd, 1980, subject, Buffalo Bayou and Tributaries,
20 Spillways for Addicks and Barker Dams"; correct?
21 A. Correct.
22 Q. And it's from Erwin D. Cooper, Chief Real
23 Estate Division; correct?
24 A. Correct.
25 Q. It says that real estate costs -- well,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
284
Trial
1 you're familiar with this document, Mr. Thomas;

2 correct?
3 A. At least some parts of it.
4 Q. It was produced by the Corps of Engineers in
5 this case?
6 A. Yes, sir.
7 Q. No reason to doubt its authenticity; correct?
8 A. No, sir.
10 Your Honor, we would move to admit
11 Plaintiffs' Exhibit 45.
12 MR. SHAPIRO: Our only concern -- I would
13 object. The concern is the same as the last
14 document. This does appear to be a compilation of
15 several documents. What I read on the -- well, it
16 appears to be more than one document.
17 THE COURT: In fact, it states it's a
18 compilation, and it states the date.
19 It's admitted.
21 evidence.)
23 Q. It says that real estate cost estimate
24 reports are enclosed for Addicks and Barker Dams
25 expansion projects; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
285
Trial
1 A. Correct.
2 Q. All right. Let's step through and see what
3 this is.
4 Go to the next page, if you would,
5 USACE327041, paragraph 1, Mr. Trahan writes, "In
6 order for Addicks and Barker Reservoirs to be in
7 strict compliance with ETL-110-2-22, we determined
8 that it would be necessary to acquire real estate
9 interests in the area encompassed by a line
10 representing the elevation of the standard project
11 flood plus appropriate freeboard for the selected
12 plan"; correct?
13 A. Correct.
14 Q. "By coincidence, the standard project flood
15 plus freeboard elevation for all plans is
16 approximately the same as that indicated by the
17 spillway design flood line for plan 2A." Do you see
18 that?
19 A. Yes, sir.
20 Q. And it talks about how that line was
21 previously plotted and furnished to you; correct?
22 A. Correct.
23 Q. And it appears to be attaching a gross
24 appraisal report of those acres, does it not?
25 A. It does.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
286
Trial
1 Q. And so if you look at USACE327044, there's a

2 gross appraisal report for 4,840 acres for Addicks
3 Dam's expansion; right?
4 A. Correct.
5 Q. And at that time, it appears the value of
6 those 4,840 acres over to the spillway design flood,
7 which is what we see on USACE327046, was $272
8 million; correct?
9 A. Correct.
10 Q. And that's signed by Joe R. Walzel,
11 W-a-l-z-e-l, Chief Appraiser, Real Estate Division,
12 Corps of Engineers, Galveston District; correct?
13 A. Correct.
14 Q. So the contemplation was to acquire lands up
15 to the spillway design flood elevation at that time;
16 right?
17 A. Well, that's not what it says, sir.
18 Q. USACE327046, "The purpose of this report is
19 to give a gross real estate estimate for expansion of
20 Addicks Dam by 4,840 acres, or to the spillway design
21 flood, SDF"; right?
22 A. Right.
23 Q. So what about my question was wrong?
24 A. On 327041 it talks about that they're
25 contemplating that for all of the plans, for SPF plus

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
287
Trial
1 freeboard.
2 Q. Which, by coincidence, is the same as the
3 spillway design flood; right?
4 A. Or plan 2A.
5 Q. And you know that the elevations for all the
6 plans were the same in terms of upstream land
7 acquisition, don't you, Mr. Thomas?
8 A. Based on this. That's what this says.
9 Q. Well, I mean, do you have something else to
10 base it on, other than this historical document?
11 A. Some of the other historical documents, I
12 think, talk about it as well.
13 Q. All right. And then we see that there is a
14 gross appraisal report on USACE327051 for the
15 expansion of Barker Dam; right?
16 A. Correct.
17 Q. 3,860 acres; right?
18 A. Correct.
19 Q. And it looks like that was appraised at
20 $80,500,000. I'm looking at ACE327054; yes?
21 A. Correct.
22 Q. And, again, that's up to the spillway design
23 flood elevation.
24 A. Again for plan 2A.
25 Q. All plans had the same spillway design flood

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
288
Trial
1 elevation, Mr. Thomas; true?

3 Q. You don't think so?
5 Q. Okay. We'll see about that. We've got a few
6 more documents coming.
7 So, Mr. Thomas, the Corps of Engineers
8 appraises property as part of its acquisition of
9 property; right? One of the steps.
10 A. I believe so.
11 Q. So it was definitely being contemplated back
12 in 1980 to acquire this additional 8700 acres; right?
13 A. It was.
14 Q. Right.
15 And had that 8700 acres been bought,
16 nobody would have been inundated on August 30th,
17 2017, behind the dams; true?
18 MR. SHAPIRO: Well, if I could, that -- I
19 object. That's a -- that's a vague question. If the
20 government owned the property, the government owned
21 the property.
22 THE COURT: On that premise --
23 I'm sorry. Go ahead.
24 MR. SHAPIRO: I'm not exactly sure what he's
25 asking. I object; that's vague.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
289
Trial
1 THE COURT: That premise is implicit in the

2 question.
4 THE WITNESS: Can you state it again, please?
5 Q. BY MR. EASTERBY: Had the government followed
6 through and purchased those 8700 acres, nobody would
7 have been inundated by the impounded runoff on or
8 about August 30, 2017; right?
9 A. I'm not sure if that's true.
10 Q. Well, we know Harvey inundated about 7,000
11 acres; right?
12 A. Right.
13 Q. 8700 is higher than 7,000.
14 A. It is.
15 Q. So having done this would have avoided
16 thousands of families being inundated by water that
17 was held back by this project; correct?
18 A. It would have reduced the extent of flooding.
19 Q. But the Corps never asked for that
20 authorization, did it?
21 A. We never asked for authorization for this.
22 Q. Okay. So Mr. Thomas, as I understand it, in
23 this time period, the Corps of Engineers' policy was
24 to decline all requests for channelization onto
25 government-owned residential lands; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
290
Trial
1 A. State it again.
2 Q. Back in the 1980 time period, it was the
3 Corps' policy to decline all requests for
4 channelization onto government-owned reservoir lands;
5 correct?
6 A. I believe so. It's been a while since I
7 looked at the policies.
8 Q. Right.
9 And you know that today, several of the
10 channels that come in from the various residential
11 neighborhoods that are adjacent to government-owned
12 land have improved channels that do extend into
14 A. They do.
15 Q. So the old policy was to decline requests to
16 do that; right?
17 A. Well, like I said, I'm not sure.
18 Q. Okay. Let me hand you what's been marked for
20 MR. EASTERBY: Your Honor, apparently we do
21 not have an additional copy of this exhibit, so what
22 I'd like to do now is just tender it on the screen.
23 Counsel can lodge any objections. If it's admitted,
24 we'll furnish a copy later. If it's not admitted, we
25 won't.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
291
Trial
1 Oh, we do have a copy? We do have a

2 copy. Forget what I just said.
3 Q. Do you have Plaintiffs' Exhibit 1206?
4 A. Yes, sir.
5 Q. I'll go very quickly through this. It is a
6 June 30th, 1980 document to Senator John Tower from
7 James Sigler, Colonel, Corps of Engineers; correct?
8 A. Yes, sir.
9 Q. Okay. Second page, you're familiar with this
10 document, Mr. Thomas?
11 A. I think I may have seen it before, but I
12 don't remember its contents.
13 Q. It was produced by the government.
14 A. It was.
15 Q. Any reason to doubt its authenticity?
16 A. Well, it's a draft, but no, sir.
17 MR. EASTERBY: Okay. Based on that, your
18 Honor, we would move to admit Plaintiffs' Exhibit
19 1206.
20 MR. SHAPIRO: Objection; foundation.
21 THE COURT: The Court actually accepts that
22 objection. I don't quite see the relevance of a
23 letter to Senator Tower.
24 MR. EASTERBY: I'll move on, Judge. I'll
25 move on.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
292
Trial
1 Q. Let me hand you what has been marked as

2 Plaintiffs' Exhibit 46. Do you have it?
3 A. Yes, sir.
4 Q. Okay. Great. All right.
5 46 is a document that starts with a
6 routing and transmittal slip dated July 21st, 1980.
7 Do you see that?
8 A. Yes, sir.
9 Q. And it is Bates-stamped USACE474370; correct?
10 A. Correct.
11 Q. This is one of the documents I marked in your
13 A. I think so.
14 Q. And you'll note that on USACE474373, it
15 appears to bear the signature of Gregory B. Masters,
16 Project Engineer; correct?
17 A. Correct.
23 evidence.)
24 Q. BY MR. EASTERBY: Okay. Mr. Thomas, if we go
25 to the second page of the document, it's talking

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
293
Trial
1 about there being a meeting between SWG and SWD.

2 What is SWG?
3 A. That's the Galveston District.
4 Q. And SWD is the division; correct?
5 A. Correct.
6 Q. Subject of the meeting is the spillways;
7 right?
8 A. It is.
9 Q. Okay. If you look at 3A, it talks about how
10 upstream real estate acquisitions would be required
11 for plans 6 and 6A, similar to other alternatives.
12 The spillway crest elevations are essentially the
13 same for all plans except plan 4; right?
15 Q. Do you remember when I asked you before about
16 it being the same for all plans?
17 A. Correct.
18 Q. I guess I was wrong about 4, but the other
19 ones were all the same; correct?
20 A. That's what it said. I thought the two
21 spillways -- I thought that the spillway elevations
22 for 2A was different, but I'm not a hundred percent
23 sure.
24 Q. Okay. Turn with me to page 2, USACE474373
25 paragraph 6, and it says, "In order to refine the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
294
Trial
1 upstream taking line, spillway crest elevation and

2 possible protection of existing development, it will
3 also be recommended that plan 1 be implemented as an
4 interim measure"; correct?
5 A. It does.
6 Q. And "upstream taking line," you know what
7 that means; right?
8 A. I do.
9 Q. What does it mean?
10 A. It's the line indicating where we would
11 acquire real estate.
12 Q. And acquiring real estate to be in compliance
13 with that hydrologic criteria document; correct?
14 A. That's what they said in here so far.
15 Q. Right.
16 Go with me to USACE474375.
18 Q. It's got Addicks and Barker summary of
19 estimated costs for alternative plans; correct?
20 A. Correct.
21 Q. And if you look on the right column,
22 acquisition upstream, comply with ETL-1110-2-22,
23 you'll see they are all the same; right?
24 A. They are.
25 Q. $353 million; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
295
Trial
1 A. Correct.
2 Q. And then it's got a footnote up there,
3 footnote 2, and if you look at footnote 2, it says,
4 "Since the standard project flood elevation for all
5 plans only vary from 109.5 to 110.6 at Addicks, and
6 100.3 to 100.5 at Barker, an upstream taking line
7 elevation of 113.4 at Addicks, and 104.5 at Barker,
8 was selected as representative for current estimating
9 purposes"; right?
10 A. Correct.
11 Q. So that was the upstream taking line
12 elevations as set forth in this document; correct?
14 Q. Well, it is exactly what it says; right?
15 A. It is what it says.
16 Q. Go with me to USACE474376, the OCE guidance
17 on Addicks and Barker.
18 So this is the Office of Chief Engineer
19 saying this is our guidance on what is to be done
20 with Addicks and Barker; correct?
21 A. It is.
22 Q. Number one, "Make the dam safe for the
23 spillway design flood"; right?
24 A. Correct.
25 Q. Two, "Make sure the reservoirs meet current

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
296
Trial
1 Corps criteria for real estate requirements"; right?

2 A. Correct.
3 Q. "Including downstream hazardous areas";
4 right?
5 A. Right.
6 Q. "Upstream, ER405-12, ETL-110-2-22, standard
7 project flood plus freeboard"; right?
8 A. Correct.
9 Q. "No effect on areas outside the Buffalo Bayou
10 basin not previously impacted by flows from this
11 basin"; right?
12 A. Correct.
13 Q. So the Office of Chief Engineers is saying
14 this is what we want you to do for this project;
15 right?
16 A. Right.
17 Q. One got done; right?
18 A. It did.
19 Q. Did three get done?
20 A. They suggested that it did.
21 Q. Two did not get done, did it?
22 A. It did not.
23 Q. And that's because that -- that's because
24 nobody ever asked; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
297
Trial
1 Q. You don't think anybody ever asked?

2 A. I think that's not necessarily the reason.
3 It's the ultimate reason.
4 Q. And, again, had it been done, the reservoir
5 pool during Harvey would have stayed on
6 government-owned land entirely; correct?
7 A. Well, like I said before, I'm not sure about
8 the exact limits. It would have been more on
10 Q. Well, in the interests of saving some time, I
11 won't go through the math with you, but I'll
12 represent to you that it would have stayed on
13 government-owned land, and we'll prove that with
14 another witness, so let me move on.
15 Okay. Let me hand you what's been
16 marked for identification as Joint Exhibit 26.
17 Okay. Joint Exhibit 26 is a September
18 5th, 1980 document, subject, Buffalo Bayou and
19 Tributaries, Spillways for Addicks and Barker Dams;
20 correct?
21 A. Correct.
22 Q. And since this is a Joint exhibit, I'll just
23 take a shot of asking that it be admitted.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
298
Trial
1 Q. BY MR. EASTERBY: You're familiar with this

2 document, Mr. Thomas? It was marked in your
4 A. I think so.
5 Q. It appears to be signed by UG Robinson,
6 Brigadier General, USA; correct?
7 A. Correct.
8 Q. And you have no reason to doubt the
9 authenticity of it or that there's been any changes
10 made to it or anything like that; right?
11 A. I do not.
12 MR. EASTERBY: Your Honor, we ask that it be
13 admitted, Joint Exhibit 26.
14 MR. SHAPIRO: Counsel asked a question that
15 it wasn't clear whether the witness recognized the
16 document. The question asked was, do you recognize
17 the document; it was used in your deposition. So I
18 think the witness' answer isn't clear.
19 If the witness recognizes the document,
20 we have no objection. Otherwise, we maintain our
21 foundation objection.
22 THE COURT: The Court again invokes Federal
23 Rule of Evidence 901(8) and admits the document.
25 evidence.)

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
299
Trial

2 Q. So it says in number one, "Addicks and Barker
3 presently impose a potentially catastrophic flood
4 problem to the city of Houston"; right?
5 A. It does.
6 Q. It says that since the problem first surfaced
7 in a joint meeting on 16 August '77, no decisions
8 have been reached on solving the inadequate spillway
9 capacity which could lead to a dam failure; right?
10 A. Correct.
11 Q. And it's basically saying we need to do
12 something quickly; right? Speedy approval.
13 A. It does say speedy approval.
14 Q. Okay. It talks about there has been some
15 repairs in the past to the outlet works, but those
16 repairs did not address the problems of inadequate
17 spillway capacity; correct?
18 A. Correct.
19 Q. Also did not address possible flood hazard
20 areas downstream from the structures; correct?
21 A. Correct.
22 Q. Also did not address upstream areas subject
23 to flooding outside existing government fee line;
24 correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
300
Trial
1 Q. Then it says, "The public has not been

2 informed of any of these problems"; right?
3 A. Correct.
4 Q. Turn the page to paragraph 6, if you would.
5 It's saying, "The acquisition of upstream lands to
6 comply with ETL-110-2-22 has been estimated to cost
7 $353 million"; correct?
8 A. Correct.
9 Q. "These areas are developing quickly"; right?
10 A. Correct.
11 Q. "Should additional lands, primarily
12 undeveloped ones, not be purchased now, the
13 opportunity will probably be lost forever"; correct?
14 A. Correct.
15 Q. And then if you move down the page a little
16 bit, same paragraph, it says, "The original real
17 estate lines are now 4-1/2 and 3.1 feet below the
18 current standard project flood levels for Addicks and
19 Barker respectively"; right?
20 A. Correct.
21 Q. So at this point in time, it's absolutely
22 known by the Corps of Engineers that government-owned
23 land is 4-1/2 and 3.1 feet below the standard project
24 flood; right?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
301
Trial
1 Q. And that's the flood that's reasonably

2 expected to occur; right?
3 A. The flood that reasonably has the
4 characteristics of the worst storm expected to occur
5 in the watershed.
6 Q. It's the storm used for real estate
7 acquisition; right?
8 A. In our current guidance for urban areas.
9 Q. It seems back at the same time period they
10 were saying it was necessary then, inasmuch as they
11 say the original lines were 4-1/2 and 3.1 feet below
12 the current standard project flood levels; correct?
13 A. Correct.
14 MR. SHAPIRO: Object; that's more of a
15 statement by counsel than a question.
17 Q. BY MR. EASTERBY: In any event, Mr. Thomas,
18 since 1980, the Corps of Engineers has never
19 attempted or asked for authorization to get the money
20 to rectify this problem of inadequate
21 government-owned land; is that correct?
22 MR. SHAPIRO: Objection; asked and answered.
24 THE WITNESS: Can you say it again, please?
25 Q. BY MR. EASTERBY: In all this time, the Corps

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
302
Trial
1 of Engineers has never requested authorization to

2 purchase the land to address the inadequate
3 government-owned land; correct?
4 A. Correct.
5 Q. Let me hand you what's been marked for
7 Okay. Plaintiffs' Exhibit 48, September
8 9th, 1980, it's a telephone or verbal conversation
9 record; correct?
11 Q. Subject of conversation, rehabilitation of
12 Addicks and Barker Dams; right?
13 A. Correct.
14 Q. Bill Johnson called, and he's with SWDED-TG.
15 Do you know what that means?
16 A. I'm not sure what the TG is.
17 Q. What about the SWDED?
18 A. Should be Southwestern Division. I'm
19 assuming the ED is engineering division.
20 Q. And the person called was Mr. Jones at the
21 Galveston District?
22 A. Yes, sir.
23 Q. Okay. It appears to be saying here that
24 Mr. Johnson carried -- Mr. Johnson said that General
25 Robinson carried –

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
303
Trial
1 MR. SHAPIRO: Objection; it's not in

2 evidence.
3 MR. EASTERBY: Oh, excuse me.
4 Q. Is this a document you're familiar with,
5 Mr. Thomas?
6 Again, it was one that was marked in
7 your deposition, and we discussed it at some length.
8 A. Probably. I don't remember this particular
9 one, but that's okay.
10 Q. It was produced by the Corps of Engineers;
11 correct?
12 A. It was.
13 Q. Appears to be an accurate historical record
14 from that time period, does it not?
15 A. I wouldn't know if it was accurate or not.
16 Q. Do you have any reason to think it's
17 inaccurate?
18 A. I do not.
19 MR. EASTERBY: Your Honor, we move that it be
20 admitted into evidence.
21 MR. SHAPIRO: Object on two grounds.
22 First, there is some handwritten
23 notations which the witness has not been asked about,
24 and secondly, lack of foundation.
25 THE COURT: The objections are taken to heart

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
304
Trial
1 in part.
2 The handwritten annotations will be
3 ignored.
4 On the other hand, the document itself
5 is admitted under Rule 901(8). I'm sorry, it's
6 (b)(8).
8 evidence.)
9 Q. BY MR. EASTERBY: Understood, Judge.
10 It says, "General Robinson carried SWD's
11 fifth endorsement" -- am I not allowed to read the 2
12 that's in there that somebody marked in?
13 THE COURT: You're not.
14 Q. BY MR. EASTERBY: Okay. "SWB's fifth
15 endorsement, SWG's letter report on Addicks and
16 Barker spillways to OCE last Friday, and OCE is in
17 agreement that plan 1 should be implemented ASAP";
18 right?
19 A. Correct.
20 Q. But that never happened?
21 A. It did not.
22 Q. "SWD concurred in their endorsement with the
23 District that no downstream real estate should be
24 purchased and stated that while there are a lot of
25 hang-ups on the purchase of lands upstream, it is not

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
305
Trial
1 critical, and there should be no slowdown on the

2 ultimate decision with respect to the taking
3 timeline."
4 MR. EASTERBY: I don't know what to say,
5 Judge.
6 THE COURT: You don't have to say anything.
7 Q. BY MR. EASTERBY: Apparently OCE is going
8 along with this also; correct?
9 A. Correct.
10 Q. So, Mr. Thomas, I read this to say that
11 they're definitely not going to buy the downstream
12 real state. Are you with me on that?
13 A. I am.
14 Q. What do you understand them to be saying
15 about the upstream land acquisition?
16 A. What I think they're saying is that they're
17 deferring the decision to a later date.
18 Q. Okay. Let me hand you what's been marked for
20 This is a draft public information
21 notice dated October 23rd, 1980; correct, Mr. Thomas?
22 A. Is that the date under there?
23 Q. I'm looking in the top right.
24 A. Maybe.
25 Q. If you look at the second and third page,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
306
Trial
1 it's easier to see.

2 A. Oh, thank you. Yes.
3 Q. And are you able to tell from the header who
4 wrote this document? Strike that.
5 Look at the last page, if you would.
6 Can you tell who authored this draft
7 public information notice?
8 A. You mean who signed it or actually wrote it?
9 Q. Well, I mean it's got James Sigler's name at
10 the end; right?
11 A. It does.
12 Q. And that would have been from the Galveston
13 District; right?
14 A. It would.
15 Q. And this was produced by the government;
16 true?
17 A. Yes, sir.
18 Q. Any reason to doubt its authenticity or that
19 it's an accurate historical document that's been
20 maintained all these many years down at the Galveston
21 District?
22 A. I'll note that it's a draft, but I don't have
23 any knowledge of something wrong with it other than
24 that.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
307
Trial
1 Plaintiffs' Exhibit 85.

2 MR. SHAPIRO: Two objections: One, lack of
3 foundation, and then secondly, again, there is some
4 handwritten notations here that the witness has not
5 been asked about.
6 THE COURT: The Court will ignore the
7 handwritten notations; on the other hand, the
8 document itself is admitted under Federal Rule of
9 Evidence 901(b)(8).
11 evidence.)
13 Q. So, Mr. Thomas, "The purpose of this is to
14 inform public of plan modifications to Addicks and
15 Barker Dams to ensure their safety during very
16 extreme flood events; correct?
17 A. Correct.
18 Q. And if you turn the page to USACE54330, there
19 is a section on adequacy of reservoir lands; correct?
20 A. Correct.
21 Q. And it talks about how the extent of lands
22 required for Addicks and Barker Reservoirs when
23 constructed was completely adequate to meet criteria
24 and use at that time; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
308
Trial
1 Q. However, more refined hydraulic computations,

2 design criteria adopted in recent years from
3 reservoirs designed and constructed by the Corps of
4 Engineers, and watershed developments upstream of
5 Addicks and Barker Reservoirs, indicate that the
6 extent of federally owned lands are inadequate";
7 correct?
8 A. Correct.
9 Q. Okay. Now, this notice never got sent out.
10 Do you know that, Mr. Thomas?
11 A. I don't know that.
12 Q. All right. Well, let's turn to the next
13 document and see if we can establish that very
14 quickly.
15 I'd like to hand you what's been marked
16 for identification as 86, which should be the next
17 tab in your binder.
18 86 is a November 28, 1980 first
19 endorsement; subject, Buffalo Bayou and Tributaries,
20 spillways for Addicks and Barker Dams, public
21 involvement; correct?
22 A. Right, this one also has another date kind of
23 hidden in there, it looks like.
24 Q. That stamp date?
25 A. Exactly.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
309
Trial
1 Q. Can you read it?

2 A. It looks like 1991.
3 THE COURT: It looks like 19 January 1991 to
4 the Court.
6 Q. BY MR. EASTERBY: It's 11 years later, so who
7 knows. But it's signed by Hugh B. Robinson,
8 Brigadier General, USA, Division Engineer; correct?
9 A. Correct.
10 Q. And he says, "Your proposed public
11 information notice has been reviewed. Since there
12 were several areas that seemed to be too technical,
13 complicated and lengthy for the general public to
14 consume --"
15 MR. SHAPIRO: Objection; this is not yet in
16 evidence.
17 MR. EASTERBY: Oh, excuse me, your Honor.
18 Q. Mr. Thomas, again, is this a historical
19 document that has been maintained down at the
20 Galveston District these many years?
21 A. I would assume so.
22 Q. Do you have any reason to doubt that?
23 A. I do not.
24 Q. Any reason to doubt the authenticity of it?
25 A. I do not.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
310
Trial
1 MR. EASTERBY: Your Honor, we move that it be

2 admitted, Plaintiffs' Exhibit 86.
4 MR. SHAPIRO: Your Honor, may I ask two
5 questions about this document.
6 THE COURT: Yes, you may. I'm sorry.
8 BY MR. SHAPIRO:
9 Q. Mr. Thomas, have you ever seen this document
10 before?
11 A. Maybe, but I'm not sure.
12 Q. If you look at the second page of this
13 document, this is the one labeled USACE543322. Is it
14 also labeled draft?
15 A. It is.
16 MR. SHAPIRO: We object on the grounds of
17 lack of foundation.
18 MR. EASTERBY: Your Honor, if I could get
19 into the document, it says on the front page it's
20 attaching a draft.
21 THE COURT: This is true.
22 Well, we have the complication of the
23 dates. There are two dates, one in 1980.
24 May I see the first page again, please?
25 All right. 28 November 1980.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
311
Trial
1 MR. EASTERBY: Your Honor, I think that's an

2 '81, not a '91.
3 THE COURT: I think you're right. I stand
4 corrected.
5 Mr. Shapiro.
6 MR. SHAPIRO: Same objection.
7 THE COURT: All right. The document is
8 admitted under Federal Rule of Evidence 901(b)(8).
10 evidence.)
12 BY MR. EASTERBY:
13 Q. Mr. Thomas, the prior Exhibit 85, dated
14 October 23rd, '80, was the Galveston District's
15 public information notice. Do you remember that? We
16 just went over it?
17 A. Right.
18 Q. And it had a discussion of inadequate
20 A. Right.
21 Q. So in response, November 28th of '80,
22 Southwestern Division, which is above the district,
23 says, "Your draft is too technical, complicated and
24 lengthy for the public to consume. We've drafted a
25 more concise version dealing more directly with the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
312
Trial
1 problem of inadequate spillways for Addicks and

2 Barker Dams"; correct?
3 A. Correct.
4 Q. "This version is offered for your
5 consideration"; right?
6 A. Correct.
7 Q. And if you look through the draft that the
8 division put together, you'll find that the portion
9 on inadequate government-owned land has been
10 completely removed; correct?
11 A. I'll need a minute.
12 Q. Take your time.
13 A. Could you repeat it for me one more time?
14 Q. The question was, Mr. Thomas, that in this
15 version, the section on inadequate government-owned
16 land has been completely removed; correct?
17 A. Correct.
19 Your Honor, it's 5:30. It's a good
20 stopping point inasmuch as I have been informed I do
21 not have additional copies of my next exhibit.
22 THE COURT: That's wise.
23 We are scheduled to begin tomorrow
24 morning at 9:00, and we are scheduled to close at
25 5:00. This is a marathon, not a sprint, and so we'll

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
313
Trial
1 stop for today.

2 But first, let's have the elapsed time
3 that was taken by the examination and testimony
4 today.
5 LAW CLERK: 5 hours and 31 minutes.
6 THE COURT: 5 hours and 31 minutes, all
7 attributable to the Plaintiff.
8 Mr. Charest.
9 MR. CHAREST: We may have a word about that,
10 Your Honor, after the successful introductions for
11 evidentiary issues. We're going to raise the timing
12 question later, so we will have a question about that
13 at some point, sir.
14 THE COURT: You will?
15 MR. CHAREST: Yes, sir.
16 THE COURT: Okay. I can understand that.
17 Are there any other comments before we
18 break for the evenings?
19 Mr. Shapiro?
20 MR. SHAPIRO: Nothing here, your Honor.
21 THE COURT: What?
22 MR. SHAPIRO: No, your Honor.
23 THE COURT: All right. Thank you.
24 Mr. Charest, do you need any of us to
25 stay for your commentary?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
314
Trial
1 MR. CHAREST: I'm saying, sir, that at some

2 point in time, we plan to raise the imbalance of the
3 allocation of the time towards our side from today.
4 That's my point.
5 THE COURT: Well, I'll entertain it,
6 obviously, but the Court is dubious about putting in
7 place any unequal allocation. We'll see.
8 MR. CHAREST: Yes, sir.
9 THE CLERK: The Court is in recess for the
10 evening. We will reconvene at 9:00 tomorrow morning.
11 LAW CLERK: All rise.
12 The Court is now in recess.
13 (The proceedings adjourned at 5:32 p.m.)
14
15
16
17
18
19
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
315
Trial
1 C E R T I F I C A T E
2
3 I, DAVID M. LEE, do hereby certify that
4 the foregoing pages constitute a full, true, and
5 accurate transcript of the proceedings had in the
6 foregoing matter, all done to the best of my skill
7 and ability.
8 WITNESS my hand this 8th day of May
9 2019.
10
11 s/Davie M. Lee
12 DAVID M. LEE, RMR, CRR
13
14
15
16
17
18
19
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
316
Trial
1 ADMITTED EXHIBITS
2
3 JX PAGE DESCRIPTION
4 5 191 6/1/1940 Buffalo Bayou Definite
5 Project Report
6 7 196 6/1/1940 Drawings that Accompany 1940
7 USACE Definite Project Report for
8 Buffalo Bayou, TX
9 15 209 6/30/1960 USACE Report on the
10 Feasibility of Gating the
11 Uncontrolled Conduits at Barker and
12 Addicks Dam, June 30, 1960
13 16 213 4/1/1962 Reservoir Regulation Manual
14 for Addicks and Barker Reservoirs,
15 USACE Galveston District
16 22 253 August 1977 USACE Original 1977
17 Hydrology Report for Addicks and
18 Barker Reservoirs
19 26 298 9/5/1980 Memorandum regarding
20 spillways and acquisition of
21 additional land upstream
22 94 74 2/24/2010 Addicks and Barker Upstream
23 Summary Report
24 110 62 11/1/2012 Addicks and Barker Water
25 Control Manual

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
317
Trial
1 116 109 4/2/2014 Fort Bend FIRM panel map

2 number 48157C0130L
3 118 118 5/22/2014 Addicks and Barker
4 Emergency Action Plan
5 143 151 8/25/2017 USGS 08073000 Gage Data for
6 Addicks Reservoir storage acre-feet
7 and elevation 8/25/2017 - 9/10/2017
8 144 151 8/25/2017 USGS 08072500 Gage Data for
9 Barker Reservoir storage acre-feet
10 and elevation 8/25/2017 - 9/10/2017
11 228 160 6/1/2018 USACE FY2017 Annual Water
12 Control Report
13 233 129 7/23/2018 Photo of upstream view of
14 Addicks Reservoir
15 239 131 8/1/2018 Photo of upstream view of
16 Barker Reservoir
17
18 PX PAGE DESCRIPTION
19 25 168 10/27/17 Memo for Commander, SW
20 Division and Report of Performance
21 34 215 01/24/69 Changes to Engineer
22 Regulations 405-2-150
23 35 219 06/24/70 ETL 1110-2-22, Hydrologic
24 Criteria for Acquisition of Reservoir
25 Lands

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
318
Trial
1 37 235 05/03/73 Memo re: Encroachment on

2 Private Lands
3 38 242 08/06/74 Inspection Report No. 2 and
4 related memos
5 39 247 10/29/74 Inspection Report No. 2
6 (dated June 1974) and related memos
7 42 267 05/01/78 Draft of VII - Water
8 Control Plan
9 44 278 11/26/79 Various correspondence re:
10 A&B
11 45 284 06/02/80 Addicks Dam expansion
12 report
13 46 292 07/18/80 Disposition form re A&B
14 meeting
15 48 304 09/09/80 Conversation Record re
16 Rehabilitation of A&B
17 52 112 01/01/92 Addicks Floodplain
18 Development Map
19 53 112 01/01/92 Addicks Floodplain
20 Development Map
21 85 307 10/23/80 Public Information Notice -
22 planned modifications
23 86 311 11/28/80 Draft Public Information
24 Notice
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
319
Trial
1 777 203 1945 09 01 - Analysis of Design -

2 September 1945 - Addicks Dam
3 1660 147 10/9/2015 Addicks and Barker
4 Reservoir Inundation
5 1936 233 7/17/1971 Teletype re Real Estate
6 Acquisition
7 2297 149 Iteration of Plaintiff's Exhibit 1660
8 with Addicks layer populated to 115
9 feet and Barker populated to 108 feet
10 2298 157 Depiction of the Harvey reservoir
11 pools
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

2019-05-06 Harvey - Trial Testimony Day 1 (Opening, Thomas) - FULL

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

2019-05-06 Harvey - Trial Testimony Day 1 (Opening, Thomas) - FULL

Загружено:

Авторское право:

Доступные форматы

1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

1 MR. IRVINE: Charles Irvine on behalf of the

For The Record, Inc.

1 David Dain, United States Department of

For The Record, Inc.

1 tends to get trapped and gets deadened, so you'll

For The Record, Inc.

1 Plaintiffs' -- it relates to the Plaintiffs' opening

For The Record, Inc.

1 appropriate. It's also a clip or two from the

For The Record, Inc.

1 Your Honor, I have the privilege of

For The Record, Inc.

1 was not an accident. It was part of the design, and

For The Record, Inc.

1 In this case, for a takings case, we

For The Record, Inc.

1 control manual. It's not like the Corps of Engineers

For The Record, Inc.

1 In terms of causation, in the back of

For The Record, Inc.

1 sole cause of structural flooding was the dams. So

For The Record, Inc.

1 conduct business, permanently took components of the

For The Record, Inc.

1 been anticipated. That's the unforeseen-act-of-God

For The Record, Inc.

1 last year -- which was in 1980 -- was within 40 miles

For The Record, Inc.

1 most. And that's when the government started saying,

For The Record, Inc.

1 We project it's going to happen. This is not any

For The Record, Inc.

1 number of houses will be damaged by rare

For The Record, Inc.

1 of a burden upstream, every single decision, sir.

For The Record, Inc.

1 Fact: It would require a major storm to

For The Record, Inc.

1 the Corps is under a Congressional mandate to protect

For The Record, Inc.

1 my copy of Defendant's Exhibit 734. This is a

For The Record, Inc.

1 the Addicks and Barker watersheds, the storm has been

For The Record, Inc.

1 receded, the landowners upstream and downstream of

For The Record, Inc.

1 Those downstream landowners claimed that

For The Record, Inc.

1 We expect that the parties will also

For The Record, Inc.

1 fail, including that claim -- first, the claim from a

For The Record, Inc.

1 during, and after the storm.