2019-05-07 Harvey - Trial Testimony Day 2 (Thomas, Lindner) - 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 Tuesday, May 7, 2019
15 9:00 a.m.
16 Trial Volume 2
17
18
19 BEFORE: THE HONORABLE CHARLES F. LETTOW
20
21
22
23
24
25 DAVID M. LEE, RMR, CCR
321
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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/7/2019
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.

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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

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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

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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

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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

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1 I N D E X
2
3 Witness: Direct: Cross: Redir: Recross: Vr Dire:
4 Thomas, III 330 439/461
5 Lindner 543 593 642
6
7 E X H I B I T S
8 Number: Marked: Admitted:
9 Joint:
10 23 497
11 31 337
12 44 363
13 52 372
14 91 437
15 200 592
16 229 554
17
18 Plaintiffs’:
19 27 350
20 50 348
21 51 341
22 59 427
23 61 395
24 62 425
25 63 425

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1 E X H I B I T S (Continued)
3 Plaintiffs’:
4 64 435
5 65 435
6 87 511
7 105 523
8 200 648
9 268 419
10 271 415
11 446 332
12 707 463
13 1213 536
14 2289 400
15 2290 412
16 2292 405
17
18 Defendant’s:
19 25 480
20 294 574
21 295 577
22 556 633
23 682 604
24 683 585
25 684 586

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1 E X H I B I T S (Continued)
3 Defendant’s:
4 695 616
5 734 447
6 737 619
7 819 479
8 821 476
9 823 477
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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1 Houston, Texas
2 May 7, 2019
3 9:02 a.m.
4
5 P R O C E E D I N G S
6 IN OPEN COURT:
7 THE COURT: Please be seated.
8 Good morning.
9 Welcome back.
10 We're here for a continuation of the
11 trial in the Upstream Addicks and Barker Reservoir
12 cases.
13 Mr. Thomas, if you would return to the
14 witness stand, that would be helpful.
15 Please make yourself comfortable.
16 MR. EASTERBY: I can't hear the Court.
17 THE COURT: Is that better?
18 MR. EASTERBY: Yes, sir.
19 Thank you.
20 Mr. Easterby, you may proceed.
21 MR. EASTERBY: Thank you, your Honor.
22 ROBERT CHARLES THOMAS, III,
23 called as a witness herein, having been previously
24 duly sworn, resumed the witness and testified as
25 follows:

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1 DIRECT EXAMINATION (CONT'D)

2 By MR. EASTERBY:
3 Q. Mr. Thomas, you understand that you're still
4 under oath?
5 A. Yes, sir.
6 Q. Okay. We picked up or we left off yesterday,
7 and we were talking about some public information
8 notices that had been prepared in 1981. Do you
9 recall that?
10 A. Yes, sir.
11 Q. Okay. What I'd like to do is show you what's
12 been marked for identification as Plaintiffs' Exhibit
13 446.
14 And 446, Mr. Thomas, is something that
15 says "News Release, Public Affairs Office," dated
16 November 19, 1981; correct?
17 A. Correct.
18 Q. And it says "Dam Safety Plans Announced by
19 Corps for Addicks and Barker Reservoir"; correct?
20 THE COURT: Mr. Easterby, you may not read
21 from the exhibit.
22 MR. EASTERBY: Oh, yes, sir.
23 Q. So, Mr. Thomas, you understand this is a
24 document that has been produced in this litigation?
25 A. Yes, sir.

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1 Q. The Bates stamp down there says FB, and you

2 have an understanding that means it was produced by
3 Fort Bend County?
4 A. Only because you told me.
5 Q. Okay. I'll represent to you that's what it
6 means. That's what that Bates stamp indicates.
7 And Mr. Thomas, the fact it's in the
8 possession of Fort Bend County, would that suggest to
9 you that this was actually issued as a news release?
10 A. Maybe.
11 Q. Do you have any reason to doubt the
12 authenticity of this document?
13 A. I do not.
14 MR. EASTERBY: All right. Your Honor, we
15 would move to admit Plaintiffs' Exhibit 446.
16 MR. SHAPIRO: I don't believe this witness
17 has testified that he's seen this document, so I
18 would object on foundation grounds.
19 MR. EASTERBY: Your Honor, it doesn't matter
20 if he's seen the document.
21 THE COURT: Let me ask a question, and we'll
22 proceed.
23 Mr. Thomas, is this in a style and
24 format that the Corps of Engineers had used for its
25 news releases?

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1 THE WITNESS: I would assume so.

2 THE COURT: All right. Under the terms of
3 Federal Rule of Evidence 901(b)(8), it's admitted.
4 (Plaintiffs' Exhibit 446 was received in
5 evidence.)
7 Q. So Mr. Thomas, we looked yesterday, and there
8 had been an initial proposed news release that had
9 contained a discussion of the inadequate
10 government-owned land. Do you recall that?
11 A. Yes.
12 Q. And then we saw that the Southwestern
13 Division removed all that language from their draft
14 of it; correct?
15 A. Correct.
16 Q. And so this Exhibit 446, which appears to
17 have been issued, here again, we see that there's no
18 mention whatsoever of inadequate government-owned
19 land; correct?
20 A. I'll need just a second.
21 If you could repeat the question for me
22 to be sure.
23 Q. It is correct that this news release that
24 appears to have been issued contains no mention of
25 the inadequate government-owned issue; correct?

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1 A. Correct.
2 Q. All right. So this means that in 1981 the
3 Corps of Engineers did not tell the public about the
4 inadequate government-owned land issue; correct?
5 A. In this news release.
6 Q. And you're not aware of it doing so at that
7 same time period in any other way; correct?
8 A. That's not true.
9 Q. Okay. Well, I'll tell you what: I'll let
10 counsel for the government pick it up on cross if
11 there is such a document.
12 So, Mr. Thomas, it says here on page 1
13 of Exhibit 446, at the bottom, After talking about
14 the changes in hydrology, Tropical Storm Claudette,
15 which inundated the Houston area in July '79, could
16 have dropped 30 inches of rain on Addicks and Barker;
17 correct?
18 A. Correct.
19 Q. So the point that's making is, if a storm
20 like that had come into these watersheds, it would
21 have caused potentially dam failure; right?
22 A. Correct.
23 Q. And, of course, that also would have caused a
24 corresponding reservoir pool that would have
25 submerged private property; right?

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1 A. Correct.
2 Q. Mr. Thomas, you know that in the early '80s,
3 this was the time period when developers were
4 acquiring that land behind Addicks and Barker that
5 used to be prairies and rice farms to turn them into
6 residential subdivisions; correct?
7 A. Correct.
8 Q. And, you know, I think the biggest land
9 transaction we ever had in these parts was in 1984,
10 when Mr. Kickerillo acquired 4700 acres behind
11 Barker, which is now Cinco Ranch. You're aware of
12 that, aren't you?
13 A. I was not.
14 Q. Oh, you weren't? Okay.
15 Is it fair to say that when a storm like
16 Claudette happened, that is a significant issue for
17 the Corps of Engineers, seeing that kind of storm
18 that close to Houston?
19 A. How do you mean?
20 Q. Well, I mean, it shows you that it's
21 possible, and it just occurred, that a major storm
22 that was only a few miles away, had it been in this
23 watershed, would have caused a dam failure. That's a
24 significant issue that raises your attention, doesn't
25 it?

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1 A. It did result in some additional

2 reevaluations.
3 Q. All right. So in 1984, the Galveston
4 District prepared a General Design Memorandum; is
5 that right?
6 A. Correct.
7 Q. And I believe we established yesterday the
8 plan that was selected was plan 5B; correct?
9 A. Correct.
10 Q. So what is a General Design Memorandum,
11 Mr. Thomas?
12 A. It's a document that documents the design of
13 the project generally to be constructed.
14 Q. What purpose does it serve? Why is it
15 created?
16 A. To communicate the significant engineering
17 findings so that they're well-documented so we
18 understand what we're building and why we're building
19 it.
20 Q. And when you say communicate, is the General
21 Design Memorandum, is that something that's issued to
22 the public or it's publicly available, or is it one
23 of those for official use only or not for public
24 disclosure documents?
25 A. They're not usually issued. They're also not

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1 usually labeled as FOUO.

2 Q. FOUO, for official use only?
3 A. Right.
4 Q. And that designation means it's not to be
5 shared with the public; right?
6 A. Without review.
7 Q. Understood.
8 Let me hand you what's been marked for
9 identification as Joint Exhibit 31.
10 And Joint Exhibit 31 is a document Bates
11 stamped USACE487625.
12 I believe I got there, Mr. Thomas, by
13 looking at the second page and counting back one.
14 Are you with me on that?
15 A. Correct.
16 Q. So you understand this is produced by the
17 Corps of Engineers?
18 A. Correct.
19 Q. And it's dated, apparently, around 13
20 February 1984?
21 A. Correct.
22 Q. "Subject: Consideration of alternatives for
23 preserving integrity of Addicks and Barker reservoirs
24 and embankments"; correct?
25 A. Correct.

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1 Q. And this is a document that you saw in your

2 deposition; correct?
3 A. I think so.
4 Q. You did.
5 And you have no reason to doubt its
6 authenticity or the fact that it's been stored these
7 many years down in the Galveston District?
8 A. I do not.
9 MR. EASTERBY: Your Honor, we would move to
10 at admit Joint Exhibit 31 into evidence.
11 MR. SHAPIRO: No objection.
12 There is some handwritten notation on
13 this document, but no objection.
14 THE COURT: Admitted.
15 (Joint Exhibit 31 is received in
16 evidence.)
17 Q. BY MR. EASTERBY: Okay. Mr. Thomas, if you
18 turn to the second page of this document, which is
19 USACE487626, it says at the top, "The PMF..."
20 What does that stand for?
21 A. Probable maximum flood.
22 Q. The probable maximum flood on an empty pool
23 is considered a probable occurrence when compared
24 with the 1979 Claudette rainfall event which occurred
25 some 40 miles south of the reservoirs; correct?

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1 A. Correct.
2 Q. So this means the Corps of Engineers is well
3 aware that a storm of that magnitude is indeed a
4 probable occurrence in this area?
5 A. We have calculated statistics related to
6 different pool levels.
7 Q. The question I asked was, as it states in
8 this document, the Corps of Engineers was well aware
9 that the probable maximum flood on an empty pool was
10 considered to be a probable occurrence, and the Corps
11 of Engineers knew that; right?
12 A. So, in this case, the way that probable would
13 be defined is related to the probable maximum flood,
14 which means the worst that could ever happen, not
15 that we're saying that it's probably going to happen.
16 Q. So when it says "probable occurrence," that
17 doesn't mean probable occurrence?
18 A. It doesn't mean in the common way that you're
19 thinking of, this is probably going to happen, like
20 it's probably going to rain tomorrow. It probably
21 could not exceed is what the probable/improbable
22 maximum flood means.
23 Q. So it states, The probable maximum flood on
24 an empty pool is considered a probable occurrence.
25 That's what it says; right?

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1 A. That's what it says.

2 Q. And you're saying that we're to disregard its
3 ordinary understood meaning and give it some other
4 interpretation?
5 A. That's what probable maximum flood means.
6 Q. And it does say probable maximum flood, and
7 then it says that flood is a probable occurrence in
8 light of Claudette; right?
9 MR. SHAPIRO: Your Honor, I object to the
10 questioning. This is Plaintiffs' argument. The
11 witness had provided his explanation.
12 THE COURT: Sustained.
13 That is argumentative, Mr. Easterby.
14 MR. EASTERBY: All right. Well, I think I
15 made my point, Judge. I'll move on.
16 Q. Okay. Mr. Thomas, I'm going to hand you
17 what's been marked for identification as Plaintiffs'
18 Exhibit 51. It is rather large.
19 And Plaintiffs' Exhibit 51 is a document
20 entitled Buffalo Bayou and Tributaries, Texas,
21 Addicks and Barker Dams, Dam Safety Assurance General
22 Design Memorandum; correct?
23 A. Correct.
24 Q. It's Bates-stamped on the front, USACE013558;
25 correct?

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1 A. Correct.
2 Q. And we talked a few minutes ago about the
3 1984 General Design Memorandum; correct?
4 A. Correct.
5 Q. Is that what this document is?
6 A. It is.
7 Q. And you're familiar with this one,
8 Mr. Thomas, aren't you?
9 A. Yes, sir.
10 Q. In fact, when you were deposed, I believe you
11 prepared a list of the documents you had reviewed for
12 your deposition; right?
13 A. Correct.
14 Q. And this is one of those documents.
15 A. Correct.
16 Q. And it's been maintained down at the Corps of
17 Engineers; correct?
18 A. Correct.
19 Q. No reason to doubt it's not authentic or any
20 kind of problems?
21 A. I do not.
22 MR. EASTERBY: All right. Plaintiffs move to
23 admit Plaintiffs' Exhibit 51.

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2 evidence.)
3 Q. BY MR. EASTERBY: So, Mr. Thomas, turn with
4 me, if you would, to the document that's
5 Bates-stamped USACE013603. It's page 36 of the
6 document.
7 A. (Witnesses complies.)
8 Got it.
9 Q. Okay. And I will direct your attention to
10 the Section 5.4.5, Spillway Design Flood Hydrographs.
11 Do you see that?
12 A. Yes, sir.
13 Q. What is a spillway design flood hydrograph?
14 A. It represents the amount of water over time
15 for the design flood.
16 Q. Right.
17 I think it shows the inflows coming in,
18 and it shows what the maximum storage would be if
19 that spillway design flood occurred; is that fair?
20 A. Yes.
21 Q. And it references here on 5.4.5 that plates
22 A-7 and A-8 represent those hydrographs; correct?
23 A. Correct.
24 Q. Okay. Turn with me if you would back to
25 plate A-7. It's on USACE486024.

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1 A. (Witness complies.)
2 Q. Are you there, Mr. Thomas?
3 A. Yes, sir.
4 MR. EASTERBY: Okay. 486024, Matt.
5 Your Honor, do you have a copy in front
6 of you?
7 THE COURT: I can get it.
8 MR. EASTERBY: Never mind. I think we're
9 getting there. There you go. You've got it. Zoom
10 in there if you would.
11 Q. Mr. Thomas, you see at the bottom right it
12 says plate A-7?
13 A. Yes, sir.
14 Q. So this is a spillway design flood hydrograph
15 for the Addicks reservoir; correct?
16 A. Correct.
17 Q. And up at the top, we see that total rainfall
18 of 43.5 inches; right?
19 A. Correct.
20 Q. And the loss of 3.3 inches, what does that
21 indicate, Mr. Thomas?
22 A. Losses that are either absorbed into the
23 ground or essentially evaporated, et cetera.
24 Q. Okay. So if you subtract 43.5 -- if you
25 subtract 3.3 from 43.5, that would be the amount of

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1 runoff that's going to go down into the dams;

2 correct?
3 A. Correct.
4 Q. And then this number here, this 462,145
5 acre-feet, that would be the maximum storage behind
6 the reservoirs if that event occurred?
7 A. No, sir.
8 Q. No?
9 What does that indicate?
10 A. That is the maximum amount of water that has
11 been generated during the storm, and so it's what has
12 either been stored or passed.
13 Q. Does it indicate anywhere on here that the
14 maximum amount of impounded runoff would be stored if
15 this event occurred?
16 A. It does not.
17 Q. Okay. And we know from yesterday that
18 government-owned land storage is only about 127,591
19 acre-feet; right?
20 A. I have to look at the number to be sure.
21 Q. I'll tell you what, let's not worry about it.
22 Is this the most current spillway design
23 flood hydrograph for Addicks and Barker?
24 A. So this is the only one that's in the Water
25 Control Manual. It's the only one that's essentially

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1 in operation.
2 However, in 2013, we did recalculate a
3 spillway design flood that is very similar to this
4 one.
5 Q. Right.
6 But as you said, this is the one that's
7 actually in the Water Control Manual; correct?
8 A. It is.
9 Q. All right. And if you turn the page, you'll
10 see a hydrograph for Barker?
11 A. Correct.
12 Q. And same question: This is the one you'd
13 find in the Water Control Manual; right?
14 A. Correct.
15 Q. Okay.
16 Okay. Now, turn back, if you would, to
17 page 62 of the document. It's USACE013629, Water
18 Control Manual, and there is this section on real
19 estate requirements in here.
20 So, Mr. Thomas, just so we're all on the
21 same page, this document is a document that's
22 implementing plan 5B; right?
23 A. It is.
24 Q. You're all going to raise the embankments;
25 right?

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1 A. We did.
2 Q. Put those auxiliary spillways in with a
3 roller-compacted concrete; right?
4 A. Right.
5 Q. And the real estate requirement section
6 indicates that there is no additional real estate
7 required for the modification work proposed in this
8 GDM; right?
9 A. Right.
10 Q. And then it says, As the federal government
11 owns the project lands at Addicks and Barker
12 reservoirs, and all construction activity will be on
13 federally owned property; right?
14 A. Correct.
15 Q. So that's saying the work that you are going
16 to do as the Corps to the embankments is going to be
17 occurring on federally owned property; right?
18 A. Correct.
19 Q. But it's still the case that government-owned
20 land is totally inadequate to contain a spillway
21 design flood; right?
22 A. Correct.
23 Q. Totally inadequate to contain a standard
24 project flood; right?
25 A. Correct.

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1 Q. But it doesn't say that in 9.1, does it?

2 A. It does not.
3 Q. Mr. Thomas, isn't it supposed to say that?
4 A. I don't know.
5 Q. Who would know that, do you think,
6 Mr. Thomas?
7 A. I'm not sure.
8 Q. Ms. Johnson-Muic, you think?
9 A. Maybe.
10 Q. Okay. And just one last question on this
11 exhibit. If you go to plate 3, USACE486008.
12 And Mr. Thomas, is it correct that this
13 plate is indicating what the spillway design flood
14 under plan 5B would look like in terms of where the
15 pool would go and where the water would go that's
16 flanging over the spillways?
17 A. Could you repeat that?
18 Q. Okay. It's correct that this plate 3 is
19 indicating where the impounded runoff would go if
20 there was a spillway design flood under plan 5B;
21 correct?
22 A. Correct.
23 Q. And you can see up here in this blue area,
24 the upper reaches of the pool are well beyond
25 government-owned land; right?

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1 A. They are.
2 Q. Okay. Mr. Thomas, let's keep moving.
3 I'd like to hand you what's been marked
4 for identification as Plaintiffs' Exhibit 50.
5 Let me make sure I'm not going to give
6 you a copy that's got all my notes all over it.
7 Here you go, Mr. Thomas.
8 So Plaintiffs' Exhibit 50 is a December
9 1985 document entitled Supplement Number 1 to General
10 Design Memorandum; correct?
11 A. Correct.
12 Q. And is this a document that the Corps of
13 Engineers created?
14 A. Yes, sir.
15 Q. It was produced in this litigation?
16 A. Yes, sir.
17 Q. You're familiar with it?
18 A. Yes, sir.
19 Q. No reason to doubt its authenticity or its
20 having been stored these many years in the Galveston
21 District?
22 A. I'm just making sure.
23 No, sir.
24 MR. EASTERBY: Okay. We move to admit
25 Plaintiffs' Exhibit 50, your Honor.

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4 evidence.)
5 Q. BY MR. EASTERBY: So, Mr. Thomas, I wanted to
6 ask you this: What was the purpose of coming out
7 with a supplement in December of '85 to the 1984
8 General Design Memorandum?
9 A. This supplement describes the detailed design
10 for the approved conceptual plan for modification to
11 Addicks and Barker dams as presented in the General
12 Design Memorandum dated June 1984.
13 Q. And Mr. Thomas, would you be kind enough to
14 tell what USACE page you're looking at with the
15 Bates-stamp?
16 A. 534669.
17 Q. Okay. So it's an updated discussion of the
18 actual approved conceptual plan; correct?
19 A. Correct.
20 Q. And so when did the work actually commence to
21 raise the embankments and put in the auxiliary
22 spillways?
23 A. I forget the actual year. Late '80s.
24 Q. Do you remember when it was completed?
25 A. I want to say early '90s, maybe '92,

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1 something like that. I forget the actual year.

2 Q. And since that time, have there been any
3 other modifications to the embankments?
4 A. For repair work and related to the outlet
5 structures.
6 Q. Understood.
7 But there's been no other major
8 modifications of raising them or extending the
9 auxiliary spillways? Nothing like that; correct?
10 A. Correct.
11 Q. Okay. Let me hand you what's been marked for
12 identification as Plaintiffs' Exhibit 27.
13 And 27, Mr. Thomas, is a March 1st,
14 1991, document entitled "Inflow Design Floods for
15 Dams and Reservoirs"; correct?
16 A. Correct.
17 Q. It's ER110-8-2; correct?
18 A. Correct.
19 Q. And you're familiar with these engineering
20 regulations, are you not?
21 A. Correct.
22 Q. This is the one we discussed in your
23 deposition. Do you recall that?
24 A. Yes, sir.
25 Q. And these regulations are promulgated by the

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1 Corps of Engineers to provide guidance regarding

2 construction and planning and modification of dams
3 and reservoirs; right?
4 A. Among other things.
5 Q. And it's correct that in the Galveston
6 District, an inflow design flood was created for
7 Addicks and Barker; right?
8 A. Correct.
9 Q. Pursuant to this document?
10 A. Prior to this document.
11 MR. EASTERBY: Okay.
12 Your Honor, we move to admit Plaintiffs'
13 Exhibit 27.
16 (Plaintiffs' Exhibit 27 received in
17 evidence.)
18 Q. BY MR. EASTERBY: Okay. Mr. Thomas, if we
19 turn to the first page -- second page, excuse me --
20 USACE019623, under Applicability, it says it applies
21 to all HQ -- HQUSACE/OCE elements. What does that
22 mean, Mr. Thomas?
23 A. The acronym means the Headquarters, U.S. Army
24 Corps of Engineers/Office of Chief Engineer.
25 Q. So this would apply to Galveston; right?

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1 A. It does.
2 Q. If you go down to 5, general policy, it
3 states, "It is the Corps of Engineers' policy that
4 dams designed, constructed, or operated by the Corps
5 will not create a threat of loss of life or
6 inordinate property damage"; correct?
7 A. Correct.
8 Q. "Departures from accepted policy or practice
9 will not be made in the design of a dam simply to
10 reduce cost"; correct?
11 A. Correct.
12 Q. And does the Galveston District follow that
13 policy?
14 A. We do.
15 Q. Let's look under number 6, Discussion.
16 If you pick up in the middle, it says,
17 "deliberately accepting a recognizable risk to life
18 in the design of a dam simply to reduce the cost of
19 the structure has been generally discredited from an
20 ethical and public welfare standpoint"; correct?
21 A. Correct.
22 Q. And that's something that the Galveston
23 District is supposed to adhere to; right?
24 A. Right.
25 Q. It says, "Legal and financial capability to

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1 compensate for economic losses associated with dam

2 failure is inadequate justification for accepting
3 such a risk"; right?
4 A. Correct.
5 Q. And then at the bottom it says, "It is
6 essential that design guidance be geared to safety,
7 considering both the upstream impacts of an imposed
8 ponding and the downstream consequences of dam
9 failure"; right?
10 A. Correct.
11 Q. And "the upstream impacts of the imposed
12 ponding," that is referring to when the water is
13 being held back, and it's coming back and starting to
14 submerge people's homes. That's what that's
15 referring to; correct?
16 A. Correct.
17 Q. And that will cause damage to that property,
18 won't it?
19 A. It can.
20 Q. It certainly can.
21 It can also pose a threat to human life;
22 right?
23 A. In some cases.
24 Q. Well, you know that during Harvey, one
25 gentleman lost his life downstream after the releases

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1 were made; correct?

2 A. I don't know the circumstances surrounding
3 that.
4 Q. But you know it happened; right?
5 A. I'm aware that people died in the flood.
6 Q. And are you aware that upstream a young man
7 lost his life during Harvey in the Bear Village
8 Village area?
9 A. I'm not aware of the circumstances either.
10 Q. Are you aware that that happened?
11 A. Only through the news.
12 Q. Right.
13 His name was Andrew Pasek. I think he
14 was 22 years old. Did you know that?
15 A. I did not.
16 Q. I believe he was electrocuted and then he
17 drowned. Did you know that?
18 A. I think I heard that on the news.
19 Q. Right.
20 So fair to say that when the government
21 holds back water and submerges people's homes, that
22 will create a risk to people's lives and to their
23 property; fair?
24 MR. SHAPIRO: Objection; asked and answered.
25 THE COURT: Overruled.

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1 The three-strike rule comes into play.

2 THE WITNESS: Can you say it again?
3 Q. BY MR. EASTERBY: It's fair to say that the
4 government knows that when it's impounding that
5 water, it's being held back, it will pose a risk to
6 people's lives and to their property; right?
7 A. There is a risk associated with flooding.
8 Q. Okay. Let's go to page 3 of the document.
9 It's USACE019625, bottom of the page, subparagraph B.
10 Matt, we're on the wrong page. It's
11 page USACE019625 down here.
12 Okay. At the bottom, last sentence, it
13 says, "This requires separate inflow hydrographs for
14 tributaries, main stem local areas, and the pool
15 area"; correct?
16 A. Correct.
17 Q. And it is correct that the Corps of Engineers
18 did not ever do separate inflow hydrographs for the
19 tributaries that come into Addicks and Barker; true?
20 MR. SHAPIRO: Your Honor, if I could ask, the
21 question is vague. I'm not sure if he means after
22 this was promulgated in '91 or at the time of the
23 actual design of the structure in 1940.
24 MR. EASTERBY: Ever.
25 THE COURT: That objection is overruled.

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1 The question is ever.

3 Q. BY MR. EASTERBY: It is correct that the
4 Corps of Engineers has never done separate inflow
5 hydrographs for the tributaries that come into
6 Addicks and Barker reservoir area; right?
7 A. I don't think -- I think that's untrue.
8 Q. Oh, y'all have done that?
9 A. I think so.
10 Q. When?
11 A. I think they had to do it in the '80s.
12 Q. So you're saying there is inflow hydrographs
13 for South Mayde Creek and Bear Creek and Upper
14 Buffalo Bayou and Mason Creek?
15 A. I think they did that and certainly our
16 current models are in there.
17 Q. You think it was done in the '80s?
18 A. I think so.
19 Q. And when you say your current models, what
20 are you referring to?
21 A. The HMS model that we're using now.
22 Q. And is that based on the FEMA model
23 information for those tributaries?
24 A. I don't think so. I'm not sure.
25 Q. Okay. So what is an inflow hydrograph. We

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1 just saw it for the dams. What is it for a

2 tributary?
3 A. So it's the same. It a discharge rate over
4 time.
5 Q. And you've seen these inflow hydrographs for
6 these incoming tributaries that we just talked about,
7 Upper Buffalo Bayou, Mason creek, Willow Fork
8 Diversion Channel, South Mayde Creek, Bear Creek --
9 (Clarification requested by the
10 reporter.)
11 Q. BY MR. EASTERLY: I'll start from the top.
12 Have you ever seen inflow hydrographs
13 for Upper Buffalo Bayou?
14 A. I'm not sure.
15 Q. Have you ever seen them for Willow Fork
16 Diversion Channel?
17 A. Okay. I don't remember.
18 Q. Ever seen them for Mason Creek?
19 A. I don't recall.
20 Q. Ever seen it for South Mayde Creek?
21 A. I don't remember.
22 Q. Ever seen it for Bear Creek?
24 Q. Ever seen it for Langham Creek?

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1 Q. Ever seen it for Horsepen Creek?

3 Q. Ever see it for Turkey Creek?
5 Q. And so you used to be the Chief of Water
6 Control; right?
7 A. Right.
8 Q. Isn't it reasonable to expect that you would
9 have seen these things if they exist?
10 A. I think that I've seen them. I just can't
11 remember.
12 Q. You think you've seen them, but you can't
13 remember. Okay.
14 Let's go to page 5 of the document,
15 which is USACE019627.
16 If we look at subparagraph C under 10,
17 it states, "An important objective of a project
18 design will be to limit storage accumulation during
19 floods to avoid excessive damage or a threat to life
20 within reservoir areas upstream from the dam";
21 correct?
22 A. Correct.
23 Q. And you would agree with me that presently
24 this portion of this document is not being met by the
25 operation and use of the federal project?

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1 A. Say it again.
2 Q. You'd agree with me that this provision is
3 not being met with the current use and operation of
4 Addicks and Barker?
5 A. I'm not sure about that.
6 Q. Well, Mr. Thomas, on August 30th, there was a
7 reservoir pool that did create a risk to human life;
8 right?
9 A. There was a pool outside government-owned
10 land.
11 Q. And a gentleman died in that pool. You know
12 that?
13 MR. SHAPIRO: Well, I'll object. I mean,
14 that assumes facts not in evidence.
15 MR. EASTERBY: He said he saw it on the news.
16 THE COURT: Mr. Easterby, just a moment.
17 MR. EASTERBY: Sorry, Judge.
18 THE COURT: Given the predicate provided by
19 the prior questioning, the question is allowed.
21 Q. BY MR. EASTERBY: Sure.
22 You know that on August 30th, the
23 reservoir pool did create a risk to human life; yes?
24 A. The reservoir pool did create risk.
25 Q. To human life; yes?

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1 A. Potentially.
2 Q. Mr. Thomas, the man drowned in the pool.
3 MR. SHAPIRO: Well, see there, I have to
4 object, your Honor.
5 This witness doesn't seem to know very
6 much about this incident, but what counsel described
7 was an electrocution. There's no evidence on this
8 point.
9 THE COURT: That's true.
10 On the other hand, the general question
11 was allowed.
12 The specific question that was just
13 posed is not, so the objection is sustained.
14 MR. EASTERBY: All right. I think I made my
15 point on that, Judge; I'll move on.
16 Q. And then it goes on to say, "A reservoir pool
17 will not create risk of excessive damage"; right?
18 A. Correct.
19 Q. And you know that on August 30th, that
20 reservoir pool submerged something around 10,000
21 privately-owned residential structures; correct?
22 A. I can't confirm the number.
23 Q. It's in that ballpark, though. You know
24 that; right?
25 A. Right.

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1 Q. That's excessive damage, wouldn't you say?

2 A. It is damage.
3 Q. You won't give me excessive? It's just
4 damage?
5 A. Oh, I don't know the definition necessarily.
6 The way -- the way that we define excessive here and
7 risk in general is through this iterative design
8 process that we're doing right now.
9 Q. And the resiliency study?
10 A. That's correct.
11 Q. But the Corps of Engineers doesn't have some
12 kind of regulation that says, you know, it's okay to
13 submerge 10,000 people, but gee whiz, if you get over
14 10,000 then that's excessive. There is no document
15 that says that; right?
16 A. Not that I know of.
17 Q. Okay. Go with me to page B-1. It's
18 USACE019630, please.
19 It has down there on the left-hand
20 column a definition for inflow design flood; right?
21 A. Correct.
22 Q. And then below that, it's got maximum pool.
23 Do you see that?
24 A. Yes.
25 Q. And that's the highest pool elevation

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1 resulting from the inflow design flood; correct?

2 A. Correct.
3 Q. Do you know what that highest pool elevation
4 is?
5 A. Currently?
6 Q. Sure.
7 A. I think we read it yesterday.
8 Q. It's in the impact tables and the Emergency
9 Action Plan?
10 A. It is.
11 Q. Would that correspond to the spillway design
12 flood or something else?
13 A. The spillway design flood.
14 Q. Okay. So the maximum pool corresponds to the
15 spillway designed flood we saw in the water impact
16 tables of the Emergency Action Plan; right?
17 A. Following this definition, that's right.
18 Q. And the Corps follows its definition, I
19 trust.
20 A. Is this still the current ER?
21 Q. I don't know, Mr. Thomas.
22 Do you know?
24 Q. Well, I suppose and hope that the Corps does
25 follow these regulations as they come out, don't

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1 they?
2 A. We do.
3 Q. Or supposed to anyway; right?
4 A. We do follow them.
5 Q. Okay. Let me hand you what's been marked as
6 Joint Exhibit 44.
7 MR. EASTERBY: Your Honor, just so we have a
8 color version on the screen, I'm going to have
9 Plaintiffs' Exhibit 55 shown, although I will shortly
10 move to admit Joint Exhibit 44 if that's okay with
11 the Court.
12 THE COURT: Yes.
13 Q. BY MR. EASTERBY: Okay. So Joint Exhibit 44
14 is a document entitled Buffalo Bayou Tributaries,
15 Texas, Addicks and Barker Reservoir, Special Report
16 on Flooding, May 1992; correct?
17 A. Correct.
18 Q. It states on the bottom right, U.S. Army
19 Corps of Engineers, Galveston District; right?
20 A. Correct.
21 Q. Bates-stamped USACE314492; correct?
22 A. Correct.
23 Q. You're familiar with this document; yes?
24 A. Correct.
25 Q. One of the ones you reviewed in preparation

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1 for your deposition?

2 A. Correct.
3 Q. And no reason to doubt its authenticity?
4 A. Correct.
5 MR. EASTERBY: We would move to admit Joint
6 Exhibit 44, your Honor.
9 (Joint Exhibit 44 was received in
10 evidence.)
11 Q. BY MR. EASTERBY: And so Mr. Thomas, do you
12 know what the purpose was for preparing this Special
13 Report on Flooding in May of '92?
14 A. The report was prepared to provide general
15 background information on the existing operational
16 conditions at Addicks and Barker reservoirs and give
17 an overview of the order of magnitude of the
18 anticipated flooding damages which could occur off of
19 government property, assuming different flood events.
20 Q. Is it correct that in or around March of '92,
21 there was a record pool reached for Addicks and
22 Barker?
23 A. Correct.
24 Q. And is it correct that that was the
25 culmination of several storms, not just one big

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1 storm?
2 A. Correct.
3 Q. And I believe in this report, it talks about
4 that as a ratcheting effect. Are you familiar with
5 that?
6 A. Yes, sir.
7 Q. Meaning, given the Corps' use and operation
8 of its project, we don't need to have a Harvey to
9 create a pool that goes beyond government-owned land.
10 It could just be a series of storms; true?
11 A. Correct.
12 Q. All right. If you go to page 9 of the
13 document, it has some information about single
14 occurrence damages for the possible maximum flood up
15 here at the top. Do you see that?
16 A. Yes, sir.
17 Q. And the possible maximum flood, what does
18 that mean to you, Mr. Thomas?
19 A. I believe they're referring to the probable
20 maximum flood shown on the previous page.
21 Q. Okay. And is that the spillway design flood?
22 A. It is.
23 Q. Okay. Matt, please go back to page 5. I
24 skipped a page.
25 Page 5 is USACE314499, Reservoir

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1 Operations.
2 Oh, I'm sorry. I'm messing you up.
3 It's page 5 of the document. I forgot what we'd
4 done.
5 There you go, you've got it. Reservoir
6 Operations, right here.
7 And it states, "The existing plan for
8 reservoir regulation is to operate the reservoirs in
9 a manner that would prevent damaging stages on
10 downstream Buffalo Bayou"; correct?
11 A. Correct.
12 Q. That's the project's public purpose as we
13 established yesterday; yes?
14 A. Correct.
15 Q. And here again it states, "That is
16 accomplished by utilizing to the maximum extent
17 possible the available storage capacity within the
18 reservoirs"; correct?
19 A. Correct.
20 Q. And that includes the property that's well
21 beyond government-owned land; yes?
22 A. It does include some property other than
23 government-owned land.
24 Q. You say it does or doesn't?
25 A. It does.

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1 Q. Okay. Thank you.

2 Okay. Getting back to page 9 of the
3 document, Matt.
4 Okay. Up here at the top.
5 So, I believe it's saying that for the
6 spillway design flood, that would affect 4,000
7 structures valued at approximately $725 million;
8 correct?
9 A. Correct.
10 Q. And cause damage of $245 million; correct?
11 A. Correct.
12 Q. And this is back in 1992.
13 A. It is.
14 Q. The standard project flood would impact 2800
15 structures worth $400 million; correct?
16 A. Correct.
17 Q. And cause $100 million in damages; correct?
18 A. Correct.
19 Q. And this says, "The hundred-year event would
20 be contained within the reservoirs and not cause any
21 damages outside government-owned lands"; right?
22 A. Correct.
23 Q. But we established yesterday that for Barker,
24 that's not true, isn't it?
25 A. Based on the document we looked at yesterday.

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1 Q. Well, Mr. Thomas, as you sit here today,

2 isn't it true that the Barker reservoir
3 government-owned land is not sufficient to contain
4 the pool that would result from a hundred-year event?
5 MR. SHAPIRO: Your Honor, I have to object as
6 to vague in terms of timing, because we're looking at
7 different dates, and as the Court has seen already,
8 that the hundred-year storm has changed over time,
9 so...
10 THE COURT: That's true.
11 Mr. Easterby, if you will clarify the
12 question, it would help.
13 Q. BY MR. EASTERBY: Right.
14 So my question was, as we sit here
15 today -- today -- isn't it true that the Barker
16 reservoir government-owned land is not sufficient to
17 contain the pool that would result from a
18 hundred-year flood event?
19 A. It depends on which document and analysis
20 you're looking at.
21 Q. I'm asking you, today. Barker reservoir
22 government-owned land, can it contain the pool
23 resulting from a hundred-year event? Yes or no.
24 A. Again, it depends on the analysis that you're
25 looking at.

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1 Q. I don't have any analysis to look at. I'm

2 asking you. Do you have an answer?
3 A. Well, there should be an analysis.
4 THE COURT: Mr. Shapiro.
5 MR. SHAPIRO: He's answered that question.
6 Counsel may not like that answer, but he
7 has answered.
8 THE COURT: Well, he hasn't answered the
9 question. That's part of the problem.
10 You may proceed, Mr. Easterby.
11 Q. BY MR. EASTERBY: Mr. Thomas, I'm asking you
12 today. Do you know, up or down, if a hundred-year
13 storm happened in the Barker watershed, is the
14 government-owned land sufficient to contain the pool
15 that would result from that runoff being held back?
16 A. I think the 2012 Water Control Manual shows
17 it is, and I think the FEMA document that you showed
18 us yesterday says that it is. However, there are
19 many documents that say that it is not, and so we're
20 redoing that analysis now, as part of the resiliency
21 study, to get a better handle on that information.
22 Q. Maybe my question is not clear. I think it's
23 very clear. I'm asking you, Mr. Thomas, in your
24 capacity as an employee of the Galveston District, do
25 you know the answer to that question up or down? Not

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1 what some document from 2012 says. Today, do you

2 know?
3 A. So I haven't done that analysis personally.
4 Q. Has somebody else done it, to your knowledge?
5 A. It is being done right now.
6 Q. Have you seen any results from that analysis?
7 A. I've seen some preliminary results.
8 Q. Tell me about them.
9 A. The preliminary results indicate that it's
10 not sufficient to manage a flood.
11 Q. Did the preliminary analysis show that it's
12 sufficient to contain a pool from a 50-year event?
13 A. I don't remember exactly what it was, and it
14 still has to go through review, so it doesn't -- it's
15 preliminary, and it doesn't make it right.
16 Q. Who prepared that analysis?
17 A. It's in our H & H background. I forget who
18 did it.
19 Q. Mr. Maglio, perhaps?
20 A. Not him personally. Someone in his office.
21 Q. Mr. Scheffler?
22 A. Not Mr. Scheffler.
23 Q. Well, you looked at it, did you talk to the
24 person that prepared it?
25 A. I talked to Mario Beddingfield, but I don't

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1 think he prepared it personally.

2 Q. Okay. You but you talked to Mario
3 Beddingfield about it; understood.
4 Okay. So then the next section down
5 here talks about real estate property values;
6 correct?
7 A. Correct.
8 Q. And it says, "A desk appraisal of properties
9 was developed for an area upstream of the
10 reservoirs"; right?
11 A. Correct.
12 Q. "And those reservoirs that have elevations
13 that were between government-owned land, and the
14 elevation of natural ground at the edge of the
16 A. Correct.
17 Q. And what is a desk appraisal, if you know?
18 A. I'm assuming that means that someone sat at
19 their desk and did some quick calculations and made
20 an analysis.
21 Q. Right.
22 As opposed to going out and doing an
23 appraisal at every house; right?
24 A. I assume that's true.
25 Q. But as we saw up here, just for the standard

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1 project flood, that would, according to this, cause

2 $100 million in damages back in '92; right?
3 A. Correct.
4 Q. And you'd agree with me that $100 million,
5 that's substantial damage; right?
6 A. That does seem substantial.
7 Q. Okay. Mr. Thomas, let's move on.
8 Oh, by the way, was this PX55 something
9 that was issued to the public?
10 A. I believe so.
11 Q. Oh, you do?
12 So how would that have happened? Does
13 the Corps of Engineers mail it out? Or how does it
14 issue things to the public back in the early '90s?
15 A. So in this case, it was an attachment to the
16 '95 recon report, and I think that had a public
17 notice.
18 THE COURT: The Court would just note for the
19 record that the reference to PX55 is actually a
20 reference to JX44 as admitted.
22 Q. Okay. In this time period, '92, that's
23 before the internet, Mr. Thomas; right?
24 A. Yes, sir.
25 Q. It is.

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1 Okay. Let me hand you what's been

2 marked for identification as Joint Exhibit 52. And
3 Joint Exhibit 52 is the 1995 reconnaissance report;
4 correct?
5 A. Correct.
6 Q. You're definitely familiar with this one,
7 aren't you, Mr. Thomas?
8 A. Yes, sir.
9 Q. You reviewed it in preparation for your
10 deposition; correct?
11 A. Correct.
12 Q. I'm guessing you reviewed it in preparation
13 for your testimony here today; right?
14 A. It's been a while, sir.
15 Q. Okay. It's dated October 1995?
16 A. It is.
17 Q. And it was prepared by the Galveston District
18 of the Corps of Engineers; correct?
19 A. It was.
20 MR. EASTERBY: Your Honor, we move to admit
21 Joint Exhibit 52 into evidence.
25 evidence.)

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1 Q. BY MR. EASTERBY: So, Mr. Thomas, what is a

2 Section 216 study? What does that mean?
3 A. It refers to the reevaluation of an existing
4 project.
5 Q. And the 216 part, does that come out of a
6 statute, if you know?
7 A. It is Section 216 of the Flood Control Act.
8 Q. Right.
9 So as I understand it, that provides
10 that over time, pursuant to that statute, the Corps
11 can do studies to consider potentially changing
12 project operations or changing the project itself;
13 correct?
14 A. Correct.
15 Q. And the Buffalo Bayou and Tributaries
16 resiliency study, which is currently underway, is
17 that also a 216 study?
18 A. In part.
19 Q. Okay. Do you know why it was in 1995 that
20 the Corps of Engineers did this reconnaissance
21 report?
22 A. In general, they did it to reevaluate the
23 projects to identify alternatives that would optimize
24 the benefits for the federal project.
25 Q. And the federal project at issue here is the

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1 Addicks and Barker dams and reservoirs; right?

2 A. Right.
3 Q. So, Mr. Thomas, if you look at Roman Numeral
4 little I -- it's USACE015128 -- there's a table of
5 contents.
6 Oh, maybe you've got a different version
7 of this. Okay. Table of contents is towards the
8 beginning.
9 There it is.
10 Okay. Mr. Thomas, do you see this table
11 of contents?
12 A. Yes, sir.
13 Q. And you see on page 6, "Current reservoir
14 operations and procedures"; right?
15 A. Correct.
16 Q. And it's got "problem identification"; right?
17 A. Correct.
18 Q. Let's move ahead to page 6.
20 Q. And the problem that's being identified is
21 talking about the above-described operations and
22 procedures, prolonged storage of flood waters in the
23 detention facilities, and require a longer period of
24 time to complete flood releases; correct?
25 It's the bottom of page 6, Mr. Thomas.

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1 A. I was on the wrong page 6.

2 Q. Oh, that's understandable.
3 USACE015135.
4 A. Got it.
5 Correct.
6 Q. And if you turn the page to page 7, at the
7 top, second line, it says, "There is also a potential
8 threat of property damage upstream of the reservoir
9 lands"; correct?
10 A. Correct.
11 Q. So that's one of the problems that's being
12 addressed in this reconnaissance report; true?
13 A. Correct.
14 Q. And then on page 7, it discusses the
15 alternatives that had been considered to address
16 these problems; true?
17 A. Correct.
18 Q. The first one is, "Increase reservoir flood
19 storage by excavation on government-owned land";
20 right?
21 A. Correct.
22 Q. That was not done; right?
23 A. It was not.
24 Q. The second one on the next page is to
25 "Increase reservoir flood storage by purchase of

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1 flowage easements in the fringe areas adjacent to

2 government-owned land over existing developed
3 properties; correct?
4 A. Correct.
5 Q. That was not done; right?
6 A. It was not.
7 Q. The next one, 3, "Increase reservoir storage
8 capacity by means of a buyout and relocation of
9 developed properties." That was not done; right?
10 A. Correct.
11 Q. Four, "Reduce reservoir inflows by increasing
12 upstream storage on undeveloped lands located above
13 existing urban developments." That was not done;
14 right?
15 A. Correct.
16 Q. Five, "Increase reservoir flood releases by
17 buyout of downstream damageable properties." That
18 was not done; right?
19 A. Correct.
20 Q. Six, "Increase reservoir flood releases by
21 enlargement of the downstream Buffalo Bayou channel."
22 That was not done; right?
23 A. Correct.
24 Q. I mean, in point of fact, none of these were
25 done; right, Mr. Thomas?

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1 A. That's not exactly true.

2 Q. Well, you got me there.
3 The last one, item 10, "Accept existing
4 conditions and risk through no action." That was
5 done, wasn't it?
6 A. It was.
7 Q. And the one right above that, 9, "Adopt a
8 flood warning and evacuation plan." Even that was
9 not done, was it?
10 A. I believe that was deferred to locals.
11 Q. And so it is correct that the Corps of
12 Engineers does not have a flood warning or evacuation
13 plan for the folks that live upstream behind the
14 dams; true?
15 A. Correct.
16 Q. Or for the folks who live downstream in the
17 induced surcharge corridor; correct?
18 A. Correct.
19 Q. And the Corps leaves that to local
20 authorities, the counties, cities; right?
21 A. Correct.
22 Q. Mr. Thomas, why is it that the Corps of
23 Engineers decided to accept existing conditions and
24 risk through no action?
25 A. So I'll read to you from page 15148. It

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1 says, "It is recommended that this Section 216 study

2 of Addicks and Barker reservoirs be terminated
3 because of insufficient economic benefits to justify
4 project modification."
5 Q. Right.
6 So -- and we talked about this at your
7 deposition at length. What the government did was a
8 cost/benefit analysis; right?
9 A. Correct.
10 Q. It looked at the cost to implement all of the
11 items I just rattled off with you; correct?
12 A. Correct.
13 Q. And then it looked at the benefits it would
14 achieve therefrom; correct?
15 A. Correct.
16 Q. And it decided that it's better to just do
17 nothing, because it's going to cost us more than the
18 benefits we'd receive in exchange; right?
19 A. Correct.
20 Q. It wasn't based on safety of human life;
21 right?
22 A. It was based on economics.
23 Q. Yeah.
24 And that, I think, was a function of the
25 fact that back then, there had not yet been a pool

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1 that had gone and submerged a bunch of people's homes

2 and businesses; correct?
3 A. I'm not sure it says that.
4 Q. Well, let me come at it this way: The
5 current study that the Corps is working on, is it
6 also going to be doing a cost/benefit analysis?
7 A. It is.
8 Q. And that would require the Corps to consider,
9 I assume, the amount of damage that was caused to the
10 upstream areas by the reservoir pools that resulted
11 from the Harvey runoff being held back?
12 A. Sort of.
13 Q. Explain, please.
14 A. So they'll look at probability of flooding
15 and relate that to the damages, and certainly the
16 Harvey information will be included in the database
17 to help inform that analysis.
18 Q. The probability of flooding?
19 A. Right. So it's a -- the analysis actually
20 takes into account how likely it is for each property
21 to flood and what level and how much the damage would
22 be at that level from that type of simulation, to
23 essentially develop the excess benefits, as we call
24 it, to help us define the national economic
25 development plan.

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1 Q. So, Mr. Thomas, it already happened; right?

2 I mean, that runoff was impounded, the pool rose. It
3 submerged thousands of structures; correct?
4 A. Correct.
5 Q. It's not a probable issue. It happened on
6 August 30th, didn't it?
7 A. It did.
8 Q. So the Corps doesn't use the damage from that
9 event, but instead uses a probability analysis?
10 A. Like I said, that information will be
11 included in the analysis, but the analysis itself
12 won't just be here's what happened, here's the cost
13 in the end.
14 Q. Have you seen any kind of preliminary on the
15 probability analysis?
16 A. Related to the economics?
17 Q. Relating to the upstream real estate problem,
18 the inadequate government-owned land.
19 A. Well, like we talked about before, I've seen
20 very preliminary information about the likelihood of
21 pool levels, but I have not seen it related to the
22 economics yet.
23 Q. All right. And you know, Mr. Thomas, in this
24 area, we've had a lot of big storms in the last four
25 years; correct?

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1 A. We have.
2 Q. We had Memorial Day 2015; correct?
3 A. Right.
4 Q. We had tax day 2016; correct?
5 A. Correct.
6 Q. We had Harvey; correct?
7 A. Correct.
8 Q. Each of those I've heard characterized as
9 greater than a 500-year storm; right?
10 A. Right.
11 Q. So that's three 500-year events in three
12 years, isn't it?
13 A. Essentially.
14 Q. Does that suggest to you that the risk
15 associated with having that reservoir pool rise from
16 the impounded runoff has been going up, up, up?
17 A. So that will drive the statistical analysis,
18 so it will change the likelihood of flooding, which
19 will benefit this type of analysis.
20 Q. And I suppose that analysis will also include
21 the updated NOAA precipitation tables?
22 A. It will.
23 Q. Good.
24 Look with me at page 15 of this Joint
25 exhibit, if you would. It says "Other concerns

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1 addressed."
3 Q. And this is speaking to drainage policy
4 restrictions, Mr. Thomas? Yes?
5 A. Yes, sir.
6 Q. And in your deposition, you were the
7 designated representative to speak on this topic. Do
8 you recall that?
9 A. Yes, sir.
10 Q. So it says here that beginning in the late
11 '70s, private land developers upstream from the
12 reservoirs sought permission to extend channel
13 improvements onto government-owned land; right?
14 A. Correct.
15 Q. This would more readily facilitate land
16 development by reducing the regulatory floodplain;
17 right?
18 A. Correct.
19 Q. And prior to '81, it was the Corps' policy to
20 decline all requests to have those channel
21 improvements extend onto government-owned land;
22 correct?
23 A. I believe so.
24 Q. And it says here that in 1981, the Galveston
25 District compromised and allowed their request under

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1 the restriction, that channelization onto

2 government-owned land be limited to in-bank flow
3 capacity of these channels to the hundred-year, 1979
4 conditions flow rate; correct?
5 A. Correct.
6 Q. Is that still the current policy?
7 A. I'm not sure if I found a written policy
8 different from this since then.
9 Q. Okay. So presently, several of these
10 upstream tributaries that come into Barker and
11 Addicks extend onto government-owned land; right?
12 A. Right.
13 Q. By a mile and a half in some instances;
14 correct?
15 A. Correct.
16 Q. Corps of Engineers agreed to that; correct?
17 A. We did.
18 Q. The Corps of Engineers changed their policy
19 to allow that; correct?
20 A. Correct.
21 Q. And it's correct that the Corps of Engineers
22 recognized that doing that would exacerbate, would
23 make worse, the risk of upstream impoundment and
24 submersion by the reservoir pool; correct?
25 A. Where does it say that?

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1 Q. Well, look at subparagraph A on page 15.

2 It's got a whole list of items here.
3 The first one says, Channelization onto
4 government-owned land would increase the inflow of
5 sediment into the reservoirs, resulting in the loss
6 of flood storage capacity; right?
7 A. Correct.
8 Q. And I believe you know that presently Harris
9 County and Fort Bend County are removing the sediment
10 that came in from Harvey; correct?
11 A. Correct.
12 Q. And they also did that work after tax day,
13 did they not?
14 A. I don't remember them doing it after tax day.
15 Q. Do you know either way?
17 Q. Okay. And it's correct that in order for
18 them to do that, they have to get permission from the
19 Corps of Engineers to come onto government-owned
20 land; right?
21 A. Correct.
22 Q. They have to submit an environmental
23 analysis, things like that?
24 A. Correct.
25 Q. Okay. Page 16, the next page, B, talks about

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1 how channelization on government-owned land would

2 produce faster flood runoff; correct?
3 A. Correct.
4 Q. The next one, C, "Watershed development will
5 increase runoff volumes resulting in more frequent
6 and larger impoundments"; correct?
7 A. Correct.
8 Q. "D, Channel improvements would lower
9 regulatory stream flood profiles, resulting in
10 development of the reservoir fringe area at lower
11 slab elevations"; right?
12 A. Correct.
13 Q. "This will increase flood damages resulting
14 from reservoir impoundments for events greater than
15 the hundred year"; correct?
16 A. Correct.
17 Q. So -- and I don't need to go through them
18 all.
19 But the bottom line is, the Corps of
20 Engineers recognized that changing its drainage
21 policy, its inflow policy, would increase the risk of
22 having these rising reservoir pools impound private
23 structures.
24 MR. SHAPIRO: If I could just state for the
25 record an objection on vagueness, because we're

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1 talking about two changes, one to allow it, and one

2 to deny, so it's not clear what changes he's talking
3 about.
5 I think the context is clarified enough
6 by the prior question and answer.
7 MR. SHAPIRO: Could I just ask a
8 clarification then, your Honor?
9 THE COURT: Yes.
10 MR. SHAPIRO: Are we talking pre-1981?
11 THE COURT: No.
12 MR. SHAPIRO: Thank you.
13 Q. BY MR. EASTERBY: Mr. Thomas, since I'm
14 positive you're going to ask me to restate my
15 question, I'll do it this way: Prior to '81, the
16 policy was decline all requests for channels to go
17 onto government-owned land; right?
18 A. Correct.
19 Q. '81, the Corps changed its mind and said yes,
20 they can come in, as long as it adheres to '79
21 existing condition flow rates; correct?
22 A. Correct.
23 Q. And it did that recognizing all these risks
24 that we see here; right?
25 A. Correct.

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1 Q. It didn't have to do any of that. It didn't

2 have to say yes to the developers. It could have
3 said no; correct?
4 A. Correct.
5 Q. I mean, there's easements and right-of-way
6 agreements for every single one of those tributaries,
7 aren't there?
8 A. There are.
9 Q. So why did the Corps of Engineers do that,
10 Mr. Thomas? Why did it change its policy in '81?
11 A. I don't know if I found that written down
12 yet.
13 Q. Well, it certainly comes as no surprise to
14 the Corps that doing that was going to result in more
15 development in those areas. That's what it says
16 here, isn't it?
17 A. It is.
18 Q. It would increase flood damages resulting
19 from reservoir impoundments. It knew that; right?
20 A. Which one is that?
21 Q. Let's see. It's subparagraph D, page 16.
22 A. It does say that.
23 Q. But you don't know why the Corps of Engineers
24 changed its mind to, quote, compromise with the
25 developers?

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1 A. If I saw that, I don't remember what it was.

2 Q. If you look at page 17, it says down here on
3 the bottom paragraph, Barker government-owned land
4 provides about 70-year flood protection; correct?
5 A. Correct.
6 Q. That's in '95; right?
7 A. Correct.
8 Q. No additional land had been bought in the
9 Barker government-owned land; correct?
10 A. Say it again?
11 Q. No additional government-owned land had been
12 bought in the Barker reservoir; correct?
13 A. Correct.
14 Q. And you know that the updated NOAA tables
15 have increased over time.
16 A. They have.
17 Q. So if it provided 70-year protection back in
18 '95, it's reasonable to expect today that it would
19 provide less than 70-year protection?
20 A. Maybe.
21 Q. And when it says protection, that really
22 means being protected from the reservoir pool that
23 results from the impoundment of runoff exceeding
24 government-owned land and coming into people's homes;
25 right?

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1 A. All this sentence means is the likelihood of

2 the pool level for the government-owned land
3 elevation is 1 in 70, based on the analysis they did
4 at the time.
5 Q. Okay. Go with me, if you would, to page D-2.
6 It's USACE015186.
7 This provides a total estimated real
8 estate value of $475 million; correct?
9 A. That is what it says.
10 Q. And do you have an understanding as to what
11 area this $475 million relates to?
12 A. So, I'm just going to read it. This says,
13 "The value estimate of the Addicks and Barker
14 reservoirs includes only real estate, i.e., land and
15 improvements. All categories of real estate are
16 included except exempt properties or those properties
17 owned by government entities. The area from which
18 the properties were extrapolated is from the existing
19 periphery of the Addicks and Barker reservoirs to the
20 natural ground at the ends of the dams, which
21 translates to 112 feet NGVD at Addicks reservoir and
22 106 feet NGVD at the Barker reservoir.
23 Q. Thank you, Mr. Thomas.
24 And when it says from the existing
25 periphery from the Addicks and Barker reservoirs to

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1 those elevations you just referenced, Addicks and

2 Barker reservoirs here means government-owned land;
3 right?
4 A. It does.
5 Q. Even though in reality those reservoirs
6 extend well beyond government-owned land; correct?
7 A. I think in most of our documents, you'll see
8 that they call the reservoirs government-owned land.
9 Q. Right.
10 Including that public notice that we
11 looked at yesterday; correct?
12 A. Maybe. I don't remember the specifics of
13 that one.
14 Q. Okay. Turn with me, if you would, to
15 USACE015224. It's floodplain inventory of physical
16 structures.
17 You're already there. Great.
18 Are you there, Mr. Thomas?
19 Okay, good.
20 It says that it was necessary to
21 inventory all capital investment in the existing
22 standard project floodplain; correct?
23 A. Correct.
24 Q. And capital investment refers to people's
25 homes and businesses, structures?

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1 A. I think so.
2 Q. Right.
3 So it talks about how it was necessary
4 to do these field surveys; right?
5 A. Correct.
6 Q. And if you go down the page, Matt, to the
7 last paragraph.
8 It says, "Information recorded during
9 the field survey included the location of the
10 structures, i.e., street address"; correct,
11 Mr. Thomas?
12 A. Correct.
13 Q. "Ground elevations of structures"; right?
14 A. Correct.
15 Q. "The flooding threshold of individual
16 structures"; right?
17 A. Correct.
18 Q. "And structure category types"; correct?
19 A. Correct.
20 Q. So the Corps of Engineers had a vendor go out
21 and get all of that information that I just
22 described; correct?
23 A. I believe so.
24 Q. And the flooding threshold of individual
25 structures, that would be the first floor slab

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1 elevation; correct?
2 A. Usually.
3 Q. When would it not?
4 A. Sometimes it's the second floor if the home
5 doesn't have any kind of living area on the first.
6 Q. Like a Galveston beach house that's up there
7 on piers?
8 A. Right.
9 Q. You ever see any of those behind the
10 reservoirs, Mr. Thomas?
11 A. I have not.
12 Q. Me neither.
13 Okay. Suffice it to say that at the end
14 of the day, the no-action alternative was chosen by
15 the federal government with regard to this
16 reconnaissance report; correct?
17 A. It was.
18 Q. And the Corps of Engineers and the government
19 are doing another 216 study as we speak; right?
20 A. We are.
21 Q. Is no action on the table again, Mr. Thomas?
22 A. It is.
23 THE COURT: Mr. Easterby, if you're about to
24 shift gears, this might be a good time for our
25 morning break.

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2 THE COURT: Is that satisfactory?
4 THE COURT: Mr. Shapiro?
5 MR. SHAPIRO: Yes, sir.
6 THE COURT: Mr. Thomas, would you mind?
7 THE WITNESS: (Nods head.)
8 THE COURT: Thank you.
9 LAW CLERK: All rise.
10 Court is now in recess.
11 (Recess: 10:28 a.m. - 10:46 a.m.)
13 Welcome back, Mr. Thomas. You're used
14 to going to your accustomed place.
15 THE WITNESS: Thank you, sir.
16 THE COURT: Mr. Easterby, you may proceed.
18 Q. Mr. Thomas, before we broke, we talked about
19 those first floor elevation surveys the Corps of
20 Engineers had done. Do you recall that?
21 A. For the recon report.
22 Q. Sure.
23 Let me hand you what's been marked as
24 Plaintiffs' Exhibit 61.
25 There you go, sir.

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1 A. Thanks.
2 Q. And Plaintiffs' Exhibit 61 is Bates-stamped
3 USACE459898; correct?
4 A. Correct.
5 Q. It states it's a methodology report; correct?
6 A. Correct.
7 Q. And then it states under a contract 4,030
8 first floor elevation surveys; right?
9 A. Correct.
10 Q. For the Galveston District and Fort Bend
11 counties -- Harris and Fort Bend Counties, Texas,
12 dated September 11, 2003?
13 A. Correct.
14 Q. So you understand this was produced by the
15 Corps of Engineers?
16 A. It was produced for --
17 Q. This litigation?
18 A. Right, yes.
19 Q. So this comes out of the Corps of Engineers'
20 files down in the Galveston District?
21 A. Right.
22 Q. And you're aware that in the past the Corps
23 of Engineers Galveston District hired out John Chance
24 Land Survey to do some work for the Corps; right?
25 A. Correct.

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1 Q. And you're familiar with this document? I

2 believe we discussed it in your deposition.
3 A. Correct.
4 Q. Okay.
6 admit Plaintiffs' Exhibit 61.
10 evidence.)
11 Q. BY MR. EASTERBY: Mr. Thomas, if you would
12 turn to page 4 of this document. It's USACE459901.
13 A. Say it again.
14 Q. 459901.
15 There is a picture of a guy
16 photographing a house on top; right?
17 A. Mine's missing that one.
18 I got you.
19 Q. Oh, I'm sorry about that.
20 If you could zoom in here, Matt, this
21 top part right here.
22 So it says, "First floor elevations
23 within Addicks and Barker reservoirs, task order 2";
24 correct?
25 A. Correct.

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1 Q. It says, "John Chance Land Surveys, Inc., was

2 requested to perform survey services to locate the
3 first floor elevations of 4,030 structures within the
4 25-year flood limits of Addicks and Barker
6 A. Correct.
7 Q. And do you have an understanding what it
8 means by "25-year flood limits of Addicks and Barker
9 reservoirs"?
10 A. I do not.
11 Q. It appears this document would indicate
12 there's 4,030 structures that are within those
13 limits, does it not?
14 A. It does.
15 Q. Do you have any reason to dispute the
16 accuracy of that?
17 A. Well, we looked at some numbers earlier about
18 the recurrence interval, and that doesn't match the
19 recurrence intervals that we talked about.
20 Q. And is it your understanding that in
21 connection with the John Chance survey work, it
22 provided some deliverables to the Corps of Engineers?
23 A. Yes, sir.
24 Q. And when I say deliverables, do you know what
25 I mean by that?

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1 A. I think so.
2 Q. Do you know what a shape file is?
3 A. I do.
4 Q. What's a shape file, Mr. Thomas?
5 A. It is a GIS file that includes location
6 information, as well as a database table associated
7 with the location.
8 Q. Okay. So GIS, again, is an acronym. I don't
9 know what it means. Do you?
10 A. It means geographic information system.
11 Q. So as I understand it, it means that if you
12 have a spreadsheet that gives you the address or
13 latitude or longitude, some kind of coordinate
14 system, it will put that on a map that somebody can
15 look at; right?
16 A. Correct.
17 Q. And it's interactive where you can zoom in
18 and zoom out and click on the points to see the
19 information that's in that spreadsheet; correct?
20 A. Correct.
21 Q. And those deliverables were provided by John
22 Chance Land Survey to the Corps; correct?
23 A. Correct.
24 Q. And you understand they were produced in this
25 litigation.

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1 A. Correct.
2 Q. All right.
3 Mr. Thomas, I'd like to show you what's
4 been marked for identification as Plaintiffs' Exhibit
5 2289.
7 Q. 2289 is a native document shape file
8 placeholder corresponding to a file available in
9 native format Bates-stamped USACEII01823327; correct?
10 A. Correct.
11 Q. The name of that file is
12 Addicks_flooding_structures.kml; correct?
13 A. Correct.
14 Q. And do you know what that KML extension
15 means?
16 A. I don't remember what the acronym stands for.
17 Q. Well, I mean, that's a shape file extension;
18 right?
19 A. It's part of one.
20 Q. It's part of one.
21 And do you see on the second page
22 there's a screenshot of the Addicks flooding
23 structures?
24 A. Yes.
25 Q. So it's your understanding that if one is to

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1 take the deliverables that John Chance supplied, you

2 can create this shape file, load it into Google
3 Earth, and see the image therefrom?
4 A. Correct.
5 Q. Okay. And, again, you understand this was a
6 native document that was produced by the Corps of
7 Engineers in this litigation?
8 A. Correct.
9 MR. EASTERBY: Okay, your Honor.
10 We would move to admit Plaintiffs'
11 Exhibit 2289, which is a native placeholder, and then
12 we'd like to show the accompanying shape file.
15 The document, though, that I think is
16 actually in the binders is just the placeholder.
17 There is no -- it sounds like the witness has them.
18 MR. EASTERBY: Oh, I'm sorry, Bill.
19 Hold on.
20 MR. SHAPIRO: Unless it's something else.
21 MR. EASTERBY: I believe we e-mailed this to
22 you, but there's an extra copy.
23 THE COURT: The Court accepts and admits
24 PX2289 but just as a placeholder.
25 The shape file is in what format,

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1 Mr. Easterby?
2 MR. EASTERBY: It is called a KML file, your
3 Honor, and I don't know what that means, but I do
4 know if you double-click on it, and you have Google
5 Earth Pro, it will show you the corresponding dots of
6 all these structures.
7 And we provided the electronic version
8 to counsel for the United States during the pretrial
9 phase of the case.
10 THE COURT: And the shape file itself was
11 obtained from whom?
12 MR. EASTERBY: It was obtained from the Corps
13 of Engineers. We got some CD-ROMs or DVDs. You may
14 recall we talked about this several months ago. We
15 were able to obtain them and got these shape files.
16 THE COURT: Okay. The Court could not recall
17 were you obtained them, actually, from the Corps or
18 John Chance.
19 Thank you. You answered the question.
20 Thank you.
21 (Plaintiffs' Exhibit 2289 was received
22 in evidence.)
24 All right, Matt, if you would, please
25 put up Google Earth and select the Addicks flooding

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1 structures KML box.

2 Q. Okay. So, Mr. Thomas, it's correct that the
3 Corps of Engineers had John Chance go out and do
4 those surveys and all these red areas that are behind
5 Addicks; correct?
6 MR. SHAPIRO: Well, wait, your Honor.
7 We don't object to this document, but
8 the document I was just given is different than what
9 we're seeing on the screen.
10 MR. EASTERBY: Well, I think that's --
11 Zoom in some, Matt. I think it will
12 clear it up.
13 It is a large file, Judge, so it is a
14 little bit slow.
15 THE COURT: I'm sorry to take your time with
16 this, but if the Court were to look at this image,
17 where would it find it or want to look at it? Is it
18 electronically available only? Or how do we do that?
19 MR. EASTERBY: Well, so, your Honor, I did
20 kind of belts and suspenders.
21 As we talked about in pretrial, we are
22 going to furnish the Court's clerk with all the
23 native files that are admitted into evidence at the
24 end of the case.
25 THE COURT: That's what I was afraid of.

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1 MR. EASTERBY: Or today, or now, whatever the

2 Court would like.
3 I also did this screenshot, so we'd have
4 a physical -- or a printout of it, just in case.
5 THE COURT: Would you provide in due course,
6 not immediately, a copy of the screenshot?
7 MR. EASTERBY: Yes, sir. I can hand the
8 Court a copy of that right now if you'd like.
9 THE COURT: No, you don't need to do that.
10 Just before the day is over.
11 MR. EASTERBY: Okay. Thank you, your Honor.
12 So Matt, do me a favor and just click in
13 one of these dots that are in the Bear Creek Village
14 area. There's so many, it's kind of hard to pick
15 one, but pick any one.
16 Q. Okay. Mr. Thomas, can you see that on your
17 screen?
18 A. Yes, sir.
19 Q. So as you described the GIS approach, there's
20 a corresponding spreadsheet that's been
21 geo-referenced onto this map of the Addicks reservoir
22 area; right?
23 A. Correct.
24 Q. And that spreadsheet has a lot of information
25 in it, doesn't it?

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1 A. It can.
2 Q. Well, I mean, that's what we're seeing here;
3 correct?
4 A. This one does.
5 Q. It has the owner's name, Mark Judge in this
6 case; correct?
7 A. Correct.
8 Q. It's got the address, 4402 Wee Lassie;
9 correct?
10 A. Correct.
11 Q. I believe it has elevation on here somewhere.
12 There it is. Elevation 108.6828; correct?
13 A. Correct.
14 Q. And that corresponds to the first floor
15 elevation?
16 A. I believe so.
17 Q. It has the legal description of that house;
18 right?
19 A. Correct.
20 Q. And I think it even has some information
21 about the appraisal district's appraised value and
22 square footage and several other things; correct?
23 A. Correct.
24 Q. So this means for all of these dots that
25 we're seeing behind Addicks under this file that's

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1 called Addicks_flooding_structures, the Corps of

2 Engineers had all of that information for every
3 single one of those dots; right?
4 A. I'd have to check every one to make sure it's
5 all populated, but potentially.
6 Q. All right. Well, let's not do that, 'cause
7 that would take us through all of our time.
8 And as we talked about yesterday, the
9 Corps of Engineers never sent out any notice to those
10 folks that they were in an area subject to being
11 inundated by the runoff impounded by the Addicks
12 reservoir; correct?
13 A. I'm not sure if we agreed to that.
14 Q. Are you saying that the Corps of Engineers
15 sent out notice to all the people that are listed in
16 Addicks_flooding_structures saying, you are in an
17 area that is subject to being inundated by the runoff
18 impounded by the Addicks reservoir?
19 A. We talked about public meetings and public
20 notices and those kind of things.
21 Q. Sure.
22 This was never shown in any public
23 meeting, was it?
24 A. I don't know.
25 Q. Okay. Well, if it was, I'm sure counsel for

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1 the government will correct me.

2 Let's move on. I've got three of these.
3 The next one is what's been marked for
4 identification as Upstream 2292. Do you need a copy
5 of this?
6 MR. SHAPIRO: Thanks.
7 Q. BY MR. EASTERBY: And 2292 is a shape file
8 placeholder for a file called
9 Barker-Harris_flooding_structures.kml; correct?
10 A. Correct.
11 Q. And it's your understanding that was another
12 deliverable that John Chance provided; correct?
13 A. Correct.
15 admit Upstream 2292 into evidence.
19 in evidence.)
20 Q. BY MR. EASTERBY: Okay. Matt, could you
21 please deselect --
22 You've already done it.
23 Select the Barker-Harris flooding
24 structures, if you would.
25 Can you see that, Mr. Thomas?

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1 A. Yes.
2 Q. And you know that Harris County line kind of
3 runs at a 45-degree angle through Barker reservoir
4 right here; correct?
5 A. Correct.
6 Q. So all these blue areas up here are in Harris
7 County; right?
8 A. Correct.
9 Q. And, again, these are the structures that
10 were surveyed for the purpose of establishing the
11 homes that were in the area that's subject to being
12 inundated by that rising Barker pool created from the
13 impounded runoff; right?
14 A. Say it again?
15 Q. It's correct that the purpose of doing this
16 was to identify all the structures that were at --
17 that are at risk for being submerged by the runoff
18 that is held back/impounded by the Barker reservoirs;
19 correct?
20 MR. SHAPIRO: Well, I think that misstates
21 the actual document that we looked at earlier. It
22 refers to a particular flood pool.
23 THE COURT: All right. Nonetheless, the
24 question itself is unobjectionable. You may answer
25 of your own personal knowledge, Mr. Thomas.

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1 THE WITNESS: So I think these were to

2 identify -- I think these were selected to identify
3 the first floor elevations of homes upstream of the
4 reservoirs.
5 Q. BY MR. EASTERBY: And the name of the file is
6 Barker-Harris Flooding Structures; right?
7 A. Right.
8 Q. Okay. So again, Matt, would you please click
9 on one of these?
10 It's got the same information as the
11 prior one; correct?
12 A. It does have the same kind of information.
13 Q. Okay. It's got all the elevations; yes?
14 A. Correct.
15 Q. And Mr. Thomas, it's correct that the purpose
16 of doing this, as we saw earlier, was to try to
17 identify the structures that, if there was maximum
18 impoundment, would be submerged by that rising pool;
19 is that correct?
20 MR. SHAPIRO: Your Honor, this is my
21 objection: That mischaracterizes the document, which
22 is PX61. He's saying it --
23 THE COURT: Would you speak into the
24 microphone? I'm sorry.
25 MR. SHAPIRO: Yes, your Honor.

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1 What he just said was that it was an

2 intent to depict or to survey the maximum pool.
3 My concern is that that's not consistent
4 with PX61, which we looked at earlier -- which
5 referred to -- I think, Mr. Thomas testified as he
6 read it -- it's a 25-year.
7 THE COURT: Ordinarily, the Court would not
8 allow a speaking objection, but in this particular
9 case, I will.
10 Nonetheless, the question is proper.
11 Let's go forward.
13 THE WITNESS: So let me go back and read the
14 purpose.
15 Q. BY MR. EASTERBY: Well, let me ask you the
16 question, Mr. Thomas, just to make it clear:
17 I mean, the Corps of Engineers spent
18 several hundred thousand dollars having John Chance
19 Land Survey go out and do all these elevations;
20 correct?
21 A. I forgot the cost.
22 Q. Well, it's a substantial amount; right? I
23 mean, it's a lot of work.
24 A. It wasn't free.
25 Q. It wasn't free.

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1 And the purpose for doing that was to

2 identify the structures that are potentially subject
3 to being inundated at maximum impoundment; right?
4 A. Does it say that?
5 Q. No, I'm asking you.
6 Mr. Thomas, what document are you
7 looking at?
8 A. I'm in 61, sir.
9 Q. Okay. Just to make sure there is no
10 confusion, 61 is relating to 4,020 structures;
11 correct?
12 A. It says 4,030.
13 Q. Thirty, pardon me.
14 What I'm showing you on this map has got
15 well over 4,030; all right?
16 A. Okay.
17 Q. Just so there is no confusion, the exhibit
18 you're looking at, which if you would be kind enough
19 to tell me what it is, is that the methodology
20 report?
21 A. It is.
22 Q. What's the number?
23 A. 61.
24 Q. 61, okay.
25 That wasn't intending to say that 61 was

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1 this; okay?
2 A. Oh, okay.
3 Q. All right.
4 I'm asking you just based on what you're
5 looking at here, the purpose of getting all these
6 elevations was to identify the ones that would
7 potentially be subject to being submerged by the
8 runoff that's being held back; correct?
9 A. Well, maybe.
10 I don't know if I've seen the exact
11 purpose for why they collected this data originally.
12 Q. Well, didn't we just see the recon report,
13 that they did those structure analyses and got all
14 those first floor surveys?
15 A. Right.
16 That was well before this; right?
17 Q. Well, the recon report came out in '95.
18 That document you're looking at is from
19 9/11/2003.
20 A. Right.
21 Q. So you would assume that that structure
22 inventory was done prior to the recon report coming
23 out; right?
24 A. Right.
25 Q. Okay.

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1 A. It's just 10 years before this.

2 Q. Anyway, Mr. Thomas, the point is, you know
3 what the maximum impoundment for Barker would be;
4 right? From those elevation impact tables --
5 A. Right.
6 Q. -- spillway design flood.
7 It's got 108 feet for Barker; right?
8 A. Correct.
9 Q. High point of dam is 113.1; correct?
10 A. That sounds right.
11 Q. So, ostensibly, if anyone's got an elevation
12 that's, what, less than 113.1, they may get water in
13 their house; correct?
14 A. I'm not sure the analysis shows that.
15 Q. You'd agree with me that if it got to 108
16 feet, if someone has an elevation less than that,
17 they could be subject to impoundment by -- or
18 submersion by that impoundment runoff; correct?
19 A. It's possible.
20 Q. And if you click on any one of these dots, or
21 look at that spreadsheet, you could find out exactly
22 what that elevation is for that property; right?
23 A. Correct.
24 Q. Okay. I've got one more. Let's keep moving.
25 Let me hand you what's been marked as

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1 2290.
2 And 2290 is a native placeholder for a
3 file called FT_BND-parcels-CNT_STPL83.kml. Do you
4 see that?
5 A. Yes, sir.
6 MR. EASTERBY: And since we've laid the
7 foundation from the prior two, I'll take a shot of
8 asking that 2290 be admitted into evidence.
11 It's admitted as a placeholder only, but
12 the actual file is admitted.
13 MR. EASTERBY: The actual file is admitted?
14 THE COURT: Yes.
15 MR. EASTERBY: Thank you, Judge.
16 (Plaintiffs' Exhibit 2290 is received in
17 evidence.)
18 Q. BY MR. EASTERBY: Okay. This is showing the
19 areas for Fort Bend County; correct?
20 A. It appears to.
21 Q. Matt, do me a favor and click on one of these
22 houses here in Cinco Ranch, I mean, Canyon Gate.
23 Okay. So this has got some of that same
24 information, address 20234 Black Canyon Drive;
25 correct?

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1 A. 20234?
2 Q. Yeah.
3 A. Correct.
4 Q. It's got the owner's name? Yes?
5 A. It does.
6 Q. Okay. So, Mr. Thomas, did the Corps of
7 Engineers then prepare its own maps based on this
8 information to come up with some graphable depictions
9 of which homes would be inundated at certain
10 elevations?
11 A. Probably.
12 Q. Okay. Let me hand you what's been marked as
13 Upstream 271.
15 Q. And Mr. Thomas, this does have a Bates-stamp
16 on it. It's so small I am struggling to read it. I
17 will ask one of my colleagues if they can identify
18 the Bates label on 271.
19 All right. Mr. Thomas, you know down in
20 the Galveston District, there's some large maps that
21 the Corps of Engineers maintains that have some
22 information showing Addicks and Barker reservoir, and
23 behind it, it's got these lines showing certain
24 elevations and contours. You've seen those, haven't
25 you?

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1 A. I've seen some of them.

2 Q. Okay. And I'll represent to you that last
3 year we went down to Galveston and collected those
4 maps and made large copies of them.
5 So you're familiar with 271, I take it?
6 A. I don't know. Maybe. It's really hard to
7 see what it is.
8 Q. Well, I've got a larger set, and with the
9 Court's permission, I'll put it up so everybody can
10 see it.
11 This is the second page of 271, Addicks
12 reservoir data photos 2002. Do you see that,
13 Mr. Thomas?
14 A. Yes, sir.
15 Q. And do you recognize this now that it's in a
16 larger format?
17 A. It looks like a contour map.
18 Q. Right.
19 And you can see here -- I know you all
20 can't see, but I'll read it to you. It's got
21 contours of 104, 106, 108, 110, 112, 114 and 116;
22 right?
23 A. Correct.
24 MR. EASTERBY: All right. Your Honor, we
25 would move to admit Plaintiffs' Exhibit 271 into

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1 evidence.
5 evidence.)
6 Q. BY MR. EASTERBY: So, Mr. Thomas, the purpose
7 of this was to show the various homes that are within
8 those various contour elevations; correct?
9 A. I think the purpose is generally to show the
10 elevation or the topography around the reservoirs.
11 Q. Sure.
12 A. You can use it for whatever you need at the
13 time.
14 Q. Right.
15 So you've got -- here it says, end of
16 dam elevation, 108 feet; right?
17 A. Correct.
18 Q. So if you want to know all the houses that
19 are going to get submerged, if the pool gets to, say,
20 108 feet, you can follow that 108 contour around and
21 see that; correct?
22 A. You could use it for that purpose.
23 Q. What other purpose would you use it for?
24 A. Well, you might be interested in the streets.
25 You might be interested just generally in the pool.

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1 You might be interested in finding routes for things

2 during floods.
3 Q. Okay. And it's correct that this was never
4 shown to the public; right?
5 A. I don't know.
6 Q. You're not aware that it ever was shown to
7 the public; correct?
8 A. I don't know.
9 Q. So as we talked about on the first day, the
10 Corps of Engineers literally had the address and name
11 and elevation of every single structure behind
12 Addicks that can be impounded by that rising
13 reservoir pool; yes?
14 A. Correct.
15 Q. It knows if the pool gets to 109.1 feet
16 behind Addicks, it knows exactly which structures are
17 going to be submerged, doesn't it?
18 A. We have that information. I don't know that
19 you can say exactly.
20 Q. Well, it's got every single house and
21 address, doesn't it?
22 A. It does.
23 Q. It's got the elevation?
24 A. It does.
25 Q. Owner's name?

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1 A. Yes.
2 Q. So it knows exactly which structures would be
3 submerged if the pool gets to, as it did during
4 Harvey on August 30th, 109.1 feet; right?
5 A. Well, it's the exact thing I'm taking an
6 issue with. Generally, yes, but there could be some
7 homes that we don't have in the database.
8 Q. Okay.
9 A. There could be some that are incorrect, some
10 that have settled due to subsidence.
11 Q. And you can see here, this is the west
12 Houston Airport terminal here. Do you see that?
13 A. Yes, sir.
14 Q. And it's outlined in this green area. Do you
15 see that?
16 A. Yes, sir.
17 Q. I think that corresponds with 108; right?
18 A. It's hard to see from here.
19 Q. I'll tell you, the elevation of that terminal
20 building, I think, is about 108.5; all right?
21 A. Okay.
22 Q. So the Corps knows if the pool gets above
23 108.5, it just submerged the west Houston terminal
24 building; right?
25 A. Above 105 -- 108.5, there would be water over

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1 that elevation.
2 Q. Same is true for the Lakes on Eldridge
3 Community Center that's right here; correct?
4 A. I'll trust you. It's hard to...
5 Q. The Winns' house, which is here?
6 A. Again, I'm not close enough to see the
7 elevations.
8 Q. Well, it's in that green area. You can see
9 that, can't you?
10 A. Right.
11 Q. Ms. Burnham's house over here on Four Seasons
12 Drive, it's in that area that's in this colored
13 place; correct?
14 A. It appears to be.
15 Q. Mitch and Donna Stewarts' house over here on
16 Eagle Trail, it's in that green area; correct?
17 A. It appears to be.
18 Q. You've got Mr. Turney's house over here on
19 Red Willow. It's in that area; correct?
20 A. Correct.
21 Q. And all the test properties are in this area.
22 Isn't that right, Mr. Thomas?
23 A. I'm not entirely sure.
24 Q. Okay. Well, for the sake of time, I'll keep
25 moving.

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1 Let's go to the next exhibit, which is

2 Plaintiffs' Exhibit 268, and 268 is a series of
3 smaller scaled images of those same kind of large
4 maps. Do you see that?
5 A. Yes, sir.
6 Q. Okay. You're familiar with these as you were
7 with the prior one?
8 A. Generally.
9 MR. EASTERBY: Okay, your Honor.
10 We would move to admit Upstream --
11 sorry.
12 We'd move to admit Plaintiffs' Exhibit
13 268.
17 evidence.)
18 Q. BY MR. EASTERBY: And if you direct your
19 attention to the second page, Mr. Thomas, this is for
20 Barker reservoir.
21 And again we see there's an elevation
22 contour legend down here on the bottom right. Do you
23 see that?
24 A. Yes, sir.
25 Q. It starts down at Barker 97 in green; Barker

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1 99 is in blue; Barker 101 is in, maybe, purple;

2 Barker 103 is in yellow; Barker 106 is in red. Do
3 you see that?
4 A. Yes, sir.
5 Q. And so, again, this is showing in these
6 colors the various elevations of the homes and
7 structures that are behind the Barker reservoir;
8 right?
9 A. Is it showing the actual homes or is it
10 showing the land?
11 Q. Well, don't you see the blue -- I mean,
12 Canyon Gate -- can you see all the blue and green
13 down here?
14 A. Sorry if I move around.
15 Q. Absolutely. Come on up.
16 A. It looks like the contour is of the land and
17 not the homes. I think that's what this is.
18 Q. Okay. I'll follow up on that.
19 You're saying it's contours of the land
20 and not the homes?
21 A. I believe this database -- I'm just guessing,
22 because I don't remember when this was made, but
23 usually these are the topography of the land and not
24 the topography of the first floor elevations.
25 Q. Well, you all have the first floor

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1 elevations; right?
2 THE COURT: Let's stop a second, because I
3 just want to make sure that the reporter can hear you
4 and gets a transcript.
5 THE REPORTER: Thank you, Judge.
6 THE COURT: That's fine, Mr. Thomas, if you
7 want to go down and actually take a closer look.
8 That's perfectly fine.
9 Q. BY MR. EASTERBY: I'll tell you what. I'll
10 bring it in a bit closer.
11 How about that?
12 A. Thank you.
13 Q. Okay. So you can see here down in Canyon
14 Gate, a blue 99. You see that's kind of all these
15 lot lines; right?
16 A. Well, it kind of follows that. It may be
17 following the streets, which are lower.
18 Q. Yeah, that's green though; right? 97 feet.
19 That's all the streets.
20 A. It may be.
21 Q. Well, the streets are lower than the first
22 floors of the homes; right?
23 A. Right.
24 Q. Yeah. So the Corps knows that at these
25 elevations in Canyon Gate, 99 feet, some of them at

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1 101, if the pool gets higher than that, it's going to

2 submerge those homes; correct?
3 A. Well, those elevations, again, you need to
4 show the first floor elevations of the home in
5 comparison to those elevations.
6 Q. And the Corps has the first floor elevations
7 of all those homes; right?
8 A. Again, most of them. There could be some
9 missing.
10 Q. Right.
11 And maybe some were not yet built when
12 this map was done; correct?
13 A. Potentially.
14 Q. Well, you can see right here, there's a big
15 gap area that's now filled with homes; correct?
16 A. Correct.
17 Q. Cinco Ranch?
18 And here, again, that means the Corps of
19 Engineers knows the address, the elevation, the name
20 of the individuals that owned it for all these homes
21 and structures behind the Barker reservoir; right?
22 A. For many of them.
23 Q. For many of them.
24 And it knows that when that pool gets
25 high enough from impounding the runoff, it's going to

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1 submerge all those homes?

2 A. Again, based on the pool elevation and the
3 first floor elevation of the home.
4 Q. So, Mr. Thomas, that means that on August
5 30th, when the pools reached their maximum elevation,
6 it was no surprise to the Corps as to which
7 structures were going to be submerged; right?
8 A. Say it again.
9 MR. SHAPIRO: Your Honor, could we request a
10 quick sidebar?
11 THE COURT: I'm sorry. You have to speak up.
12 MR. SHAPIRO: Could we request a quick
13 sidebar, your Honor?
14 THE COURT: Yes.
15 MR. EASTERBY: It's a bench trial.
16 THE COURT: It is.
17 THE REPORTER: Do you need me, Judge?
18 Do you need me?
19 THE COURT: No.
20 (Sidebar conference off the record.)
21 THE COURT: This is obviously a federal court
22 trial, and no cameras or video equipment is allowed
23 in the courtroom. The Court will just note that.
24 Q. BY MR. EASTERBY: Okay. So the question was,
25 Mr. Thomas, August 30th, 2017, that was the date of

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1 the maximum pools for Addicks and Barker; right?

2 A. Correct.
3 Q. So when the Barker pool got to 101.59, that
4 means the Corps of Engineers knew with a great deal
5 of precision exactly which homes behind Barker were
6 submerged by the runoff that had been held back by
7 the Barker embankments; correct?
8 A. So we did have information related to the
9 pool level and the extent of inundation.
10 Q. And you had information about all these
11 structures and their elevations and the names of the
12 folks that lived there, et cetera; right?
13 A. Based on the data we talked about.
14 Q. Sure.
15 Let me hand you two exhibits,
16 Plaintiffs' Exhibit 62 and 63. And 62 and 63 are
17 images that were produced in this litigation by the
18 Corps of Engineers. 62 is USACE239904, and 63 is
19 USACE238985. Do you see that?
20 A. Yes, sir.
21 Q. And is it your understanding that John
22 Chance, actually provided the Corps, as part of its
23 deliverables, with photographs of all the homes it
24 had surveyed?
25 A. I believe so.

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1 Q. And are these two photographs from that

2 exercise?
3 A. They look like it.
4 MR. EASTERBY: Okay, your Honor. We would
5 move to admit Plaintiffs' Exhibits 62 and 63.
8 (Plaintiffs' Exhibits 62 and 63 were
9 received in evidence.)
10 Q. BY MR. EASTERBY: And 62, please read the
11 address if you would there, Mr. Thomas.
12 A. It says 4310 Cassidy Park Lane.
13 Q. And is it your understanding that that's the
14 address of one of the test properties in this case?
15 A. I don't have the test property addresses
16 memorized.
17 Q. All right. I'll tell you that's the domicile
18 of Mr. and Mrs. Giron. Did you know that?
19 A. I think you told me that before.
20 Q. Sure.
21 And it's got the elevation here. It
22 says 102 feet, and that's what's on the bottom right
23 of the exhibit; correct?
24 A. Correct.
25 Q. And then in 63, could you read that address,

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1 please?
2 A. 6411 Canyon Park Drive.
3 Q. And did you know that that is the address of
4 one of the other test property plaintiffs?
5 A. I'm going to assume that it is.
6 Q. I believe that is Ms. Micu's house; yes? Did
7 you know that?
8 A. I think you told me that before, but I don't
9 remember the name for the house.
10 Q. Sure.
11 So, I mean, the Corps of Engineers
12 literally had photographs of these homes that had
13 their address and elevations; right?
14 A. Correct.
15 Q. Okay. All right. Let's move on, Mr. Thomas.
16 I do not have an excerpt copy of this
17 one. I need to get Plaintiffs' Exhibit 59, and we're
18 close to the end, Mr. Thomas.
19 Okay. Plaintiffs' Exhibit 59 is a draft
20 operational assessment of the Addicks and Barker
21 reservoirs, Fort Bend and Harris counties, Texas;
22 correct?
23 A. Correct.
24 Q. Dated October 2009; yes?
25 A. Correct.

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1 Q. And it looks like it's from the Corps of

2 Engineers, and it's also got Harris County Flood
3 Control District on the front?
4 A. Correct.
5 Q. It's Bates-stamped USACE464067?
6 A. Correct.
7 Q. And this is one of the documents that you
8 reviewed in your deposition; correct?
9 A. I believe so.
10 Q. And you don't have any reason to doubt its
11 authenticity or that it's been maintained in the
12 ordinary course of business down at the district
13 office in Galveston these many years?
14 A. I do not.
16 admit Plaintiffs' Exhibit 59 into evidence.
20 evidence.)
21 Q. BY MR. EASTERBY: So, Mr. Thomas, what is the
22 draft operational assessment document talking about,
23 if you know?
24 A. So it says on 464070, that URS has conducted
25 an operational assessment study of the Addicks and

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1 Barker reservoirs to identify if there is a federal

2 interest in continued evaluation of operational
3 changes to the reservoirs.
4 Q. Sure.
5 And so that '95 recon report had
6 explored that possibility; right?
7 A. It did.
8 Q. And it looks like it's being explored here
9 again?
10 A. It does.
11 Q. And it's correct that there were no
12 operational changes made after 2009; right?
13 A. Let me just refresh myself on what they were
14 recommending.
15 I think that's not correct.
16 Q. I'm sorry?
17 A. I think that's not correct.
18 Q. What's not correct?
19 A. Your question.
20 Q. That there's been operational changes
21 subsequent to this?
22 A. Right.
23 Q. Okay. Let me ask it a better way: There
24 have not been any operational changes subsequent to
25 2009 to try to reduce the impact on the upstream

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1 folks that live adjacent to Addicks and Barker; true?

2 A. Correct.
3 Q. Right.
4 Because the project exists to protect
5 downstream; right?
6 A. That's its purpose.
7 Q. Right.
8 So in order for the Corps of Engineers
9 to change the operations to try to benefit upstream,
10 it would have to get new authorization from Congress
11 to do that, wouldn't it?
12 A. Generally.
13 Q. What's the exception?
14 A. A deviation, for example, potentially.
15 Q. And there's never been a deviation to try to
16 benefit or lessen the impact on the upstream folks
17 from being submerged by the pool, the results of
18 runoff that's being held back; isn't that right?
19 A. I don't know.
20 Q. Fair enough.
21 Please go to page 22 of the document.
22 It's USACE464091.
23 A. Got it.
24 Q. So we saw in the '95 recon report there was
25 an appraisal of the estimated damages that would

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1 result at that time; correct?

2 A. Correct.
3 Q. And it talks about that in the second
4 paragraph. It talks about how the Section 216 study
5 of '95 made those estimates; correct?
6 A. Correct.
7 Q. And so table 8, which is below that, is
8 providing updates; is that correct?
9 A. It appears to.
10 Q. Oh, actually that table is the '95 summary,
11 so let's go to the next page.
12 And it says at the top, "A more recent
13 survey of development vulnerable to flooding at the
14 fringes of the government-owned land was undertaken
15 by Lockwood, Andrews and Newman, Inc., in September
16 of 2005"; correct?
17 A. Correct.
18 Q. And those updated figures are reflected in
19 table 9. Do you see that?
20 A. I was just making sure.
21 Correct.
22 Q. So this says that for Addicks reservoir,
23 hundred-year floodplain, that's $822,000. Do you see
24 that?
25 A. I do.

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1 Q. What does that mean to you, Mr. Thomas?

2 A. I don't know what that means.
3 Q. Doesn't that mean that if the Addicks
4 reservoir gets to its hundred-year pool level,
5 according to this, that it's going to cause $822,000
6 in damage?
7 A. That's what it seems to say.
8 Q. And supposedly the Addicks government-owned
9 land is sufficient to contain a 250-year event?
10 A. Approximately.
11 Q. It doesn't seem to be consistent with what
12 we're seeing in this document, does it?
13 A. I'm not sure what the background of this
14 document is. I'll spend some time reading it here.
15 Q. And then it says that nearest to the standard
16 project flood elevation, 109.7, the updated damage
17 assessment now is $574 million plus; correct?
19 Q. And this was back in 2009; right?
20 A. Right.
21 I don't have any way to know if that
22 number has been through a quality control process or
23 not, because this is dated as a draft, so that's what
24 it says.
25 Q. Well, it apparently comes from this Lockwood,

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1 Andrews & Newman Company; right?

3 Q. And they did it in September of 2005; right?
5 Q. So that's about almost 15 years ago; correct?
6 A. Right.
7 Q. And if we look down at Barker, its
8 hundred-year flood damage is $3.4 million back in
9 2005; correct?
11 Q. And its standard project flood damage in 2005
12 is $868 million and change; correct?
13 A. Can I look at something real quick?
14 So it doesn't actually say damages in
15 table 9. That's what I'm trying to find. It says
16 development risk, so I'm not sure if they mean the
17 same thing in the two tables or not.
18 Q. Well, let me help you out with that.
19 Matt, zoom back out for just a second
20 and go to the paragraph below right down here.
21 It says, "It is estimated that annual
22 average flood damages upstream of the Addicks
23 reservoir have at least doubled since '95 and are now
24 likely to be in the region of $150,000 to $200,000
25 per year; correct?

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1 A. Correct.
2 Q. So doesn't that mean to you that this is
3 talking about upstream flood damages, that table we
4 just looked at?
5 A. It might. I'm not familiar with this
6 document, so I'm not sure.
7 Q. Mr. Thomas, what else could it be looking at
8 except for that?
9 A. Because it says development risk, it kind of
10 implies that maybe it means the total value of the
11 properties.
12 Q. Go back to that table if you would, please,
13 Matt.
14 So, it says, "Summary of Development in
15 Reservoir Pool"; right?
16 A. Right.
17 Q. So what are you saying? You think this might
18 be the total value of the structures as opposed to
19 the amount of damage that would be caused by being
20 submerged by the runoff that's being held back?
21 A. It could be, I'm just not sure. That's my
22 confusion.
23 Q. All right. Fair enough.
24 But nonetheless, this appears to show
25 that the damages or at least the values have

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1 increased dramatically since 1995; right?

2 A. It does show an increase.
3 Q. Yes, and the Corps of Engineers was well
4 aware of that; correct?
5 A. We did have this document.
6 Q. Okay. Let me hand you PX64 and 65.
7 I've just been handed a note that I need
8 to hurry up. Oh, boy.
9 Can you please get a copy to the witness
10 of 64 and 65? I've only got my handwritten versions
11 here.
12 Okay. Sixty-four is a table, Addicks
13 NAVD1998, updated September 2011; correct?
14 A. Correct.
15 Q. Sixty-five is Barker, updated September 2011;
16 correct?
17 A. There's also some more stuff in here.
18 Q. Sure.
19 I'm just going to focus on the first
20 page, if it's okay with you.
21 A. Right.
22 Q. You've seen these before; right?
23 A. I have.
24 Q. Do you remember when I asked you yesterday if
25 the Corps knows the first street it floods, the first

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1 home it floods? Do you remember those questions?

2 A. Yes, sir.
3 Q. Does that come from these two exhibits we're
4 looking at?
5 A. This is where I would look to find that
6 information quickly.
7 Q. Thank you.
9 admit Plaintiffs 64 and 65 into evidence.
12 (Plaintiffs' Exhibits 64 and 65 were
13 received in evidence.)
14 Q. BY MR. EASTERBY: So these tell you at the
15 bottom "within the reservoir." Do you see that?
16 A. Yes, sir.
17 Q. And that means that these are the homes that
18 are within the area that's subject to being submerged
19 by the runoff that's being held back by the
20 government structures; correct?
21 A. Say it again.
22 Q. This means that these are structures that are
23 within the area that's subject to being submerged by
24 the runoff that's being held back by the government's
25 structures; correct?

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1 A. Correct.
2 Q. So they're in the reservoir.
3 A. That is what this says.
4 Q. Right.
5 And the Corps literally knows the first
6 street, the first house, that it will flood with that
7 runoff that's being held back for both Addicks and
8 Barker, per these exhibits; correct?
9 A. Well, we do know at certain elevations which
10 homes are the lowest and which streets are the
11 lowest.
12 Q. And you know that when the pool, as a result
13 of that runoff being held back, gets above those
14 elevations, it will flood those streets, and it will
15 flood those homes; right?
16 A. Right.
17 Q. All right. Okay. Mr. Thomas, let me hand
18 you what's been marked as Joint Exhibit 91.
19 JX91 is something called the 2009 Master
20 Plan for Addicks and Barker Reservoirs; correct?
21 A. Correct.
22 Q. And this is one of the documents you reviewed
23 in preparation for your testimony; correct?
24 A. Correct.
25 MR. EASTERBY: Your Honor, we'd move to admit

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1 Upstream -- Plaintiffs' Exhibit 796 in evidence.

3 THE COURT: JX91 is admitted.
4 (Joint Exhibit 91 is received in
5 evidence.)
6 Q. BY MR. EASTERBY: So, Mr. Thomas, what's the
7 purpose of having a master plan? What does that
8 mean?
9 A. I'll just read it, it's 16052.
10 The purpose of the Addicks and Barker
11 reservoirs master plan is to provide guidance to the
12 USACE Galveston District when making decisions on
13 management actions on Addicks and Barker reservoirs.
14 Q. Okay. Was this something that was shared
15 with the public?
16 A. I don't know.
17 Q. Go with me to page 7 of the exhibit, if you
18 would. I think this must have been printed off a
19 native file, because I don't see any Bates numbers,
20 but it's page 7.
21 Okay. So what are we seeing on page 7
22 there, Mr. Thomas?
23 A. So this shows an aerial of the area
24 surrounding the Barker reservoir, and contours
25 representing the two-year flood through the

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1 hundred-year flood, as well as the Barker reservoir

2 downstream.
3 Q. And is it your understanding that this image
4 was shown to the public in some of those public
5 meetings that counsel for the government referenced
6 in the opening statement?
7 A. It may have been.
8 Q. Yeah, and this shows that the hundred-year
9 flood is fully contained within government-owned
10 land; right?
11 A. It does.
12 Q. We saw a prior document that said that that's
13 not true; correct?
14 A. That prior document did say that.
15 MR. EASTERBY: All right.
16 Thank you, Mr. Thomas.
17 Your Honor, I'll pass the witness.
19 Mr. Easterby, we'll give you a moment to
20 get organized.
21 Mr. Shapiro, are you going to do the
22 cross-examination, which is really, because it is a
23 friendly witness, direct examination?

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1 You may proceed, Mr. Shapiro.

2 MR. SHAPIRO: Thank you, your Honor.
3 CROSS-EXAMINATION
4 BY MR. SHAPIRO:
5 Q. Good morning, Mr. Thomas.
6 A. Good morning.
7 Q. Mr. Thomas, you've been on the stand for
8 several hours now already, but I just want to back up
9 a little bit.
10 You stated in your earlier testimony
11 that you have a bachelor's degree in maritime systems
12 engineering; is that correct?
13 A. Yes.
14 Q. And do you have any other degrees?
15 A. Master's degree in ocean engineering from
16 Texas A & M, as well.
17 Q. And when did you obtain that degree?
18 A. 2007.
19 Q. After you graduated, what did you do?
20 A. Well, while I was in school, I was an intern
21 for the U.S. Army Corps of Engineers, and after I
22 graduated --
23 Q. I'm sorry. You will have is to slow down.
24 A. Oh, before I graduated, I was an intern for
25 the U.S. Army Corps of Engineers, and after I

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1 graduated, I went to work for HGR Engineering as a

2 consultant.
3 Q. And when did you start working full-time for
4 the Army Corps of Engineers?
5 A. I think it was 2010.
6 Q. And what was your first full-time job?
7 A. Research coastal engineer for the Engineering
8 Research and Development Center.
9 Q. Is that sometimes referred to ERDC?
10 A. Yes, sir.
11 Q. And explain, please, what ERDC is?
12 A. It's one of the Army's seven research labs,
13 and it focuses -- my office there was the coastal and
14 hydraulics lab.
15 (Interruption by the reporter.)
16 THE WITNESS: My office was the coastal and
17 hydraulics lab, and we focused on the research of
18 coastal hydraulics, things like numerical models -- I
19 had to develop those -- applied analyses to things
20 like navigation projects or river systems, et cetera.
21 Q. BY MR. SHAPIRO: And how long did you work at
22 ERDC?
23 A. Around three years.
24 Q. Okay. So when you finished with ERDC, what
25 did you do next with the Corps?

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1 A. I was the Galveston District's Hydrology and

2 Hydraulics Branch Chief.
3 Q. Okay. And I think there's been some prior
4 testimony about that, but just briefly, what was your
5 primary job responsibilities in that role?
6 A. So, in that role, I was responsible for water
7 control and all the hydraulic studies for the
8 districts, all the coastal engineering-type studies
9 and design for the district, geo-spatial analysis.
10 MR. SHAPIRO: I'm told we need to switch the
11 video feed over to our side.
12 Thank you.
13 Q. Did that work involve anything to do with
14 Addicks and Barker reservoirs?
15 A. It did.
16 Q. And what was that?
17 A. So I oversaw the hydraulic operations of the
18 reservoirs, so water management, as well as the
19 studies related to the reservoirs and hydraulic
20 design of the structures.
21 Q. Are there any other dams that the Galveston
22 District is responsible for?
23 A. Yes, sir.
24 Q. And what is that or are those?
25 A. It's the Wallisville Dam. It's a salinity

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1 control structure.
2 Q. And explain, please, to the Court what that
3 is.
4 A. So it's at the downstream end of the Trinity
5 River, and essentially, we dam the river when there's
6 low flows to prevent salinity from Galveston Bay
7 intruding on the water supply for the city of
8 Houston.
9 Q. Okay. How long did you serve as the Chief of
10 the Hydrology and Hydraulics Branch?
11 A. From 2013 to 2015, I think.
12 Q. And then what was your next role?
13 A. I became the District Chief of Project
14 Management Branch.
15 Q. Okay. And in that role, what were your
16 primary job responsibilities?
17 A. Overseeing development and execution of the
18 civil works program for the District.
19 Q. And did that involve anything to do with
20 Addicks and Barker?
21 A. The construction of the new outlet works, I
22 had responsibility for managing that project.
23 Q. Okay. And then what was your next job with
24 the Corps?
25 A. My current job is my next job, which is the

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1 Chief of Engineering Construction Division.

2 Q. Was that your role during Hurricane Harvey?
3 A. Yes, sir.
4 Q. And please explain to the Court what your
5 primary job responsibilities are in that role.
6 A. So I have a lot. So I oversee all of the
7 District's design of everything, all of the
8 construction, all of the technical analyses the
9 District does for everything that we do over the
10 whole 50,000 square miles or so.
11 Also I'm the Dam Safety Officer, so I'm
12 responsible for the Dam Safety Program, the Levy
13 Safety Officer, so I'm responsible for the Levy
14 Safety Program. So, certainly it still includes all
15 the water control and all the technical activities
16 related to the Addicks and Barker dams, as well as
17 navigation and ecosystem preservation and so on.
18 Q. So this case obviously deals with Addicks and
19 Barker reservoirs.
20 Can you tell the Court sort of what are
21 the teams that work on the -- those two reservoirs?
22 A. Right.
23 So the way that we're organized is
24 there's an Operations team that's actually out at the
25 projects, which you'll get to meet on Wednesday. And

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1 their day-to-day -- you know, you've got the park

2 rangers making sure the roads are open and things
3 like that. They also push the buttons on the
4 structure physically.
5 There's a Water Control Section Office.
6 Their job is doing forecasts and making decisions
7 about how do you actually implement the Water Control
8 Manual and what should be made at the gates and
9 things like that.
10 Then there is the other group, which is
11 the Dam Safety Program, and their job is to make sure
12 that all of the program for Dam Safety is permitted
13 and that we're doing the inspections that we need to
14 do, and that we're engaging what we need to do and
15 implementing interim risk reduction managers,
16 et cetera, along the Dam Safety Program.
17 There is actually kind of a fourth
18 program which is Construction, which is separate from
19 those other three and not really engaged in
20 Operations, but I'm involved in the Construction
21 Branch. I'm also responsible for the Construction
22 Branch, which is currently building the new
23 structures that you'll get a chance to see.
24 Q. And Mr. Thomas, did those teams that you just
25 mentioned, did they report up through you?

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1 A. So during an emergency, they all do.

2 During day-to-day operations, they all
3 do, except for the Operations team, which has a
4 separate chain of command.
5 Q. And to whom do you report?
6 A. Colonel Zetterstrom.
7 Q. Yesterday, you were asked several questions
8 about the purpose of Addicks and Barker reservoirs.
9 Based on your testimony, did you review
10 historic documents related to the reservoirs?
11 A. Yes, sir.
12 Q. And what did those historic documents
13 identify as the purpose of the reservoirs?
14 A. To manage flood risk for the city of Houston.
15 Q. How do the reservoirs accomplish that
16 purpose?
17 MR. EASTERBY: Your Honor, objection to the
18 extent that he's asking only about reservoirs, as
19 opposed to the project.
20 MR. SHAPIRO: I actually mean the project.
21 THE WITNESS: So the project does that by
22 detaining runoff and releasing it at a rate that's
23 slower than it otherwise would have been.
24 So, for example, if the big storm
25 happens and the inflows on the Bayou are a 150,000

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1 cfs, as it flows through the outlet structures, it

2 needs to be reduced greatly. Either it would be
3 totally contained and not released until it was safe
4 to do so downstream, or during that worse case event,
5 when we have surcharge releases at some much lower
6 rate than we do at the peak of the flood.
7 Q. BY MR. SHAPIRO: Do the Addicks and Barker
8 reservoirs always have water in them?
9 A. No, sir.
10 Q. Are they referred to as dry dams?
11 A. We do refer to them as dry dams. Generally
12 they're empty. Once they're empty, we leave the gate
13 setting at kind of a nominal rate for past normal
14 flows, and when it is raining, we'll close the gates
15 and pull water from that pipe.
16 Q. I want to look at the first exhibit. This
17 Defendant's Exhibit 734.
18 And Mr. Thomas, you can see that -- you
19 can see that on the screen.
20 Do you recognize what's depicted here?
21 A. Yes, sir.
22 Q. What is that?
23 A. So this is showing the watersheds in Harris
24 County.
25 Q. Are you familiar with the watersheds in

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1 Harris County?
2 A. Yes, sir.
3 Q. And does this appear to be an accurate
4 representation of those watersheds?
5 A. Yes, sir.
6 MR. SHAPIRO: I move the admission of
7 Defendant's Exhibit 734.
8 MR. EASTERBY: Is it just that one page,
9 Mr. Shapiro?
10 MR. SHAPIRO: It is.
11 MR. EASTERBY: No objection.
13 (Defendant's Exhibit 734 received in
14 evidence.)
15 Q. BY MR. SHAPIRO: Just so we have a clear
16 record, what is a watershed?
17 A. A watershed in its simplest form is just a
18 group of land that flows to a common outlet.
19 Q. Great.
20 And using Defendant's Exhibit 734, could
21 you please explain the watersheds that are directly
22 relevant to the project?
23 A. Right.
24 So we'll start with the Addicks
25 reservoirs here, and that's flowing towards the

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1 Addicks dam, so this is the Addicks watershed, sorry,

2 the whole blue area here.
3 You have the Barker reservoir here,
4 which is the darker blue area and the Barker
5 watershed. Sorry. It is labeled as reservoir up
6 there, but it is watershed.
7 And this is the Cypress Creek watershed
8 up here that we talked about that can sometimes flow
9 into the Addicks watershed.
10 Q. Okay. Is that labeled Cypress Creek?
11 A. It is. The label is over here.
12 Q. Okay.
13 A. They're kind of barely connected to that
14 section there.
15 Q. But you're referring to the yellow area
16 behind Addicks and Barker reservoir -- or watershed?
17 A. I am, yes, sir. It's this kind of
18 yellowish-orange area here, right upstream of
19 Addicks.
20 And Addicks and Barker watersheds both
21 flow into the lower Buffalo Bayou watershed, which is
22 here and looks kind of greenish, maybe, and then flow
23 down ultimately to the ship channel. And you've got
24 the White Oak watershed just to the north in a little
25 darker blue there, and the Brays Bayou watershed,

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1 just to the south of the lower Buffalo Bayou

2 watershed.
3 Q. There's been some prior discussion about the
4 ship channel. Can you point out and identify where
5 the ship channel is please?
6 A. The ship channel runs from the bay up into
7 here, and I always forget exactly where the turning
8 base is, somewhere around here.
9 Q. Okay. And when you say "here," can you
10 describe where you're pointing?
11 A. Let's see. South and east of where it says
12 Carpenter's Bayou, in that area.
13 Q. Thank you.
14 You were asked several questions
15 yesterday about the 1940 Definite Report. Do you
16 recall talking about that document?
17 A. Yes, sir.
18 Q. We're going to have a couple of additional
19 questions about that.
20 This is Joint Exhibit 5 already admitted
21 into evidence. As we're pulling up this document,
22 can you please explain what this Joint exhibit --
23 excuse me -- what this document actually tells us?
24 A. So this is the Definite Project Report, and
25 it lays out the design and -- of the recommended plan

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1 design, so it includes the project features, some

2 information about the water levels, some information
3 about cost, that kind of stuff.
4 Q. So this is -- am I correct that this is a
5 document that is prepared pre-construction?
6 A. It is.
7 Q. And were there -- I think you've already
8 provided this testimony, but were there changes that
9 were made after development of this report during the
10 construction?
11 A. Yes, sir.
12 Q. Okay. You discussed yesterday the gating of
13 the conduits at the two dams. As originally designed
14 in this 1940 report, did the dams have gates on the
15 conduits?
16 A. Only the center conduit, one of five
17 conduits.
18 Q. So did the conduits exist in the original
19 plan?
20 A. They did.
21 Q. And were those -- were four of the conduits
22 ungated?
23 A. Yes, sir.
24 Q. If there were no gates on the conduits -- on
25 four of the conduits on each dam in their original

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1 design, how would that design be expected to help

2 control floodwater going downstream?
3 A. So the conduits can only release a certain
4 amount of water no matter how much water is in the
5 reservoir. With no gates, it will only release 7- or
6 8,000 cfs total per reservoir, so the inflows in this
7 report talk about 40- or 50,000 cfs as the peak
8 inflows, and so they are much lower than the peak
9 inflows.
10 Q. The outflows from the conduit -- the ungated
11 conduits were less than the possible inflows into the
12 reservoirs?
13 A. Yes, sir.
14 Q. Okay. Were gates added at a later time after
15 publication of this report?
16 A. They were.
17 Q. And can you please describe why those gates
18 were added for us?
19 A. So my understanding is that the gates were
20 added because downstream development was moving into
21 the areas that were being flooded, and there was a
22 flooding problem that was developing even with having
23 the conduits in place without the gates. So even
24 though we built one of the dams, they were still
25 having flooding problems downstream, and they

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1 expected it to get worse.

2 Q. And please describe when those gates were
3 added to the remaining four conduits on each of the
4 two dams.
5 A. So after Barker was constructed, I think
6 around '45 to '48, two extra conduits were gated, so
7 during Addicks construction they added two, and after
8 Barker construction they added two, so by about 1948,
9 you had three of five conduits gated.
10 The remaining two conduits remained
11 ungated until around 1961 or '62. We saw some of the
12 reports relating to those yesterday, I think.
13 And then by 1962, we gated the remaining
14 two conduits on both structures, so by 1962 all
15 conduits were gated, so all releases were controlled.
16 THE COURT: What was that date again,
17 Mr. Thomas?
18 THE WITNESS: 1962, sir.
19 Q. BY MR. SHAPIRO: If you turn to, please, page
20 1 of this document, Bates ending 502. Under
21 paragraph 1, it provides some discussion there of
22 some Congressional authorization. What do you
23 understand those to be?
24 A. I understand that those were the
25 authorizations for constructing the original project.

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1 Q. If you turn now, please, to the Bates ending

2 527.
4 Q. You were asked several questions yesterday,
5 and perhaps today, about land acquisition efforts
6 early in this project. Under paragraph 54, does that
7 discuss the land acquisition efforts upstream of the
8 reservoirs at least as proposed?
9 A. Yes, sir.
10 Q. Okay. And if you could please describe
11 what -- what those land acquisition efforts were in
12 this -- this proposed -- or in this Definite Report.
13 A. So this report defined the 1935 storm as the
14 land acquisition quota and proposed to acquire
15 additional three feet of freeboard above that 1935
16 pool level.
17 Q. I take it based on your earlier discussion,
18 that you are familiar with the 1935 storm?
19 A. Yes, sir.
20 Q. And what, if any, significance is there to
21 that 1935 storm?
22 A. So it was the worst flood to hit the
23 watersheds at the time, ever.
24 Q. That plan that is depicted here, to determine
25 the worst storm to ever hit the watershed, and then

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1 add on some additional, was that the Corps' typical

2 approach in terms of land acquisition back in 1940
3 for projects like this?
4 A. It seems to be, sir.
5 Q. Is that -- is that 1935 storm, is that
6 sometimes referred to as the land acquisition flood?
7 A. It is.
8 Q. And you may have referred to this yesterday,
9 but does the character of the land upstream of the
10 proposed reservoirs factor into determination of that
11 land acquisition flood?
12 A. Yes, sir.
13 Q. And how so?
14 A. Depending on the type of property upstream,
15 certainly our current regulations, and even the
16 regulations at the time, will have you set a
17 different land acquisition flood. So, for example,
18 if it's all farmland, you might have a lower land
19 acquisition flood. If it's all, you know, people's
20 homes and businesses, then you would have a higher
21 land acquisition flood.
22 Q. And so how did that factor into the land
23 acquisition flood determination for the project here?
24 A. So, because it was farmland and ranch land at
25 the time, they took the 1935 one, plus three feet,

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1 which is still a very big storm for the watershed,

2 but they didn't pick the highest possible water level
3 that they could have picked.
4 Q. And we'll talk about this in a few minutes,
5 but when you're referring to farmlands and vacant
6 property, describe where that is located. In 1940, I
7 mean.
8 A. So, in 1940, my understanding is that Barker
9 was almost exclusively ranch land and rice farms.
10 Q. I'm sorry. Are you talking about the areas
11 upstream of Barker?
12 A. Upstream, yes, sir. I'm sorry.
13 So upstream areas, and within the areas
14 upstream of the reservoir, it was almost exclusively
15 farming or ranch land.
16 And then Addicks, I understand that
17 upstream there were a few homes, maybe one or two
18 businesses, but mostly it was also farming and ranch
19 land upstream of the reservoirs.
21 MR. SHAPIRO: Yes.
22 THE COURT: At some point when you reach a
23 natural break, we ought to take a luncheon recess.
25 Maybe one or two additional questions.

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1 Q. When this refers to purchasing an elevation

2 three feet above the pools that were created by the
3 1935 storm, what does that mean exactly?
4 MR. EASTERBY: Your Honor, quick objection.
5 Just making sure that the witness is
6 only talking about what's stated in the document, as
7 I'm sure he has no personal knowledge as to events
8 back in 1940.
9 THE COURT: Mr. Easterby, we're -- the
10 question basically asks for the witness'
11 understanding. That might be derived from this
12 document or others.
13 So Mr. Thomas may answer.
15 THE WITNESS: So can you say it one more
16 time?
17 Q. BY MR. SHAPIRO: Yes.
18 This document in paragraph 54 talks
19 about the plan to purchase three feet above the 1935
20 storm. What does that mean to you?
21 A. So that's three vertical feet, so it's, you
22 know, where you have a very flat slope of maybe 1 in
23 1,000 or 1 in 5,000. That could be 3,000 or 15,000
24 horizontal feet of additional land outside of that
25 initial boundary.

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2 THE COURT: Mr. Shapiro, are you ready for a
3 break?
5 THE COURT: Mr. Easterby, is that
6 satisfactory?
7 MR. EASTERBY: Yes, your Honor, of course.
8 THE COURT: Would you welcome that,
9 Mr. Thomas?
10 THE WITNESS: Yes, sir.
11 THE COURT: All right.
12 We are in recess.
13 LAW CLERK: All rise.
14 Court is now in recess.
15 (Recess: 12:05 p.m. - 1:13 p.m.)
17 Mr. Shapiro, before we begin, may we
18 take a moment to talk briefly -- you may take the
19 podium, that's not a problem -- about the
20 administrative arrangements for the site visit
21 tomorrow.
23 THE COURT: There will be three of us, the
24 court reporter, the clerk and myself, from this side
25 of the bench. And we've had a request from a news

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1 reporter to be present, and we accepted or

2 acknowledged that request and approved it. This is a
3 public session and we will be taking testimony.
4 In addition, the Marshal's Service has
5 indicated that they might want two deputy marshals.
6 They would not necessarily be in the van; they might
7 follow in their own official vehicle. I don't know
8 if that affects any of the arrangements counsel have
9 made.
10 MR. CHAREST: I don't think it does.
11 MR. SHAPIRO: I don't think it does either.
12 I don't know if there's a seat for the reporter on
13 the bus, but in terms of being around when we're on
14 the ground, that doesn't bother us at all.
15 THE COURT: The reporter might ride with the
16 marshals, I don't know. We will not be having
17 conversations about the case.
18 Is it a bus or a van?
19 MR. CHAREST: It is a bus, sir.
20 THE COURT: On the bus or van anyway, so
21 there really shouldn't be any problem there.
22 What I propose -- what do you propose
23 for a time of departure from in front of the
24 courthouse?
25 MR. SHAPIRO: That actually is a little more

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1 complicated question, your Honor. We've just had a

2 conversation during the break about the timing. It
3 looks as if, based on, as I understand it, sort of
4 the present forecast that we might get some rain
5 tomorrow afternoon, so we've been thinking internally
6 about what our best options are.
7 One possible proposal would be to do the
8 site visit in the morning. If we don't care about
9 the rain, we can do it in the afternoon, but at least
10 according to the resident meteorologist who is here
11 about to testify, it does look like we might have
12 some rain tomorrow.
13 THE COURT: Do you have a recommendation?
14 MR. CHAREST: We prefer it stay on schedule,
15 sir, because our expert who has been listening, will
16 not be here in the afternoon, so it puts us out of
17 sorts on that point, sir.
18 THE COURT: I don't know about raincoats, but
19 we obviously have boots and umbrellas and we'll try
20 to cope.
21 MR. SHAPIRO: Yes, sir. That does present --
22 rain could present one potential problem, which is
23 this: That there, as I understand it, is some
24 construction that is currently ongoing at the Addicks
25 outlet structure. More so than usual. If it is a

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1 significant amount of rain, that could make that area

2 quite muddy. That might necessitate a switch in the
3 agenda. Rather than seeing, for example, the Addicks
4 outlet structure, I understand it might be easier to
5 see the Barker outlet structure. I don't think that
6 will have any impact on the Corps.
7 You'll still be able to hopefully see at
8 least one of the outlet structures, and the auxiliary
9 spillway at Addicks is easily accessible.
10 THE COURT: Are counsel for both sides
11 satisfied, that that should satisfy the Corps?
12 MR. CHAREST: We will discuss, and I'm sure
13 it will be fine. It's which one or the other, sir,
14 that's fine.
15 MR. SHAPIRO: Very good. Thank you.
16 THE COURT: Does that help?
17 MR. SHAPIRO: Yes.
18 THE COURT: We might take a moment after you
19 thought about this, and after we've gone through the
20 afternoon, we might take a moment or two toward the
21 end of the day to talk about this again, because
22 we'll have a better word from the US Marshal's
23 office.
24 MR. SHAPIRO: Very good.
25 MR. CHAREST: If I might, sir, on the issue

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1 of the meteorologist, he is under Subpoena and can't

2 be here tomorrow, so what we worked out with the DOJ,
3 with the Court's permission, is that after the
4 afternoon break, we stop Mr. Thomas, bring on
5 Mr. Lindner, get him done for the day, up and down,
6 and then he can leave, and resume with Mr. Thomas as
7 appropriate.
8 THE COURT: Whose witness is the
9 meteorologist?
10 MR. VUJASINOVIC: Your Honor, I'll be taking
11 it.
12 THE COURT: Mr. Vujasinovic?
13 MR. VUJASINOVIC: Yes, sir.
14 THE COURT: All right. Thank you.
15 Mr. Shapiro, you may proceed.
16 Good afternoon, Mr. Thomas.
17 If you'll return to your customary
18 place, that would be helpful.
19 CROSS-EXAMINATION (CONT'D)
20 BY MR. SHAPIRO:
21 Q. Good afternoon, Mr. Thomas.
22 Now, Mr. Thomas, I want to turn back to
23 the Definite Report, which is Joint Exhibit 5, which
24 should be open in front of you.
25 If you could turn, please, to the Bates

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1 number ending in 526, you should see at that page,

2 table 3, pool elevations. Do you see that?
3 A. Yes, sir.
4 Q. Can you please describe what's written there?
5 A. So the left column shows both Addicks and
6 Barker reservoirs, and each of the other columns
7 shows the water level for different events. So the
8 1935 storm, the 1935 storm plus 50 percent, the
9 design storm, and the design storm, all conduits
10 blocked.
11 Q. And then there are elevations given for each
12 of those?
13 A. All right. So each elevation is a reference
14 to mean sea level for Addicks for the 1935 storm, and
15 it's 101.4.
16 Q. You don't need to read them all, but they are
17 all on that table?
18 A. They are.
19 Q. Very good.
20 We're going to talk about that elevation
21 datum in a few minutes, but I want to talk first
22 about some terms that have been used in your prior
23 testimony.
24 So I think the easiest way to do that is
25 to take a look at what's been marked as PX707.

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1 And Mr. Thomas, do you recognize this

2 document?
3 A. Yes, sir.
4 Q. And what is this?
5 A. This is an engineering manual from March of
6 1965 titled Standard Project Flood Determination.
7 Q. And how are you familiar with this document?
8 A. I've read it.
9 Q. Is this a document prepared by the Army Corps
10 of Engineers?
11 A. Yes, sir.
13 Plaintiffs Exhibit 707.
14 MR. EASTERBY: No objection, your Honor.
17 evidence.)
18 Q. BY MR. SHAPIRO: This is titled Engineering
19 Manual and then there is a number. What is an
20 engineering manual?
21 A. It's a document that the Corps of Engineers
22 prepares to essentially lay out instructions for how
23 to do engineering calculations or tasks.
24 Q. And what does this engineering manual do?
25 A. This engineering manual talks about how to

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1 determine and calculate a standard project flood.

2 Q. Okay. Now this is, as you noted, this is
3 dated 1965. It's approximately 25 years after the
4 project was developed; correct?
5 A. Correct.
6 Q. And I want to talk about the term standard
7 project flood. Does this document include a
8 definition of that standard project flood?
9 A. I believe it does.
10 Q. If you turn, please, to the Bates ending in
11 497 under paragraph 1-03a.
12 A. Got it.
13 Q. What does it describe here, or how does it
14 define the standard project storm?
15 A. So I'll just read it. It says, "The standard
16 project storm estimate for a particular drainage area
17 and season of year in which snow melt is not a major
18 consideration, should represent the most severe
19 flood-producing rainfall depth, area, duration
20 relationship, and isohyetal..." i-s-o-h-y-e-t-a-l "of
21 any storm that is considered reasonably
22 characteristic of the region in which the drainage
23 basin is located."
24 And then there is more.
25 Q. And in plain English, what does that mean to

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1 you?
2 A. Essentially it means it's the worst storm
3 that you reasonably expect to occur during the life
4 of the project.
5 Q. Now, we --
6 THE COURT: Mr. Shapiro, I somewhat rarely
7 run into words that I've never seen before.
8 Isohyetal is one of them. May I ask, Mr. Thomas,
9 what that means to him?
11 THE WITNESS: Lines of constant rainfall, so
12 it will show a map, a specific contour map of
13 rainfall, sir. So it might have like a watershed,
14 for example, and it will have a little circle in the
15 middle and it says 12 inches of rainfall, and a
16 bigger circle that says 8 inches of rainfall.
17 THE COURT: So it's like a topographical map
18 except that rather than for measuring elevations,
19 it's measuring a rainfall event?
21 Q. BY MR. SHAPIRO: Now we were just looking at
22 Joint Exhibit 5, which is 1940 Definite Report, and
23 we looked at table 3. That language, standard
24 project flood, or SPF, that does not appear in that
25 table; is that correct?

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2 Q. And does it appear in the Definite Report?
3 A. No, sir.
4 Q. All right. Do you know why it doesn't
5 appear?
6 A. I don't think that the District was using it
7 at the time they created that report.
8 Q. And instead, what's listed in the Joint
9 Exhibit, at least in part, is the 1935 storm. Do you
10 have an understanding how, if at all, that 1935 storm
11 might be related to the current understanding of the
12 standard project flood?
13 A. Yes, sir.
14 Q. And what is that? What is your
15 understanding?
16 MR. EASTERBY: Your Honor, I don't believe
17 he's laid the foundation for how the witness knows,
18 connecting the dots between what would have been a
19 standard project flood back in 1940, so I object for
20 lack of foundation.
21 THE COURT: Well, he's asking about the
22 relationship. If the witness knows, I'll allow
23 Mr. Thomas to answer.
24 Q. BY MR. SHAPIRO: Well, first of all, was
25 "standard project flood" a term of art as far as you

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1 know that was used back in the 1940s?

2 THE COURT: Mr. Shapiro, may I interrupt?
3 You referred to standard project flood,
4 and that's what I wrote down. The exhibit uses the
5 term standard project storm, and I just don't know
6 which is which.
7 MR. SHAPIRO: Thank you, your Honor. I
8 should clarify that.
9 Q. Do you understand the difference between
10 standard project storm and standard project flood?
11 A. Yes, sir.
12 Q. Okay. And can you please describe that?
13 A. So the standard project flood is the flood
14 that results from routing the standard project storm
15 into the reservoir.
16 Q. And did you look at the bottom of that same
17 page in PX707? Does that describe exactly what you
18 just said?
19 A. Yes.
20 Q. Okay. To your knowledge, was that term,
21 standard project flood, used by the Corps back in the
22 1940s?
23 A. No, sir.
24 Q. My original question was, the 1935 storm is
25 listed in the 1940 Definite Report. Do you know how

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1 that storm relates to the current understanding of

2 standard project flood?
3 A. Yes, sir.
4 Q. And can you describe your understanding,
5 please?
6 A. So my understanding would be based on the
7 next manual, which was in 1955, that includes a
8 comparison and elevation for the 1955 standard
9 project flood. So I base that elevation, compared to
10 the elevations in the 1940 report, to kind of get a
11 feel for how close they were.
12 Q. And how close was the 1935 storm to the
13 eventual standard project flood at that time?
14 A. They were pretty similar. Within a foot or
15 so.
16 Q. You were asked several questions by
17 Plaintiffs' counsel about what is called the spillway
18 design flood or SDF. Do you recall those questions?
19 A. Yes, sir.
20 Q. And what is the SDF?
21 A. So the spillway design flood is exactly what
22 it sounds like. It is a type of flood, hypothetical
23 flood, used to design a spillway. It's based on the
24 probable maximum flood in this case, which I think we
25 talked about before, but it's the flood that we think

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1 results from the worst possible conditions that we

2 think could ever happen. It's the theoretical limit
3 of flooding, essentially, for a design project.
4 So we use it to design, in the case of a
5 high-risk dam, when life and safety is at risk. We
6 need to pass or safely contain that flood so that we
7 prevent a failure during a large flood like that.
8 Q. Now the term standard -- or spillway design
9 flood or SDF also does not appear in this 1940
10 Definite Report; is that correct?
11 A. It does not.
12 Q. And do you have an understanding of why?
13 A. I believe they weren't using it at the time
14 as well.
15 Q. Did the term "spillway design flood" or SDF
16 come into common usage after publication of the 1940
17 Definite Report?
18 A. I believe so.
19 Q. There is, however, something referred to as
20 the design storm in the 1940 report. Are you
21 familiar with that?
22 A. Yes, sir.
23 Q. And do you have an understanding of how, if
24 at all, that design storm relates to the current
25 understanding of the spillway design flood?

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1 A. So I think that at the time, they used it for

2 the same purpose that we just stated for the current
3 spillway design flood, so it seems to meet the same
4 definition at the time. Although there were no
5 spillways, there were no emergency spillways at the
6 time, so it obviously wasn't used at that time, other
7 than the primary outlet works.
8 Q. And if we look back at table 3 in the
9 Definite Report, the design storm looks to be quite
10 larger than the 1935 storm; is that accurate?
11 A. It is.
12 Q. And is that typical for the Corps to design
13 dams to survive water levels higher than the levels
14 that would be created by the worst storm of record
15 within the watershed?
16 A. It is.
17 Q. Is it typical for the Corps to design dams to
18 survive storms larger than the storms used to set the
19 land acquisition lines behind a reservoir?
20 A. It is.
21 Q. If we look at the JX5 at paragraph 54, and
22 this is at page ending in Bates number 527.
23 A. Got it.
24 Q. What does this report say about the
25 likelihood of a 1935 storm occurring? I think it's

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1 the sentence "the maximum storm of record."

2 A. Yeah, I found it.
3 So it says that it is expected that
4 storms of similar intensities will occur several
5 times during the lives of these structures.
6 Q. And what does it say about the likelihood of
7 the design storm occurring? That's the sentence
8 before it.
9 A. It says, "The occurrence of such a storm in
10 the basin cannot be expected to occur more than once
11 in the lives of these structures."
12 Q. So what does that mean, one should expect it
13 at least once?
14 A. That's not what it says. Generally it means
15 that it could happen, but they don't think something
16 worse would happen.
17 Q. You testified yesterday about the portions of
18 the project that were not constructed after
19 publication of this 1940 report. Do you recall that?
20 A. Yes, sir.
21 Q. And if we could just briefly just pull up on
22 the screen, I don't think you need to look at it,
23 JX7. This was a document that was introduced
24 yesterday, the Definite Project Report.
25 What is this document?

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1 A. So these are the drawings associated with the

2 Definite Project Report.
3 Q. And if we turn, please, to the Bates ending
4 165, you were shown this document before.
5 Can you please just briefly describe
6 what the original design of this was? And you can
7 use the pointer.
8 A. So originally it included the twin
9 reservoirs, so Addicks dam reservoir here, Barker dam
10 reservoir here, which we talked about. It included
11 the Cypress Creek levee that would have prevented
12 overflow from the Cypress watershed into the Addicks
13 watershed. It included this downstream channel
14 rectification.
15 Q. And is that downstream of the two reservoirs?
16 A. It is, yes, sir.
17 Q. On the Buffalo Bayou?
18 A. Yes, sir.
19 From the outlet works on each,
20 ultimating ending in the Bayou. There is a little
21 diversion dam here for a levee that wasn't built.
22 Q. At the end of the portion that would be
23 rectified on Buffalo Bayou?
24 A. Yes, sir.
25 Then there's the south canal that was

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1 going to take the flood waters from the reservoir to

2 Galveston Bay, also not constructed.
3 And then there's these features
4 associated with White Oak Bayou, which included a
5 stability channel, a dam and reservoir for White Oak.
6 And then a north canal was to shift
7 water over to the San Jacinto River.
8 Q. Do you have an understanding of why those
9 other project elements were not constructed?
10 A. I think it was a combination of increased
11 development and available funding.
12 Q. Was there something else going on in the
13 world around the time that the construction was
14 taking place?
15 A. There was. So these were built during World
16 War II, and some of the only civil works projects
17 undertaken at that time, so there was very limited
18 civil works funding in the mid -- early to mid '40s.
19 THE COURT: Mr. Shapiro, may I interrupt and
20 ask Mr. Thomas if he would identify the Houston ship
21 channel and the turning? I think I know where they
22 are, but...
23 THE WITNESS: So the ship channel goes all
24 the way up here, and I always forget exactly where
25 the turning basin stops at, where the turning basin

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1 is on this map.
2 Q. BY MR. SHAPIRO: It looks, Mr. Thomas, like
3 you're pointing to the east of the polygon that's
4 labeled Houston.
5 A. Right.
7 THE WITNESS: Oh, wait, there is it is. It's
8 labeled. It is a little bit further. Right around
9 there is where it's labeled at. If you really look
10 in there, you can see it.
11 Q. BY MR. SHAPIRO: After the various components
12 were not constructed, did the Army Corps of Engineers
13 acquire any additional lands associated with the
14 project?
15 A. Yes, sir.
16 Q. And why did the Corps do that?
17 A. Because the Cypress Creek levee wasn't built,
18 they acquired additional lands to accommodate the
19 overflow from Cypress Creek.
20 Q. And do you know how much additional lands the
21 Corps acquired?
22 A. It was three or four feet. I forget the
23 exact number.
24 Q. Again, when you say three or four feet, do
25 you mean vertical feet?

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1 A. I do mean vertical feet.

2 Q. So as you described earlier, it would be much
3 more in terms of a horizontal distance?
4 A. Yes, sir.
5 Q. And do you know when the Corps bought that
6 additional land?
7 A. I think it was late '40s, early '50s.
8 Q. You discussed some proposed channel
9 rectification on the Buffalo Bayou downstream of the
10 reservoirs?
11 A. Yes, sir.
12 Q. Was that undertaken as originally planned?
13 A. Yes, sir.
14 Q. And what about the south canal? Was that
15 eventually constructed?
16 A. It was not.
17 Q. And do you know why that was?
18 A. What I've read indicates that the development
19 and lack of funding prevented its construction.
20 Q. I want to look now at another document. This
21 will be Defendant’s Exhibit 821. I don't think we
22 need to get the document out. We'll just look at it
23 on the screen.
24 THE COURT: What is the number again,
25 Mr. Shapiro?

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1 MR. SHAPIRO: Defendant's Exhibit 821.

3 Q. BY MR. SHAPIRO: Mr. Thomas, do you recognize
4 what is marked as Defendants Exhibit 821?
5 A. Yes, sir.
6 Q. And what is depicted here?
7 A. So this shows an aerial of Houston. You can
8 see that the Addicks and Barker reservoirs are there.
9 It also has the downstream test properties and the
10 upstream test properties, and the approximate
11 government-owned land shown.
12 MR. SHAPIRO: Your Honor, I move the
13 admission of Defendant’s Exhibit 821.
16 (Defendant’s Exhibit 821 was received in
17 evidence.)
18 Q. BY MR. SHAPIRO: If we now look at
19 Defendant’s Exhibit 823. We can just look at that on
20 the screen as well. Do you recognize this document?
21 A. Yes, sir.
22 Q. And what is depicted here?
23 A. So this is the Barker reservoir. It's
24 essentially a zoomed-in version of the previous map.
25 The upstream test properties are labeled, and the

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1 downstream properties are shown and not labeled.

3 Defendant’s Exhibit 823.
5 THE COURT: Mr. Thomas, when were these
6 photos taken and documents prepared?
7 THE WITNESS: So I believe that the image is
8 the Google Earth image, and I'm not sure about the
9 actual date of when it was prepared.
10 THE COURT: Can you give an approximate date,
11 please?
12 THE WITNESS: In the last year, I believe.
14 Admitted.
16 evidence.)
17 Q. BY MR. SHAPIRO: If we could look at
18 Defendant’s Exhibit --
19 MR. EASTERBY: I'm sorry, your Honor.
20 May I ask a clarifying question? Are
21 you asking what's the date of the map image or when
22 the exhibit was prepared?
23 THE COURT: I actually was more interested in
24 when the map -- if it's a Google Earth image, I was
25 more interested in when the image was taken, or

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1 depicted I guess is a better word for it.

4 Q. BY MR. SHAPIRO: If we zoom in, I think we
5 can see some information there. Do you see a date
6 there that might answer that question?
7 A. Right, so it says January 31st, 2019, for the
8 entry.
9 MR. EASTERBY: And is that the date that the
10 map image was created, meaning this document or the
11 underlying Google Earth image?
12 Q. BY MR. SHAPIRO: Do you know the answer to
13 that?
14 A. I don't know the answer for sure.
16 Q. BY MR. SHAPIRO: If we could turn, please, to
17 Defendant’s Exhibit 819. We can look at this one.
18 This will be the last one.
19 Do you recognize this document?
20 A. Yes, sir.
21 Q. What is this?
22 A. Same as the previous, except this one is
23 zoomed in on the Addicks reservoir area.
24 Q. And does that show the approximate location
25 of the trial properties?

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1 A. It does.
2 Q. If we could zoom in on the legend there,
3 please.
4 Does that have that same date, January
5 31st, 2019, for the Bates label?
6 A. Yes.
7 MR. SHAPIRO: I move the admission of Defense
8 Exhibit 819.
9 MR. EASTERBY: Your Honor, if I may be
10 permitted very brief voir dire as to this. I'm just
11 curious to know who actually created this map image.
12 THE COURT: Why don't you save that for
13 cross-examination, Mr. Easterby.
15 THE COURT: DX819 is admitted.
18 evidence.)
19 Q. BY MR. SHAPIRO: I want to turn to the next
20 document we'll look at, Defendant’s Exhibit 25. Do
21 you recognize this document, Mr. Thomas?
22 A. Yes, sir.
23 THE COURT: Give us a moment.
25 THE COURT: Yes, go ahead, please.

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1 Q. BY MR. SHAPIRO: Do you recognize this

2 document?
3 A. Yes, sir.
4 Q. What is this?
5 A. This is the Buffalo Bayou Watershed Reservoir
6 Regulation Manual for Addicks and Barker Reservoirs
7 dated August 1955.
8 Q. And I think we looked at the current
9 regulation manual for the project; is that correct?
10 A. Yes, sir.
11 Q. And is this an earlier version of that?
12 A. It is.
13 Q. Is this a document prepared by the Corps?
14 A. Yes, sir.
20 evidence.)
21 Q. BY MR. SHAPIRO: If you could turn, please,
22 to the Bates ending in 640 and paragraph 1-06.
24 Q. It should be labeled "precipitation."
25 A. Yes, sir.

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1 Q. This is talking about the annual

2 precipitation in Buffalo Bayou. Do you see that?
3 A. Yes, sir.
4 Q. Do you have an understanding of what this
5 document is talking about when it mentions the
6 Buffalo Bayou watershed?
7 A. I think what they're talking about here is
8 the overall watershed, including the Addicks and
9 Barker watersheds and lower Buffalo Bayou watershed.
10 Q. And what does it say about the mean annual
11 precipitation at that time in 1955?
12 A. It says it's about 45.2 inches.
13 Q. And just while we're here, how does that
14 compare with the rainfall that fell during Hurricane
15 Harvey?
16 A. It's about 10 inches more on average.
17 Q. About 80 percent?
18 A. About 80 percent.
20 671.
22 Q. You should see table number 7.
23 Do you see that?
24 A. Yes, sir.
25 Q. And what kind of information is included

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1 here?
2 A. So this is the information for both
3 reservoirs, Addicks on the left, Barker on the right.
4 You'll see tables like this a couple of times.
5 It talks about the length of the dam,
6 height of the dam, gives elevations for key water
7 surface elevations, information about conduits.
8 Q. And just before we go on, I want to tackle
9 the vertical datum question.
10 There's been some reference of that,
11 that the elevation vertical datum may have changed
12 over time; is that correct?
13 A. Yes, sir.
14 Q. And do you have an understanding of how those
15 elevation estimates are measured?
16 A. Yes, sir.
17 Q. Who establishes the vertical datums?
18 A. In terms of the national datums, that's
19 established by the NGS or the National Geodetic
20 Survey.
21 Q. And why have those vertical datums changed
22 over time?
23 A. So the national datums change as we learn
24 better ways to make measurements, essentially.
25 Q. And so that fact that the vertical datum has

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1 changed over time and is different throughout these

2 reports, does that make it difficult to compare
3 tables like this among the different Corps reports?
4 A. It does, especially when you include
5 subsidence as well.
6 Q. So while we're here, what does this table
7 show in 1955 in terms of the government-owned land
8 elevations at the two reservoirs?
9 A. For Addicks, it shows 108 feet referenced to
10 mean sea level, and for Barker it shows a 98.3 feet
11 referenced to mean sea level.
12 Q. How did that compare at that time to the
13 standard project floods?
14 A. At this point it is larger than the standard
15 project flood, so it's four feet larger in Addicks,
16 and it's a foot and some change larger in the Barker.
17 Q. So fair to say, then, at this time, the Corps
18 owned more than sufficient property upstream of the
19 reservoirs to accommodate the standard project flood
20 maximum pool?
21 A. Yes, sir.
22 Q. So just to put that in sort of plain English,
23 at this time did the Corps own more than enough land
24 upstream of the reservoirs to accommodate the most
25 severe storm considered reasonably characteristic of

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1 the region?
2 A. Yes.
3 Q. I want to describe the dams that the Corps
4 actually constructed, and to do that, I want to look
5 at a later report, so we're going to go out of
6 chronological order here for this one purpose, and
7 we'll look at the 2009 master plan, JX91. This
8 document has already been admitted.
9 A. Okay.
10 Q. If you could turn please to the Bates ending
11 054.
13 Q. There's been some previous discussion. I
14 think I asked you about the character of the
15 properties in the 1940s. Do you recall those
16 questions?
17 A. Yes, sir.
18 Q. And does this page, the Bates ending 054,
19 does that also describe sort of the character of the
20 properties in the 1940s?
21 A. It does.
22 Q. And what does it describe in terms of Barker
23 in the second full paragraph? I mean the lands
24 upstream of Barker.
25 A. Right.

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1 So it talks about the property

2 unoccupied and unimproved until the late 1870s, and
3 then starting in the 1870s through the 1880s, cattle
4 ranching was the most common activity. And then it
5 notes there was a railroad by 1877, and then in the
6 late 1890s, there was a large shift to farming,
7 ranching, farm-ranching to rice farming. But by
8 1905, there was a shift back to some ranching.
9 Q. And at the time of the Corps's acquisition,
10 what was the most common activity?
11 A. Ranching.
12 Q. And what about for Addicks in the next
13 paragraph?
14 A. So it says that there were some settlements
15 as early as the 1850s in Bear Creek, between the '20s
16 and '40s. There were 40 separate residences located
17 north of South Mayde Creek, along the side of Bear
18 and Langham Creek.
19 Q. And I think you mentioned some structures or
20 residents that might have existed in the 1940 area.
21 Were those the structures you were thinking about?
22 A. Yes, sir.
23 Q. In the second paragraph from the end, does it
24 provide a completion date for construction of the two
25 dams?

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1 A. It does.
2 Q. And what are those?
3 A. So for Barker, it's completed in February of
4 1945. For Addicks, it's completed in December 1948.
5 Q. And the information there about the size of
6 the dam, was that accurate at least as of the time
7 this document was prepared?
8 A. Yes, sir.
9 Q. All right. I want to talk now about another
10 topic that came up in your earlier discussion with
11 Plaintiffs' counsel, and that's modifications that
12 the Corps might have made to the dam structures after
13 construction; okay?
14 A. (Witness nods.)
15 Q. Since the reservoirs were constructed, has
16 the Corps made physical modifications to the dams?
17 A. We have.
18 Q. And what modifications has the Corps
19 undertaken?
20 A. So there was a group of modifications
21 associated with the gating of the conduits. There's
22 a group of modifications associated with reducing
23 seepage through the embankments. There's the
24 modifications related to raising the main embankments
25 and armoring the spillways, and then there is a group

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1 of modifications relating to stabilizing the primary

2 outlet works, as well as replacing them.
3 Q. Okay. Let's talk about the conduits first.
4 You have already testified a little bit about the
5 gates, and you testified yesterday about the 1962
6 reservoir regulation manual. Was that prepared after
7 the conduits were gated?
8 A. It was. It's purpose was to come up with a
9 new set of regulations for a fully gated structure.
10 Q. And if we look at that -- this document is
11 already in evidence as JX16. I think we can just
12 look at it on the screen.
13 And we'll turn here to the page ending
14 in Bates 634.
16 Q. Are you okay?
17 A. Yeah.
18 Q. Did the Corps recalculate the standard
19 project flood for purposes of this analysis?
20 A. I'm not sure.
21 Q. In any event, can you look at the table 1
22 here?
23 This is a similar looking table to what
24 we already looked at in the '55 report.
25 A. Right.

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1 Q. At this point, after the conduits were gated,

2 did the United States own enough real estate upstream
3 of the two dams to accommodate the standard project
4 flood?
5 A. Yes, sir.
6 Q. How do you know that?
7 A. Comparing the elevations shown in this table
8 for government-owned land and standard project
9 floods.
10 Q. Is it fair to say, then, that adding the
11 gates to the conduits did not change the balance
12 between the government-owned land and the standard
13 project flood?
14 MR. EASTERBY: Objection, your Honor;
15 leading.
17 Q. BY MR. SHAPIRO: Did adding the conduits
18 change the balance between the government-owned land
19 being more than the standard project flood?
20 MR. EASTERBY: It's the same question except
21 for "fair to say."
22 THE COURT: Same reaction, sustained.
23 Q. BY MR. SHAPIRO: What was the relationship
24 between the government-owned land and the standard
25 project flood at this time?

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1 A. So at this time, the government-owned land

2 still exceeded the elevation of the standard project
3 flood, so there was a little over three feet of
4 freeboard between government land and standard
5 project flood at Addicks, and there was a little less
6 than a foot at Barker.
7 Q. Thank you.
8 You mentioned some other modifications
9 that the Corps undertook. Did those modifications
10 cause any additional flooding on Plaintiffs' -- on
11 the trial properties during the Hurricane Harvey
12 storm?
13 MR. EASTERBY: Objection; your Honor. Lack
14 of foundation as to whether this witness has done
15 some kind of detailed analysis as to the cause of
16 flooding for all of the 13 upstream test properties.
17 THE COURT: Just a moment. Let me think
18 about the question.
19 If you take the last day and a half of
20 testimony, we might have a predicate for the answer
21 to the question, but could you restate the question
22 again, Mr. Shapiro?
23 Q. BY MR. SHAPIRO: During Hurricane Harvey, a
24 pool formed behind the two dams?
25 A. It did.

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1 Q. Do you have a position or understanding how,

2 if at all, the work -- the other work that the Corps
3 had done over the years on the two dams, affected the
4 size of that pool?
5 A. I do.
6 Q. What is that understanding?
7 MR. EASTERBY: Your Honor, if he's offering
8 an opinion, I don't believe any foundation has been
9 laid for that, and he has not been tendered or
10 designated as an expert to offer such opinions.
11 THE COURT: Well, we're talking about
12 modifications after construction, and that has been
13 the subject in the last few minutes of Mr. Thomas'
14 testimony. I'll allow him to answer.
15 Q. BY MR. SHAPIRO: What is your understanding,
16 sir, about whether those modifications had any impact
17 on the size of the pool that was created during
18 Hurricane Harvey?
19 A. My understanding is they did not impact the
20 size of the pool.
21 Q. And how do you know that?
22 A. So some of the modifications we talked about
23 are the gates, but in this case, the reservoir was
24 empty when Harvey started, so any amount of holding
25 different water didn't impact the pool level.

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1 The other modifications relate to the

2 elevation of the embankments, and because the pool
3 level didn't exceed those elevations, we just
4 exceeded the end of the dam, it essentially flowed
5 the same way it would have without the structures
6 there or without the modifications that we made.
7 THE COURT: The Corps might have a question
8 or two about that answer, Mr. Thomas, after
9 Mr. Shapiro has finished his examination.
10 Q. BY MR. SHAPIRO: Did the pool, during
11 Hurricane Harvey, go over sort of the front of the
12 dam embankment?
13 A. It did not exceed the embankment crest
14 elevation or the spillway crest elevation.
15 Q. You were asked yesterday about a group of
16 documents that were labeled and admitted as
17 Plaintiffs' Exhibit 39. If we can pull that up on
18 the screen.
19 Mr. Thomas, this was a group of
20 documents, and if we turn to the page ending in 664.
22 Q. You were shown this document, an October 8th,
23 1974 memorandum. Do you recall talking about this?
24 A. Yes, sir.
25 Q. And in the body of this letter, it states

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1 that a "Study should be made with recommendations and

2 submitted to OCE detailing problems and recommended
3 solutions." This is just to put us in time here.
4 This is 1974. Do you recall that?
5 A. Yes, sir.
6 Q. Okay.
7 THE COURT: What Exhibit is this again,
8 Mr. Shapiro?
9 MR. SHAPIRO: Plaintiffs' Exhibit 39.
10 THE COURT: Yes.
11 Q. BY MR. SHAPIRO: It also says that the
12 alternative of no action should also be presented
13 with a discussion of likelihood of flooding to the
14 top of reservoir capacity, and it continues. Do you
15 see that?
16 A. Yes, sir.
17 Q. Do you know why a no action -- this was a
18 question you were asked by Plaintiffs' counsel, why a
19 no-action alternative would be considered?
20 A. Yes, sir.
21 Q. Why is that?
22 A. All of our processes require us to compare
23 anything we want to do against a no-action to
24 essentially verify everything that we do has value
25 for the government.

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1 Q. Are you familiar with the term NEPA?

2 A. Yes, sir.
3 Q. And do you know, or does that law require a
4 consideration of a no action alternative?
5 A. I believe it does.
6 Q. You were then asked, after you were shown
7 this, you were asked whether a study had been
8 prepared. Do you recall that question?
9 A. Yes, sir.
10 Q. And you were then shown the rest of this
11 document, and it was suggested to you that the
12 balance of the document was the report. Do you
13 recall that?
14 A. Yes, sir.
15 Q. If we -- now this letter is dated October
16 8th, 1974. If we could please turn now to the Bates
17 ending in 670.
19 Q. This is where your attention was directed.
20 This is dated June 1974. Do you think this is the
21 report that was prepared?
22 A. I would assume not.
23 Q. And why do you say that?
24 A. This appears to be a routine inspection that
25 we do, and the other was asking for a special study

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1 to evaluate the considerations and alternatives that

2 you could do to solve that problem.
3 Q. And because it's dated June 1974, would you
4 reach a conclusion that this was prepared before the
5 October letter?
6 A. That would make sense.
7 THE COURT: That was definitely a leading
8 question, Mr. Shapiro. If you would be very much
9 more careful in your questions, that would be
10 appreciated.
11 MR. SHAPIRO: Yes, your Honor.
12 Q. Yesterday you were asked several questions
13 about a 1977 hydrology report, so we're moving a
14 little bit further in time now to 1977; okay?
15 Do you recall those questions about that
16 report?
17 A. Yes, sir.
18 Q. We don't need to pull this out, but you were
19 shown Joint Exhibit 22, and do you recall stating
20 that it might have been superseded by another report?
21 A. Yes, sir.
22 Q. If we please pull out Joint Exhibit 23.
24 Q. Do you recognize this document?
25 A. Yes, sir.

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1 Q. What is this?
2 A. This is the 1977 hydrology report prepared by
3 the Galveston District of the Corps of Engineers.
4 Q. And what's the date?
5 A. August 1977.
6 Q. Sir, do you understand how, if at all, this
7 is related to the other hydrology report from 1977
8 that you were discussing yesterday?
9 A. So I'm assuming that this is the final
10 version, and the other version was some kind of a
11 draft or mistake.
12 MR. SHAPIRO: I move the admission of Joint
13 Exhibit 23.
14 MR. EASTERBY: Your Honor, based on the
15 witness' answer that he's assuming, I don't think the
16 foundation has been laid for that.
17 THE COURT: That objection is sustained.
18 We'll reserve for the moment on the
19 admissibility of JX23 until we have better
20 provenance.
21 Q. BY MR. SHAPIRO: Do you have any
22 understanding of whether the numbers in this report,
23 JX23, are used later by the Corps?
24 A. Right, I should have been more clear, sorry.
25 So these are the numbers that were

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1 presented in the 2012 Water Control Manual. These,

2 the numbers in this report, are the numbers that
3 you'll see in the 2012 Water Control Manual. So my
4 assumption is related to the other report. I'm
5 uncertain where the other report is coming from. I'm
6 certain where this report comes from.
7 Q. Okay. So can you just clarify what you mean?
8 A. So specifically, most importantly, probably,
9 is when you look at these hydrographs in the back
10 that we talked about, they don't have void on them.
11 They are not marked up. And you'll see that these
12 are the ones that are in the Water Control Manual.
13 Q. Now, when you say they don't have void on
14 them, what do you mean?
15 A. The other copy had void written on it.
16 Q. And what, if anything, does that indicate to
17 you?
18 A. It made me think that they were either a
19 draft or somebody made a mistake, but I don't really
20 know who wrote that on there or why they did that.
21 Q. To the best of your understanding, which is
22 the version of the 1977 hydrology report that the
23 Corps ended up using later on?
24 A. This one, JX023.
25 THE COURT: Mr. Easterby.

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1 MR. EASTERBY: Well, your Honor, I'm just

2 trying to understand if there is actually any
3 differences between the prior version that was
4 introduced into evidence, and this version on those
5 inflow hydrographs the witness is discussing.
6 THE COURT: The Court doesn't understand that
7 either, but on the other hand, JX23 is admitted.
10 evidence.)
11 Q. BY MR. SHAPIRO: Are there differences
12 between the hydrographs discussed in JX22 as compared
13 to the hydrographs discussed in JX23?
14 A. I think so.
15 Q. Plaintiffs' counsel yesterday said that the
16 1977 hydrology report changed things quite a bit.
17 Do you agree with that assessment?
18 A. Yes, sir.
19 Q. And why do you agree with that?
20 A. It increased the spillway design flood
21 dramatically.
22 Q. Why was -- why did the Corps prepare the 1977
23 hydrology report?
24 A. Essentially in response to a new criteria, a
25 bigger rainfall had been happening, so the Corps

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1 realized at the time that probably a rainfall larger

2 than the previous largest rainfall they were designed
3 for was possible.
5 522, under Purpose and Scope.
7 Q. Do you see that paragraph 1-02?
8 A. Yes, sir.
9 Q. What was the purpose of this report?
10 A. So it says, "This report presents a detailed
11 description and analysis of the general hydrology
12 necessary to determine the adequacy of the two dams
13 with respect to safety and functional reliability.
14 This restudy is deemed necessary as it is now
15 apparent that urbanization of the subject watersheds
16 will soon reach levels in excess of those considered
17 in the original design, and updated hydrologic
18 criteria prescribe more severe design standards than
19 those addressed in the original hydrologic
20 investigation."
21 Q. So what does this report actually do?
22 A. Essentially it creates those hydrographs in
23 the back for the standard project flood and the
24 spillway design flood.
25 Q. Is it fair to -- so does this report

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1 recalculate the -- I'm sorry -- does this report

2 recalculate the inflows associated with the spillway
3 design flood?
4 A. Yes, sir.
5 Q. And does this report recalculate the inflows
6 associated with the standard project flood?
7 A. Yes, sir.
8 Q. How does this report, JX23, reevaluate the
9 standard project flood and spillway design flood
10 storm?
11 A. So it starts by calculating the probable
12 maximum precipitation. It ends up somewhere around
13 43 or 44 inches, like we looked at yesterday. And
14 then it specifies the standard project storm is going
15 to be about half of that, so around 22 inches. So
16 related to the spillway design flood, essentially it
17 has the 22 inches of rainfall fall in the watershed.
18 It then routes that for five days of operations, and
19 then it has the PMP fall in the watershed, so the 44
20 inches, and then it routes that, it developed that
21 total info hydrograph that we looked at.
22 Q. There was some discussion earlier about the
23 PMP, or the probable maximum precipitation. Can you
24 describe what that term means?
25 A. Essentially it refers to the theoretical

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1 limit of rainfall in a region that we'll use for a

2 time.
3 Q. Is PMP a term of art in engineering circles?
4 A. Yes, sir.
5 Q. There was some discussion about probable
6 having a particular meaning. Does that have a
7 particular meaning in terms of PMP?
8 A. Right. So what it means is that it's
9 probably not capable of being exceeded. That's what
10 the probable in probable maximum precipitation means.
11 Q. The approach that you just described about
12 how the standard project flood and the spillway
13 design flood used the PMP in this report. How does
14 that compare with the approach used in the 1940
15 Definite Report?
16 A. So in 1940, although the percentage
17 relationship is pretty close, it's a little
18 different, so they used the 1935 storm, which was on
19 average of around 15 inches, and that was the storm
20 for land acquisition.
21 And then for the design flood at the
22 time, they used that 30-inch or so rainfall, but
23 there was no antecedent condition, meaning that there
24 was no pool before it started raining, which is a big
25 difference.

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1 So for 1977, you have a pool at the

2 beginning of the flood, and in the 1940s, you don't
3 have a pool, and in the 1970s, you have about 50
4 percent more rain in the PMP than you did in the
5 '40s.
6 Q. And why does that antecedent condition
7 matter?
8 A. It's taking up available storage.
9 Q. How does the hypothetical spillway design
10 flood that's calculated in this report compare to the
11 design storm that had been calculated in the 1940
12 report?
13 A. So the spillway design storm in here,
14 ultimately you're managing 60 inches of rainfall over
15 like 10 days or something, whereas in the original
16 report, you were managing 30 inches of rainfall, I
17 think, over three days.
18 Q. You mentioned before that the standard
19 project flood in this report is calculated at one
20 half of the PMP; is that correct?
21 A. Yes.
22 Q. And is that a different approach or was that
23 the same approach that had been used in the 1940
24 report?
25 A. So it is a different approach, but it did end

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1 up being a pretty similar relationship. In the

2 1940s, they used the worst storm that had happened in
3 the watershed, and it just happened to be about half
4 of what was in that storm ultimately.
5 Q. If we turn back to plate 10 of this document,
6 it should be the Bates, towards the end, the Bates
7 ending in 640.
9 Q. Can you please describe what we're seeing
10 here?
11 A. So this shows the inflow, so you've got the
12 total inflow mass curve, which is in thousands of
13 acre-feet on the right, so this is for the standard
14 project flood for Addicks.
15 Then you've got the discharge in
16 thousands of cubic feet per second, which is this
17 other line here, so it's all flooded against hours
18 from the beginning of the rainfall.
19 You also see accumulation of rain on the
20 top horizontal lines.
21 Q. Okay. And is there a similar graph for the
22 Barker reservoir at plate 11?
23 A. Yes, sir.
24 Q. Okay. And that's the standard project flood;
25 correct?

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1 A. It is.
2 Q. And what about the spillway design flood, if
3 you could turn, please, to the Bates ending 638.
5 Q. Can you describe what we're seeing here on
6 this plate?
7 A. Right, so it's the same amount of -- I'm
8 sorry.
9 It's the same format, so actually these
10 are all the same. It's just the amount of water, the
11 amount of rain, the amount of discharge, and the
12 accumulation is different. And maybe it's
13 interesting to point out that this isn't zero, this
14 is 96,000, what appears to be zero on here.
15 Q. And you're talking about the 96 that appears
16 on the far-right bottom corner?
17 A. Right.
18 Q. Okay. And does this show the inflow
19 hydrograph associated with --
20 A. I'm sorry, that's in hours. That is a zero
21 down there. My confusion.
22 Q. Does this show the inflow of hydrograph
23 associated with this spillway design flood?
24 A. It does.
25 Q. And could you just point that out, please?

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1 A. The inflow hydrograph is this curve here.

2 Q. When you say this curve, which one?
3 A. It is the spiky-looking curve.
4 Q. Is it labeled inflow hydrograph?
5 A. It is inflow hydrograph.
6 Q. And is there a similar curve that's included
7 for Barker reservoir?
8 A. There is.
9 Q. Is that at the page ending 639?
10 A. It is.
11 Q. Has the PMP been reevaluated by the Corps
12 since publication of JX23?
13 A. We're doing that now.
14 Q. Have the inflows for the standard project
15 flood or spillway design flood been recalculated
16 since publication of the JX23?
17 A. So you will still see these spillway design
18 floods in the Water Control Manual. There was a
19 recalculation in the 2013 Dam Safety Modification
20 Study that's very similar.
21 Q. So we just looked at the inflow hydrographs.
22 I want to look at a document that will look at the
23 pools associated with these new calculations. So
24 we're going to go a little bit out of chronological
25 order here, because I don't want to get caught up in

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1 elevation datums.
2 So if we look at the 2014 Emergency
3 Action Plan, this is JX118. This was already
4 admitted into evidence.
6 Q. And we'll turn in this document to the Bate
7 ending 885 -- excuse me -- 883.
9 Q. It should be appendix E-2.
10 A. What's the number again?
11 MR. SHAPIRO: May I approach, your Honor?
12 THE COURT: Yes.
13 THE WITNESS: Oh, there's -- I'm sorry.
14 There is two numbers on here. My bad. Okay.
15 Q. BY MR. SHAPIRO: Okay. You answered some
16 questions regarding this; correct?
17 A. Correct.
18 Q. How, if at all, are the numbers
19 associated -- well, let's just look.
20 There is a standard project flood given
21 at 107.5.
22 A. Correct.
23 Q. How, if at all, is that number associated
24 with the 1977 hydrology report we just looked at?
25 A. So it's based on the analysis from the 1977

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1 hydrology report based on those inflows.

2 Q. Okay. And I think as you testified
3 yesterday, how does the standard project flood now
4 compare to the limits of government-owned land?
5 A. So now the standard project flood exceeds
6 government-owned land, in this case, by 4-1/2 feet.
7 Q. And is that also the case for the Baker
8 table, which is at page ending 885?
9 MR. EASTERBY: It's the Barker table.
10 Q. BY MR. SHAPIRO: Barker.
11 A. Right, so for Barker, you have the standard
12 project flood at 99 feet, and you have
13 government-owned land at 95 feet, so that's another 4
14 feet.
15 Q. And is the calculation of the standard
16 project flood, is that -- how, if at all, is that
17 related for the Barker reservoir? How is that, if at
18 all, related to the 1977 study?
19 A. It's based on that analysis in 1977.
20 Q. Before we leave this document, you were asked
21 yesterday in relation to this document about
22 backwater impacts behind the reservoirs.
23 A. Yes, sir.
24 Q. Does anything on these pages say anything
25 about backwater effects behind the reservoirs?

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1 A. I don't think so.

2 Q. I want to turn back now to our chronology.
3 Let's go back to 1977.
4 What happened after the Corps finished
5 the 1977 hydrology report that we looked at?
6 A. So then we went into this long period of
7 analysis to figure out how to solve the problem.
8 Q. And when you say "solve the problem," what
9 problem do you mean?
10 A. So the larger flood that we now understand is
11 possible is an extreme risk of -- of causing dam
12 failure as well as causing inundation upstream.
13 Q. So were there concerns to downstream
14 properties after publication of the 1977 report?
15 A. There were.
16 Q. And what were those concerns?
17 A. So the flood was so large and at this time
18 the ends of the dams were not armored. The engineers
19 of the day, they thought that certainly the dam would
20 fail in some catastrophic manner during that spillway
21 design flood.
22 Q. And were there concerns about upstream
23 properties?
24 A. There were.
25 Q. And what were those concerns?

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1 A. There was concern that there would be

2 flooding beyond the limits of government-owned land,
3 as well as, you know, along the sides of the
4 reservoirs where the discharge would occur into those
5 adjacent watersheds.
6 Q. So you were asked yesterday about various
7 options that the Corps considered. Do you recall
8 talking about that?
9 A. Yes, sir.
10 Q. And one of the options that we're going to
11 look at in a moment was plan 1. Do you recall that?
12 A. Yes, sir.
13 Q. What was that option?
14 A. So that was degrading the ends of the dams.
15 Essentially the plan was to lower the end of the dam
16 so that the water could spill out in a controlled
17 manner at a much lower elevation, but protect the
18 dam, as well as to reduce flooding upstream.
19 Q. Degrading the ends of the dam. Would you
20 imagine that would have an impact on downstream
21 flooding?
22 A. It would.
23 Q. How is that?
24 A. So it was going to increase downstream
25 flooding during floods that were less severe than the

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1 spillway design flood, but still relatively

2 infrequent floods.
3 Q. You were shown several documents, in fact,
4 yesterday from the 1979/1980 time period where there
5 might have been some consideration given to
6 purchasing the fee property behind the dams.
7 Do you recall those?
8 A. Right.
9 Q. Perhaps up to maybe the spillway design flood
10 elevation?
11 A. Yes, sir.
12 Q. And my notes, and we didn't need to look at
13 this, but my notes show there was maybe a document,
14 PX45, where that was discussed in a May 2nd, 1980
15 document. Do you have some recollection of that?
16 A. Yes, sir.
17 Q. And you were asked if the United States had
18 bought that property back then, private properties
19 would not have flooded. Do you recall that question?
20 A. Yes, sir.
21 Q. If the United States had bought the property
22 back then, would Plaintiffs in this lawsuit have been
23 able to build on those properties?
24 A. No, sir.
25 Q. And why is that?

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1 A. Had we acquired it in fee title, we would not

2 have allowed construction on that property.
3 Q. And what makes you say that?
4 A. It's our general policy.
5 Q. You were asked about some draft news releases
6 that were issued from 1980 and then before -- I think
7 just a moment ago, about a 1981 release. After those
8 documents were written, did the Corps engage in a
9 public process to determine the next steps?
10 A. Yes, sir.
11 Q. If we can please look at PX87.
14 A. Yes, sir.
15 Q. What is this?
16 A. It's an environmental assessment for the
17 Buffalo Bayou and Tributaries projects for the
18 Addicks and Barker dam related to protection of the
19 dams from the spillway design flood.
20 Q. What's the date?
21 A. November 1981.
22 Q. And who prepared this document?
23 A. The U.S. Army Corps of Engineers, Galveston
24 District.
25 Q. Do you have any understanding of what this

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1 document does?
2 A. Yes, sir.
3 Q. And what is that?
4 A. It documents the environmental assessment
5 that was conducted for the plans up to that point in
6 1981, and recommends some action, and it's then
7 communicated to the public.
8 Q. We mentioned a few questions ago the law
9 NEPA. You said you were familiar with that.
10 A. Yes, sir.
11 Q. How, if at all, is this document associated
12 with that federal law?
13 A. This is a key component of the NEPA process,
14 preparing this and communicating it and recording it,
15 et cetera.
21 evidence.)
22 Q. BY MR. SHAPIRO: Can we turn, please,
23 to -- the page numbers are a little bit weird here,
24 but it will be the page ending in 898.

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1 Q. It should be background information right at

2 the beginning.
3 A. Got it.
4 Q. Do you see that document?
5 A. Yes, sir.
6 Q. And does that provide some background
7 information surrounding the project?
8 A. Yes, sir.
9 Q. If you turn to the next page, in the last
10 paragraph on page 2 there, what does it discuss about
11 a proposed emergency precautionary measure?
12 A. So it says, "In the interim, as an emergency
13 precautionary measure, a section at the end of the
14 each embankment will be lowered to provide for
15 passage of the flow of extremely rare floods."
16 Q. And is that related to the plan 1 that you
17 discussed earlier?
18 A. It is.
19 Q. And is that plan 1 that you discussed
20 earlier?
21 A. It is.
22 Q. If we turn now to the page ending in 906?
24 Q. It would be a few pages beyond that, titled
25 environmental assessment. Do you see that?

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1 A. Yes, sir.
2 Q. And just generally, what kind of information
3 is included here?
4 A. On this page you've got a little bit of a
5 discussion of the problem, the datum, and then the
6 historical background.
7 Q. And if we move forward a little bit, we'll
8 come to paragraph 5.04 on page ending 909. Do you
9 see that?
10 A. Yes, sir.
11 Q. And could you read what is stated there?
12 A. So it says, "Although the existing reservoir
13 embankments are sufficient to contain the standard
14 project flood, and should this storm occur, flooding
15 would extend beyond the governmental land upstream of
16 the embankments, the inadequacy of government-owned
17 land upstream of the reservoir embankments to contain
18 the water from the SPF was recognized in the original
19 design of the reservoirs. However, it was considered
20 at the time to be a limited problem because the
21 land's primary use at that time was for agricultural
22 purposes and any damages which might occur would be
23 infrequent and relatively minor. Consequently, this
24 land was not acquired by the federal government.
25 This deficiency will be addressed in a future

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1 comprehensive study. This problem does not affect

2 the safety of the dams."
3 Q. The statement there that the inadequacy of
4 the government-owned land upstream to contain the
5 SPF, was it recognized in the original design? Does
6 that sound correct to you?
7 A. It doesn't match what you see in the 1955 or
8 1962 regulation manuals.
9 Q. Was this document released to the public?
10 A. As far as I know.
11 Q. If we turn now to --
12 MR. EASTERBY: Your Honor, on that last
13 question, I don't believe there is any foundation to
14 establish that it actually was or wasn't. He said
15 "as far as I know."
16 THE COURT: Let's stop a moment.
17 Could the reporter read back, if you
18 can, the answer to the last question?
19 (The record was read as follows:
20 "Q. Was this document released to the
21 public?
22 "A. As far as I know.")
23 THE COURT: What was the answer to the
24 question before?
25 (The record was read as follows:

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1 "A. It doesn't match what you see in

2 the 1955 or 1962 regulation manuals.)
4 Now, part of the problem is the Corps
5 has more than a rudimentary understanding of the
6 functions of the National Environmental Policy Act,
7 and the fact that environmental assessments are
8 supposed to be released to the public.
9 But let's hear from Mr. Thomas what he
10 understands the situation to be.
11 Q. BY MR. SHAPIRO: Is that your understanding,
12 Mr. Thomas?
13 A. It is.
14 And it's later referenced in the 1984
15 General Design Memorandum. It also talks about that
16 this was released to the public, and I think we've
17 got some documents that talk about the release as
18 well.
19 Q. And what does that indicate to you?
20 A. That it was released to the public.
21 Q. Let's look at one of those documents now.
22 We'll look at Joint Exhibit 32. This is a document
23 that was admitted into evidence.
24 THE COURT: What is the number again,
25 Mr. Shapiro?

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1 MR. SHAPIRO: Hold on. I think it's actually

2 a Plaintiffs' Exhibit.
3 PX51, I think is the document that was
4 admitted.
5 THE WITNESS: (Witness complies.)
6 Q. By MR. SHAPIRO: You were asked several
7 questions about this document earlier.
8 Do you recall that, Mr. Thomas?
9 A. Yes, sir.
10 Q. And explain if you could, what is a general
11 design memorandum?
12 A. It's a document that documents the process
13 that was used to design some project. It will have
14 some design parameters in it. It will have some
15 information discussing economics and costs and things
16 like that.
17 Q. Does this document consider the various
18 proposals that the Corps was considering at the time?
19 A. It does.
20 Q. And does that include plan 1 that you
21 mentioned?
22 A. It does.
23 Q. If you turn, please, to -- it should be the
24 page ending 573.

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1 Q. And continuing on to 574, what information is

2 included there?
3 A. So this walks through the plans that were
4 evaluated and then talks about public input.
5 Q. And just so we're clear, in paragraph 3.3 on
6 page ending 573, plan 1, what is plan 1, just in your
7 words?
8 A. So this is the plan to degrade the ends of
9 the dams. And it gives the length, et cetera.
10 Q. And was -- how, if at all, does that relate
11 to the plan that we saw discussed in the
12 environmental assessment that we just looked at?
13 A. It's the same.
14 Q. Were these plans then discussed with the
15 public?
16 A. They were.
17 Q. If you look -- and did the Corps explain that
18 upstream properties might flood during certain
19 weather conditions?
20 A. They did.
21 Q. If you turn, please, to page ending 574 under
22 section 3.9.1.
24 Q. Does that discuss their attempts to inform
25 the public?

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1 A. It does.
2 Q. And what does it state there?
3 A. "In late 1981, steps were initiated to inform
4 the public of the Corps of Engineers' plan to
5 implement an interim solution for the dams and the
6 possible alternatives for a permanent solution. This
7 course of action was the subject of a news release by
8 the Galveston District Engineer on 19 November 1981.
9 This news release, accompanied by background
10 information, received wide publicity throughout the
11 Houston Metropolitan area and its surrounds. The
12 announcement immediately brought forth strong public
13 concern and opposition to plan 1. Plan 1 was opposed
14 because it allowed flood flows into adjacent
15 watersheds, and more importantly, it substantially
16 reduced the current level of protection for most
17 intermediate storms between the SPF and the SDF."
18 Do you want me to read the whole thing?
19 Q. No, just the next sentence.
20 A. "Additionally, segments of the public who
21 objected to plan 1 did not appear to be convinced
22 that the threat of a statistical infrequent storm,
23 such as the SDF, warranted acceptance of the intended
24 disadvantages of plan 1."
25 Q. Were there newspaper articles written about

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1 the Corps' consideration of various plans at this

2 time?
3 A. There were.
4 MR. EASTERBY: Objection, your Honor. No
5 foundation as to these newspaper articles being
6 written, or his knowledge of them.
7 THE COURT: Mr. Thomas, how did you know
8 that?
9 THE WITNESS: So I went to visit the person
10 that was the -- a similar job as mine, but different.
11 He was the engineering planning chief at the time,
12 and he had kept a scrapbook of newspaper articles
13 related to the work he did, and so I took some
14 pictures of them and he read them to me.
15 Q. BY MR. SHAPIRO: So have you seen several of
16 those newspaper articles?
17 A. Yes, sir.
18 THE COURT: Mr. Easterby.
19 MR. EASTERBY: Have these been produced in
20 discovery? Have these been disclosed? I don't know
21 what he's talking about.
22 THE COURT: Well, we will give you a chance
23 on cross-examination, Mr. Easterby.
24 MR. EASTERBY: It will also be hearsay, your
25 Honor. I mean, if he's got newspaper articles to

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1 show the witness to prove up his foundation, I think

2 that would deal with my objection, but the witness is
3 just talking about some articles we haven't seen.
4 THE COURT: Well, that's correct.
5 On the other hand, Mr. Thomas has
6 indicated that he personally saw the clips of the
7 newspaper articles, so that's sufficient so far, but
8 you can ask him additional questions on
9 cross-examination.
10 MR. EASTERBY: Yes, your Honor. Understood.
11 Q. BY MR. SHAPIRO: Approximately when were
12 these newspaper articles published?
13 A. The early '80s.
14 Q. And what did they relate to?
15 A. The process related to modifying the dams.
16 Q. Did any of the articles that you saw from
17 that time period include images or graphics showing
18 flooding beyond the government-owned land upstream of
19 the reservoirs?
20 A. They did.
21 Q. I'd like to show you Defendant’s Exhibit 71.
23 Q. Do you recognize what this is?
24 A. Yes, sir.
25 Q. What is it?

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1 A. This is one of the articles that Mr. Trahan

2 showed me.
3 Q. And is this one of the articles that you just
4 mentioned that shows flooding beyond the
5 government-owned lands upstream of the reservoirs?
6 A. It is.
7 Q. And is this -- was this published around this
8 time period?
9 A. It was.
10 Q. How do you know that if you look at the
11 title?
12 A. So the title says, "Engineers propose
13 lowering dams to eliminate the possibility of a
14 washout," which is exactly what the NEPA document is
15 talking about.
16 MR. SHAPIRO: Move the admission of
18 MR. EASTERBY: Well, your Honor, that exhibit
19 is hearsay, and I would also note I believe that
20 relates to plan 1, the degrading of the ends of the
21 dam. Plan 5B is what was implemented, so I also
22 don't see the relevance of it. That's a plan that
23 was never implemented, so I would object on those two
24 bases.
25 THE COURT: The Corps is aware of that.

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1 On the other hand, this exhibit is being

2 admitted, I take it, for public notice of plan 1.
3 MR. SHAPIRO: Well, that, and the -- if you
4 look at the graphic, it shows flooding outside the
5 boundaries of the plan.
6 THE COURT: It does with relation to the
7 proposal that was at issue at that time. The Corps
8 will overrule the objection and allow the admission
9 of the news article for a limited purpose; that is,
10 notice. Limited notice, granted, in consideration of
11 different plans at the time.
12 Q. BY MR. SHAPIRO: And how do you understand
13 the graphic that's on this?
14 A. So, it looks like you've got some of the main
15 tributaries labeled. You've got the dam embankments
16 shown. You've got the hatch area that appears to
17 indicate government-owned land. And then you've got
18 this gray area that appears to indicate the flooding.
19 Q. And have you seen other newspaper articles
20 from around the same time period that also discusses
21 the Corps' proposed plans?
22 A. Yes, sir.
23 Q. And do some of those have similar looking
24 graphics?
25 A. I think so.

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1 Q. I want to look at the final environmental

2 assessment now and this will be Plaintiffs' Exhibit
3 105.
6 A. Yes, sir.
7 Q. What is this?
8 A. This is the environmental assessment for the
9 Buffalo Bayou Tributaries Texas project, dated March
10 1986.
11 Q. And who prepared this document?
12 A. The U.S. Army Engineer, District Galveston.
13 Q. Was this document also prepared as part of
14 the Corps' NEPA process?
15 A. I believe it was.
17 Plaintiffs 105.
18 MR. EASTERBY: No objection.
21 evidence.)
22 Q. BY MR. SHAPIRO: Are documents like this, the
23 environmental assessment, made publicly available?
24 A. Yes, sir.
25 Q. If you could turn, please, in this document

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1 to the page ending in 851.

3 Q. That's just the first page. If we could --
4 what is this portion of the environmental assessment?
5 A. It is the finding of no significant impact.
6 Q. And if you go to the last paragraph, what
7 does it say about the publication of the draft
8 assessment? Excuse me, the draft environmental
9 assessment?
10 A. The draft environmental assessment was
11 circulated to local, state, federal agencies and
12 interested members of the general public. The
13 majority of the comments, appendix A, received --
14 provided minor concerns, however some substantial
15 concerns were expressed.
16 Q. Okay. Does that -- what does that indicate,
17 if anything, about the publication of the draft
18 environmental assessment that we saw earlier?
19 A. It says that it was made publicly available.
20 Q. If we look now further on in this document to
21 the page ending 860.
23 Q. In paragraph 3.8, does that include what
24 looks like similar language to what we saw in the
25 draft EA?

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1 A. Yes, sir.
2 Q. And on the next page, paragraph 3.9, on the
3 page ending 861, under paragraph -- I'm sorry,
4 paragraph 3.9.
6 Q. Can you read what that first paragraph says?
7 A. "Galveston District continued the public
8 involvement program on 21 February 1985, when the
9 District Engineer briefed Congressman Archer and
10 staffs of Senator Graham and Congressman Fields,
11 Delay and Andrews, on the selected plan, plan 5B,
12 modified for a permanent solution to the dam safety
13 problem."
14 Q. And then can you skip the next sentence and
15 read the sentence beginning "briefings."
16 A. "The briefings held shortly thereafter with
17 officials of Harris County, Brazoria County, city of
18 Houston, the State of Texas, and the West Houston
19 Association resulted in no opposition to the
20 project."
21 Q. And then does it mention in the next sentence
22 some concerns raised by Fort Bend County?
23 A. It does, it says, "They expressed concern
24 that the proposed improvements for dam safety would
25 maintain the status quo of the existing project for

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1 spillway design flood overflow.

2 Q. And then if you could read the next sentence.
3 A. "On 14 March 1985, a news release by
4 Galveston District informed the public of the
5 selected plan which could be implemented for a
6 permanent solution for resolving the dam safety
7 problem at Addicks and Barker dams."
8 Q. And the last sentence?
9 A. "This draft environmental assessment is the
10 public document to inform the public of the proposed
11 selected plan to ensure the safety of the dams."
12 Q. One of the sentences that we read indicated a
13 plan 5B modified. Do you have an understanding of
14 what that is?
15 A. Yes, sir.
16 Q. What is that?
17 A. That's the plan that was ultimately
18 constructed. It includes raising the main
19 embankment, and then armoring the low ends of the
20 dams at their existing elevations.
21 Q. And did those actions increase the amount of
22 water that the reservoirs could impound?
23 A. They did not.
24 Q. And what makes you say that?
25 A. So they were very careful at the time not to

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1 change the ends of the dam, the elevation, and so

2 long as those didn't fail very early in the event,
3 the engineers at the time determined that the pool
4 levels would be the same whether they armored them or
5 not.
6 Q. And did the Corps complete the work
7 associated with plan 5B as modified?
8 A. We did.
9 Q. When was that work completed?
10 A. I forget the exact date. It was late '80s,
11 early '90s.
12 Q. And did that work have any effect on the
13 amount of water the reservoirs impounded during
14 Hurricane Harvey?
15 A. It did not.
16 Q. How do you know that?
17 A. Because again, the pool levels didn't reach
18 an elevation where they would engage those
19 roller-compacted spillways in a way that could have
20 caused them to fail.
21 Q. Let's look at the next document in time, I
22 think which is the 1992 special report, JX44.
24 What number?
25 Q. It should be the 1992 report, JX44.

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1 And Mr. Thomas, you testified about this

2 earlier. Why was a special report prepared
3 after -- why was a special report prepared in 1992?
4 A. So there had been a previous pool of record,
5 and it was March of that year, and I think they
6 identified some risks there and wanted to do an
7 analysis to talk about those and think about how to
8 address that.
9 Q. Was this document publicly released?
10 A. Yes, sir.
11 Q. I believe you said it was attached to the
12 1995 reconnaissance report?
13 A. It was.
14 Q. And we'll talk about that in a minute.
15 If you turn to page 6 of this document,
16 which should be the page ending 078.
18 Q. And does this include under current
19 conditions -- you don't need to read it word for
20 word, but what kind of information is included here?
21 A. So this first paragraph talks about what the
22 dams look like, land use in the '40s. Then it talks
23 about in the past 40 years that really they had seen
24 some extensive urbanization of the west end of the
25 Houston Metropolitan area around both reservoirs.

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1 Q. And if we turn, please, you were asked a

2 question about this document about the hundred-year
3 event, and I think it was on page 9 of this document.
5 Okay.
6 Q. It is the last sentence right before real
7 estate property values.
8 A. Right.
9 Q. It states that the hundred-year event would
10 be contained within the reservoirs and not cause any
11 damage outside government-owned lands?
12 A. It does.
13 Q. And if you turn back now, please, one page
14 earlier to table 1, does that include a table of
15 significant elevations?
16 A. It does.
17 Q. And what does it say about the relationship
18 here about between 100-year flood and the limits of
19 the government-owed land?
20 A. So it says that Addicks is -- the
21 government-owned land is two feet higher than the
22 100-year flood, and then it says that Barker
23 government-owned land is a half a foot lower than the
24 100-year flood.
25 Q. And Barker, if it's a half a foot outside of

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1 governmental land, would that water outside of

2 governmental land inundate any homes?
3 A. I think based on our current data, I think
4 the answer is no.
5 Q. What does this 1992 report actually do?
6 A. What it really does is recommend that we
7 should do a recon report.
8 Q. And is it discussing the possible damages
9 associated with flooding upstream of the reservoir?
10 A. It does.
11 Q. Does it list alternative actions that the
12 Corps might want to consider?
13 A. It does.
14 Q. And then you said it recommends -- does it
15 recommend additional work?
16 A. It does.
17 Q. And what work does it recommend be
18 undertaken?
19 A. It recommends federally funded reconnaissance
20 study be undertaken under the authority of Section
21 216 of the Flood Control Act of 1970.
22 Q. What is a reconnaissance report?
23 A. So that was a report that we did at the time
24 essentially to justify the investment in that whole
25 feasibility study.

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1 Q. Okay. And does the Corps continue to prepare

2 reconnaissance reports for various projects?
3 A. We do not.
4 Q. And why would the Corps at the time, why
5 would the Corps prepare a reconnaissance report?
6 A. To determine if there was a federal interest
7 in doing the feasibility study. Essentially it was a
8 mini-feasibility study because the cost of
9 feasibility studies is very high, so it was a
10 preliminary study to decide if the cost was
11 justified.
12 Q. Could the Corps have begun construction on
13 some project without going through this
14 reconnaissance report?
15 A. No, sir.
16 Q. I want to talk about the reconnaissance
17 report in just a minute, but I want to step out for
18 one second and talk about Harris County Flood Control
19 District.
20 What is the relationship between Harris
21 County Flood Control District and this project?
22 A. So they're the non-federal sponsor for this
23 project.
24 Q. Had they always been the non-federal sponsor?
25 A. They always have been.

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1 Q. What does that mean to be the non-federal

2 sponsor for a federal project?
3 A. It means that they share in the cost,
4 certainly for construction, and then sometimes
5 they'll take over and operate and maintain it
6 themselves. In this case, the federal government
7 continues to operate and maintain this property.
8 Q. And does the -- is there a communication
9 network between the Corps and Harris County Flood
10 Control District?
11 A. There is.
12 Q. Would you have -- you weren't around, but
13 would you expect there to have been a coordination
14 and communication back in this time period, in the
15 mid 1990s?
16 A. Yes, sir.
17 Q. And would you expect there to have been
18 communications between Harris County Flood Control
19 District and the Corps prior to the release of this
20 reconnaissance report?
21 A. Yes, sir.
22 Q. I want to show you the next document. This
23 is Plaintiffs' Exhibit 1167.
25 THE COURT: Mr. Shapiro, you said 1167?

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2 THE COURT: Plaintiffs' exhibit?
3 MR. SHAPIRO: If I could have a minute.
4 THE COURT: That is not listed on my chart.
5 MR. SHAPIRO: Your Honor, my understanding is
6 this is an addition to the Plaintiffs' exhibit list.
7 MR. CHAREST: It was withdrawn from our
8 latest one.
9 MR. SHAPIRO: Oh. I don't understand why.
10 Plaintiffs made certain adjustments to
11 their exhibit list immediately before trial, after
12 they had filed their amended exhibit list. This
13 appears to be one of the documents that they
14 understandably cut from their list, so I was unaware
15 of that, I apologize. We can make arrangements to
16 get a copy to the Court, and I can just move on past
17 this point.
18 Let's see if this one's in there.
21 Q. What is this document, Mr. Thomas?
22 A. So, it is a memorandum from our Public
23 Affairs Office. The subject is Public Affairs Action
24 Plan for Addicks and Barker reservoir, dated June
25 23rd, 1992, it looks like.

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1 Q. And what is the date -- I'm sorry. You just

2 gave the date.
3 What is the Bates number on the first
4 page?
5 A. USACE322366.
6 Q. And does that indicate to you that this was
7 found in the Army Corps of Engineers' files?
8 A. Yes, sir.
11 MR. EASTERBY: Your Honor, I do have to
12 object, inasmuch as this document has some
13 handwritten annotations on it, and from the Court's
14 prior rulings, I'm assuming that means that the
15 handwritten annotations at least cannot be part of
16 this document or this exhibit.
17 THE COURT: Again, we had a discussion about
18 these documents and the approval process, and the
19 fact that this is -- we do have a set of questions
20 about foundation in this instance, so the Court will
21 reserve.
22 MR. EASTERBY: Okay.
23 Q. BY MR. SHAPIRO: Mr. Thomas, there are some
24 handwritten signatures on the names to the right-hand
25 side. Do you see that?

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1 A. Yes, sir.
2 Q. And do you have an understanding of what that
3 means?
4 A. Usually when we're reviewing a document,
5 after someone has reviewed it, they will initial next
6 to their name.
7 MR. SHAPIRO: Your Honor, this is an issue
8 that came up with respect to a different document. I
9 think it was Mr. Trahan who had made an initial there
10 and the Court admitted that document.
11 THE COURT: I did, but the Court now sees,
12 and didn't before, the fact that Mr. Guthrie, who is
13 supposedly the signatory, has initialed the document.
14 This might or not might not be the final version.
15 But on the other hand, obviously, the
16 Corps officials, including Mr. Guthrie, saw it and
17 initialed it.
18 So the answer would be the same, and
19 that is the document would be admitted even though it
20 might be a draft.
22 MR. EASTERBY: Your Honor, the handwritten
23 annotations I'm speaking to, counsel has not yet
24 shown the Court. They appear on page 3 of the
25 document. It's marked up. It's got handwritten

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1 annotations on it.
2 MR. SHAPIRO: We're not going to rely on
3 that, your Honor.
4 THE COURT: I'm sorry?
5 MR. SHAPIRO: We will not rely on that.
6 THE COURT: That might indicate a draft or
7 annotations on it, but let's proceed.
9 MR. SHAPIRO: On the first page --
10 I'm sorry. Was this document admitted,
11 your Honor?
12 THE COURT: Yes, it's admitted.
14 in evidence.)
15 Q. BY MR. SHAPIRO: On the first page, what do
16 you understand, just in general terms, paragraph 1,
17 to be doing?
18 A. Identifying comments provided.
19 Q. And then in paragraph 2, what does that say?
20 A. "Subject to the changes above, the document
21 would be approved by Mr. Guthrie."
22 Q. Well, can you just read it exactly like it's
23 written?
24 A. "Subject to changes specified above, I
25 approve the document."

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1 Q. Thank you.
2 And then plaintiffs' counsel is correct.
3 There are some handwritten notations I'm going to
4 ignore.
5 If you turn now to the page ending in
6 370.
8 Q. It should be -- yes. You can see it on the
9 screen.
10 Does that appear -- what does that
11 appear to be to you?
12 A. So it looks like signature blocks for four
13 different people.
14 Q. On --
15 A. Different offices in the District.
16 Q. On the next page, it's listed as attachment
17 1. Do you see that? What does that appear to be?
18 A. It looks like a list of contact information.
19 Q. And what kind of contact information?
20 A. So media on the first page here, Houston area
21 media.
22 Q. And what about the second page?
23 A. The second page has some other area media it
24 looks like, as well as TV channels and some
25 congressmen.

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1 Q. And what about the next page?

2 A. And the last page has other agencies, so like
3 state and other federal agencies that we would
4 typically coordinate with for our NEPA process.
5 Q. On the last page of this document there's an
6 attachment 2. Do you see that?
7 A. Yes, sir.
8 Q. And if you could read, please, this -- what
9 does this appear to be to you?
10 A. It looks like a set of questions and answers
11 that are prepared prior to engaging either the public
12 meeting or potentially with the media.
13 Q. And what is the question and answer for the
14 first?
15 A. So the first question is: "If this situation
16 has existed for 40 years, why is the Corps now
17 becoming concerned?"
18 The answer is: "When the reservoirs
19 were built in the 1940s, the reservoirs were located
20 in a Rural area, a substantial distance west of the
21 city of Houston. Land use in and around the
22 reservoirs was predominantly farming and ranching;
23 however, in the past 40 years, extensive urban growth
24 has resulted in both reservoirs being surrounded by
25 intense commercial and residential development. In

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1 the probable maximum flood scenario, these high

2 value, high population areas would be in danger."
3 Q. What about the second question and answer?
4 A. The second question says: "What does the
5 Corps propose to do about the situation?"
6 The answer: "Preliminary work has
7 already begun. A special report, Buffalo Bayou and
8 Tributaries in Texas, Addicks and Barker reservoirs
9 Special Report on Flooding was prepared in May 1992."
10 Q. I'm going to interrupt you there. Does that
11 appear to be the 1992 report that we looked at
12 earlier?
13 A. It does.
14 Q. Okay.
15 A. "The report provides general background
16 information on the existing operational conditions at
17 Addicks and Barker reservoirs, and gives an overview
18 of the order of magnitude of the anticipated flooding
19 damages which could occur in areas off of government
20 property, assuming different flood events."
21 Q. Do you have any reason, sir, to think that
22 this information was not relayed to the individuals
23 included on attachment 1?
24 A. No, sir.
25 MR. EASTERBY: Your Honor, object to that.

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1 This is a draft public affairs

2 statement. I don't think there's been any foundation
3 laid that it was actually issued.
4 MR. SHAPIRO: Your Honor, it states, "Subject
5 to change as specified above, I approve the
6 document." This document is approved. It identifies
7 a variety of media outlets --
8 THE COURT: On the other hand, it is a draft,
9 and it might have been approved, but we don't
10 actually know that it was circulated, so the Court
11 will take it in hand for what it is.
12 Q. BY MR. SHAPIRO: You don't have any reason to
13 think that they didn't go through with the plan that
14 is approved in this document, do you?
15 A. No, sir.
16 MR. SHAPIRO: Your Honor, we're at almost
17 3:00, and I think prior to -- pursuant to our prior
18 agreement, we'll take a break if that's okay.
19 THE COURT: The Court agrees. If you're at a
20 legitimate and reasonable stopping point, this might
21 be a time for our afternoon break.
23 MR. VUJASINOVIC: Judge, we'll take
24 Mr. Lindner after the break is over.
25 THE COURT: Say again so I can hear you.

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1 MR. VUJASINOVIC: Sorry, your Honor.

2 We're going to put Mr. Lindner on the
3 stand after this break.
4 MR. SHAPIRO: Correct.
5 THE COURT: I think everyone's in agreement,
6 including Mr. Thomas.
7 Okay. We're in recess for 15 minutes.
8 LAW CLERK: All rise. The Court is now in
9 recess.
10 (Recess: 2:58 p.m. - 3:19 p.m.)
12 Well, we have another incident besides
13 that one to cover administratively.
14 May we do that, Mr. Vujasinovic? I keep
15 getting my vowels in the wrong place.
16 MR. VUJASINOVIC: Vujasinovic.
17 THE COURT: Vujasinovic. Thank you.
18 We have talked with the U.S. Marshal,
19 and a deputy marshal, and we are likely to have a
20 situation tomorrow at the start of the site visit
21 where the -- a Deputy U.S. Marshal will follow the
22 bus and accompany us on the site visit.
23 Now the Deputy U.S. Marshal, or the U.S.
24 Marshal advises he cannot carry a private citizen in
25 his vehicle. He can carry me, so I might ride with

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1 the Deputy U.S. Marshal depending on the room you

2 have in the bus. And the reporter and others might
3 ride with the parties or counsel, but we'll cover
4 that in a little more detail tomorrow. We'll work
5 through the times, so on and so forth.
6 Mr. Shapiro.
7 MR. SHAPIRO: That's fine with the United
8 States, your Honor.
9 THE COURT: You say that's fine?
10 MR. SHAPIRO: No problem.
12 All right. Let's proceed,
13 Mr. Vujasinovic.
14 MR. VUJASINOVIC: Yes, your Honor. Thank
15 you.
16 We call Jeff Lindner at this time.
17 THE COURT: Mr. Lindner, would you deposit
18 your water at the corner of the witness stand and
19 stop then right there and remain standing.
20 Mr. Lindner, do you swear or affirm that
21 the testimony you're about to give in this trial
22 shall be the truth, the whole truth, and nothing but
23 the truth so help you God?
25 THE COURT: Please be seated on the witness

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1 stand.
2 Once you're there, sir, would you please
3 state your full name for the record.
4 THE WITNESS: Jeff Lindner, L-i-n-d-n-e-r.
6 Mr. Vujasinovic, you may proceed.
7 MR. VUJASINOVIC: Thank you, Judge.
8 DIRECT EXAMINATION
9 BY MR. VUJASINOVIC:
10 Q. Mr. Lindner, my name is Vuk Vujasinovic.
11 I'll have some questions for you today.
12 You're probably with the Harris County Flood Control
13 District; is that right?
15 Q. What's your job there?
16 A. I am the Director of Hydrology Operations and
17 a meteorologist.
18 Q. And have you been with the District since
19 2004?
20 A. I have.
21 Q. And are you a meteorologist?
22 A. I am.
23 Q. Can you please tell the Judge your education
24 and experience in meteorology?
25 A. Yes.

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1 I have a bachelor of meteorology from

2 Texas A & M. I graduated in 2004. I did an
3 internship at KHOU, Channel 11, a local TV station,
4 for two years. And then the rest of my time has been
5 spent at the Harris County Flood Control District.
6 Q. So this gentleman is trying to get all of our
7 talking down, so...
8 Now can you please walk -- well,
9 meteorology, does that include of study of rainfall
10 amounts and return periods?
11 A. To a degree, yes.
12 Q. And will you briefly just walk the Corps
13 through your various jobs and their duties through
14 the -- with the District, starting in '04?
15 A. So when I started in 2004, my primary job was
16 working with the -- what we call the flood watch
17 team, and this is a team of employees at the Harris
18 County Flood Control District that activate during
19 floods.
20 After Hurricane Ike, I moved into a role
21 of more public-facing communications, which would
22 sort of be along the lines of a public information
23 officer, or PIO.
24 And then a few years ago, also after
25 Hurricane Ike, we -- the Harris County Flood Control

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1 District acquired the -- what we call the flood

2 warning system, which is a network of gauges across
3 Harris County that monitor rainfall and water level,
4 and that is also under my management.
5 And then after I believe it was 2016, I
6 was promoted to the Director of Hydrologic Operations
7 Division, which does all flood operations and also
8 manages the gauge network.
9 Q. Can you please tell us what was your role was
10 leading up to and during Harvey here in Harris
11 County?
12 A. So my primary role leading up to Harvey was
13 working with the Office of Emergency Management,
14 preparing the residents of this area for what
15 potentially could happen with respect to the amount
16 of rain we were expecting. The uncertainty of the
17 forecast, and then also trying to convey what that
18 type of rain would potentially do, so trying to
19 convey what type of flooding we would see.
20 Q. And when you say trying to convey, do you
21 mean convey to our community here in Harris County,
22 the public?
23 A. It was trying to convey both to the
24 community, the public, to the emergency management
25 officials, elected officials, and also TV media, you

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1 know.
2 We were looking at Harvey, and we were
3 all struggling with what does 30 and 40 inches of
4 forecasted rain look like, and so trying to convey
5 that message, it's going to rain a lot, but what does
6 that look like? It was quite difficult leading up to
7 the storm.
8 Q. Okay. And how many Twitter followers did you
9 have before Harvey?
10 A. I think I had about 2,000.
11 Q. And after?
12 A. About 20,000.
13 MR. VUJASINOVIC: All right.
14 Judge, to the extent some of my
15 questions and opposing counsel's might touch on
16 meteorology issues, we would offer Mr. Lindner up as
17 an expert in meteorology.
18 THE COURT: Ms. Tardiff, voir dire?
19 MS. TARDIFF: Well, your Honor, there is
20 no --
21 THE COURT: I'm sorry. I can't hear you.
22 MS. TARDIFF: I'm sorry, your Honor.
23 There was no disclosure of Mr. Lindner
24 as a expert under the rules for this case, and no
25 expert report, so it's not a question of voir dire,

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1 it's a question of his status as a fact witness.

2 THE COURT: Mr. Vujasinovic.
3 MR. VUJASINOVIC: Yes, Judge.
4 I'm pretty sure we cross-designated him
5 as an expert. He's not a retained expert, obviously,
6 your Honor, but he -- Mr. Lindner did author the
7 official Harris County report on Hurricane Harvey
8 from the District's perspective.
9 THE COURT: We do have the question of the
10 applicability or not of Rule 701, and opinion
11 testimony by lay witnesses.
12 Ms. Tardiff, do you have a view?
13 MS. TARDIFF: Well, your Honor, Mr. Lindner
14 is identified as a fact witness. We have no problem
15 with him testifying --
16 THE COURT: I'm sorry. Say again.
17 MS. TARDIFF: He is designated by both
18 parties as a fact witness.
19 THE COURT: Yes.
20 MS. TARDIFF: He is an employee of Harris
21 County Flood Control District. There was a report,
22 and both sides have cross-designated from the
23 District. That's a public report, so we certainly
24 don't have any issue with him testifying as a fact
25 witness.

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1 THE COURT: We'll cross the bridge of opinion

2 testimony when we get to it.
3 Mr. Lindner is certainly a fact witness.
4 MR. VUJASINOVIC: Understood, Judge.
5 THE COURT: Let's proceed.
6 Q. BY MR. VUJASINOVIC: You're familiar with the
7 design and operation of the Addicks-Barker project;
8 is that correct?
9 A. Some, yes.
10 Q. Okay. And how did you gain that familiarity
11 over the years?
12 A. Mainly with experience, and then going to
13 meetings. There's a group called the Addicks-Barker
14 Emergency Coordination Team or ABEC. I believe that
15 team was put together in 2009, around that time
16 frame, and so a lot of my knowledge came from that,
17 and also from an individual in the Flood Control
18 District whose name was Steve Fitzgerald. Steve was
19 my supervisor for 10 or 12 years.
20 Q. Has Mr. Fitzgerald been your prime contact
21 with the Corps over the years?
22 A. No, he works for Harris County Flood Control
23 District.
24 Q. I mean -- so he was your boss at the time?
25 A. He was. He retired.

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1 Q. The Corps of Engineers owns, operates and

2 maintains Addicks and Barker stored water detention
3 reservoirs; is that correct?
4 A. Yes.
5 Q. Harris County does not do that; correct?
6 A. No.
7 Q. What I said is correct?
8 A. What you said is correct.
9 Q. Thank you.
10 A couple points on your terminology,
11 reservoir, to you, includes government-owned land
12 plus what you've referred to as the flood pool; is
13 that right?
15 Q. And then you defined flood pool as land that
16 extends from this edge of government-owned land to
17 the end of the spillway elevations; is that right?
18 THE COURT: Just a moment.
19 MS. TARDIFF: I'm going to object.
20 THE COURT: Ms. Tardiff.
21 MS. TARDIFF: Yes, your Honor; objection.
22 Leading and lack of foundation.
25 Q. Please give the Judge your definition of

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1 flood pool.
2 A. My definition of flood pool, the way I
3 understand it, would be the government-owned land to
4 the end of the auxiliary spillways.
5 Q. And how do you define those?
6 A. So it's where the -- it would be where the
7 dam ties into the natural ground.
8 Q. Now based on your observations, the federal
9 government designed and operates the project to
10 protect downstream infrastructure; is that correct?
11 A. That is my understanding, yes.
12 Q. And how do they do that, to your
13 observations?
14 A. How do they do --
15 Q. Do they do that by holding back water behind
16 the dams?
17 A. Yes.
18 Q. Okay. And to your observations, do they hold
19 back water behind the dams until it starts to spill
20 over the ends of the dams?
21 A. They -- they hold back water until it is safe
22 to release it downstream, to have as little impact
23 downstream as possible, but they're within the
24 guidelines of the Water Control Manual.
25 Q. Yes, sir.

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1 And to your observations, that's the way

2 the Corps designed the dams to function?
3 A. That's my understanding.
4 Q. Which, in certain rain events, will flood
5 upstream private properties?
6 MS. TARDIFF: Your Honor, objection; lack of
7 foundation.
8 THE COURT: That question, unfortunately,
9 asks for a yes or no answer. That question can
10 easily be answered to give a response in narrative
11 form.
12 Why don't you do that, Mr. Vujasinovic.
14 Q. Please tell us how the design of the dams
15 protect the downstream infrastructure.
16 MS. TARDIFF: Your Honor, I have to object on
17 lack of foundation again. Mr. Lindner has been
18 identified as a meteorologist. It has not been
19 established that he is familiar with dam operations
20 and engineering, hydrology.
21 THE COURT: And what?
22 MS. TARDIFF: Dam operations, hydrology,
23 engineering.
24 THE COURT: Well, could you just adjust your
25 microphone, Ms. Tardiff? You have a very soft voice

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1 that tends to tail off at the end of sentences, and

2 it's not just the reporter, it's me who has trouble
3 hearing you.
4 But let's just say that Mr. Lindner has
5 testified that he coordinates, and has for some
6 years, in a group that addresses the dam, so the
7 Court will overrule the objection and allow the
8 question to be answered.
9 Q. BY MR. VUJASINOVIC: Go ahead, sir.
10 Do you remember the question.
11 A. Can you repeat it?
12 Q. Tell us about, to your observations, how the
13 Corps serves the dam's purpose of protecting
14 downstream infrastructure.
15 A. So my observations in the event that heavy
16 rain is forecast or rainfall is forecast, the
17 floodgates on both the dams are closed, and water is
18 then impounded behind the dams, and once the threat
19 of rain has passed and the level of the Buffalo Bayou
20 and Piney Point, which is the downstream control
21 point, has fallen below a certain level, then water
22 will be released.
23 Q. And from your observations, is that how the
24 Corps intends that project to operate?
25 A. Yes.

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1 Q. Let's talk about rainfall amounts.

2 You were involved in writing the
3 official Harris County Flood Control District report
4 on Harvey; is that correct?
5 A. That was correct, yes.
6 Q. And I'm going to hand you Plaintiffs' Exhibit
7 201 and ask if you recognize that document.
8 A. Yes.
9 Q. Tell us what it is, please.
10 A. This is the -- what we call the final -- this
11 particular one is the final immediate flood report
12 that the Harris County Flood Control District did for
13 Hurricane Harvey, and this is a report that we do
14 after significant flood events in the county.
15 MR. VUJASINOVIC: We offer Plaintiffs'
17 MS. TARDIFF: Your Honor, no objection to the
18 admission of the report; however, I think it's been
19 re-marked as Joint Exhibit 229 for the record.
20 MR. VUJASINOVIC: And it says the report
21 is --
23 MR. VUJASINOVIC: Sorry, Judge. I'll wait.
24 THE COURT: I'm trying to get this all sorted
25 out between the exhibits, because we really don't

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1 want duplication.
2 So Ms. Tardiff, you say this is 229?
3 MS. TARDIFF: It is Joint 229.
4 And I think it was identified in the
5 parties' stipulations.
6 THE COURT: I'm sorry, what?
7 MS. TARDIFF: I think it was identified in
8 the parties' fact stipulations as Joint 229.
9 THE COURT: Well, that doesn't count, as you
10 know.
11 MS. TARDIFF: No, but just to have a clear
12 record, your Honor.
13 THE COURT: All right. The exhibit is
14 admitted as Joint Exhibit 229.
16 evidence.)
17 Q. BY MR. VUJASINOVIC: Please tell us what this
18 is.
19 A. So this report is a report that we, the Flood
20 Control District, does after any major storm event in
21 the county, and this is the final one for Harvey, and
22 I believe there were -- there was a first and a
23 second, and this will be the third and final report
24 for Harvey.
25 Q. And it's got, sorry, Steve Fitzgerald also in

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1 the "from" line on the memo here, and you told us

2 he's your boss; is that correct?
3 A. He was.
4 Q. And you exclusively wrote the parts of this
5 report concerning rainfall and frequency; is that
6 correct?
7 A. Yeah, we both worked on it, so I would say
8 it's not completely exclusive, but we both worked on
9 it, yes.
10 Q. And you illustrate rainfall using a table
11 called Rainfall Intensity Report, which is on the
12 exhibit later on in your Exhibit 201 that I've got on
13 the screen; is that correct?
14 A. Yes.
15 Q. And tell the Judge the information that's
16 captured in the Rainfall Intensity Report.
17 A. So the Rainfall Intensity Report is all of
18 our automated flood gauges across the county, so each
19 one of these, the sensor ID is the location, which is
20 described on the right side. So for example, 100
21 would be Clear Creek at State Highway 146.
22 And then we determined the maximum
23 rainfall for those time steps, so we have five-minute
24 through four days. And this is -- this isn't -- so,
25 for example, it's the maximum 15 minute that

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1 we -- that occurred during this particular storm.

2 It's not a 15-minute time step, so it's not like from
3 1 to 1:15.
4 Q. Were you done?
5 A. Yeah, just because I think sometimes you can
6 think of it as from 1 to like 1:30, but it could be
7 1:05 to 1:35 in the time steps.
8 Q. And then also there's a column for site right
9 here, for example, on the one you referenced?
10 A. Yes.
11 Q. And that gives kind of a site to
12 geographically orient you where that sensor is; is
13 that right?
14 A. That is correct.
15 Q. All right. And the data that's reflected in
16 this table comes from the gauges that Harris County
17 puts in and maintains throughout Harris County; is
18 that correct?
20 Q. That's part of the FWS or flood -- what does
21 that stand for again?
22 A. FWS stands for flood warning system.
23 Q. Okay. And this I'm putting up here is a
24 demonstrative HarrisCountyFWS.org.
25 This shows the rain gauges throughout

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1 Harris County; is that correct?

3 Q. And to orient, you've got -- the reservoirs
4 are on the -- you can see Barker reservoir there, and
5 you can -- and above it would be Addicks; correct?
6 A. That's correct; however, I'm not seeing
7 anything on my screen.
8 Q. Sorry. It was -- here's -- basically the
9 area of the reservoirs; correct?
10 A. Yes.
11 Q. And how many rain gauges are throughout the
12 entire Harris County, ballpark?
13 A. Currently right now we have 175. At the time
14 of Harvey, we had about 154.
15 Q. Okay. And then you have -- how many do you
16 have in the Addicks watershed, the Barker watershed,
17 and in the Cypress Creek watershed each?
18 A. For Addicks, about 9. Barker would be 6 to
19 8, and I believe Cypress Creek is 10 to 12.
20 THE COURT: Mr. Vujasinovic, is it important
21 that we know this demonstrative to understand the
22 testimony?
23 MR. VUJASINOVIC: It will be helpful, Judge.
24 THE COURT: Then we ought to identify this as
25 a demonstrative exhibit. Can we identify it as PDX1?

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1 MR. VUJASINOVIC: Yes, your Honor.

2 THE COURT: And if you could provide a copy
3 for the record.
4 MR. VUJASINOVIC: We will do that.
6 Is that satisfactory, Ms. Tardiff?
7 MS. TARDIFF: Yes.
8 No objection, your Honor.
9 THE COURT: Okay. Thank you.
10 Q. BY MR. VUJASINOVIC: Okay. Mr. Lindner --
11 THE COURT: So just to clarify for the
12 reporter, PDX1 is part of the record, but not in
13 evidence as such, it's a demonstrative.
14 Q. BY MR. VUJASINOVIC: Will you tell the Court
15 what the District does to make sure these gauges
16 capture reliable data?
17 A. Yes. So twice a year, both in the spring and
18 then in the fall, we do what we call preventative
19 maintenance checks on each one of these sites, so the
20 rain sensor feature, which is called the tipping
21 bucket, is tested to a two-inch-per-hour rainfall
22 rate, and as long as that test comes back plus or
23 minus 3 percent, we consider that good.
24 Q. How many times a year do you all do that
25 calibration?

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1 A. Twice.
2 Q. And is this, in your opinion, the best
3 available data in Harris County for those rainfall
4 amounts?
5 A. This would be some of the best, yes.
6 Q. Now for any particular storm event,
7 Mr. Lindner, if someone says, hey, that was a
8 thousand-year storm event, would you agree with that
9 statement?
10 A. Yes.
11 Are we talking about Harvey or are we
12 talking about --
13 Q. Any storm, if someone says, hey, this whole
14 storm, you know, whatever the storm's name is, that
15 was a thousand-year event, or whatever year event
16 they would want to say, would you agree with that
17 statement --
18 A. No.
19 Q. -- with someone being able to define a storm
20 that way?
21 No.
22 A. Defining a storm that way, yes, but...
23 Q. Well, would you agree with the statement that
24 okay, something like Harvey is a thousand-year storm?
25 A. Yes and no.

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1 Q. Okay. Well, now isn't it true that you

2 cannot say an entire storm was a single point worst
3 rainfall because rainfall varies within a storm?
4 A. Correct, yes.
5 Q. And rainfall during a storm will vary
6 geographically; correct?
7 A. Yes.
8 Q. And it will vary over time?
9 A. Yes.
10 Q. And, for example, in Harvey, various rain
11 bands were moving across Harris County; correct?
12 A. Correct.
13 Q. Dropping different amounts of rain over space
14 and over time; is that correct?
17 MS. TARDIFF: I would like to object as
18 leading your Honor.
19 Mr. Lindner is not --
20 THE COURT: I'm sorry, what?
21 MS. TARDIFF: I would like to object to this
22 line of questioning as leading, your Honor.
23 MR. VUJASINOVIC: I think we got a little
24 adverse on this discrete issue, Judge. That's why I
25 was doing that.

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1 MS. TARDIFF: There isn't any establishment

2 that Mr. Lindner --
3 THE COURT: I'm sorry, say it --
4 MS. TARDIFF: Mr. Lindner is not an adverse
5 witness. That has not been established.
6 THE COURT: I understand.
7 As the Court understands it, he was in
8 Houston and in charge of this emergency response in
9 large part for the Harris County Flood -- I've
10 forgotten exactly the name of it -- the flood control
11 entity -- Flood Control District.
12 So the question is allowed, but if it
13 could just be non-leading, that would be helpful.
14 MR. VUJASINOVIC: Yes, Judge.
15 Q. Let me ask this way: During Harvey, was
16 every part of Harris County receiving the same amount
17 of rainfall at the same time?
18 A. No.
19 Q. Are those kinds of things important in
20 establishing the frequency of rain events?
21 A. Yes.
22 Q. Now the biggest rainfall amounts of Harvey
23 happened way far away from our county; isn't that
24 right?
25 A. The largest rainfall recorded was in the

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1 Beaumont/Port Arthur area, about 80 miles east of

2 here.
3 Q. Now did the Harvey four-day maximum rainfall
4 across Harris County range from a low to a high?
5 A. You mean a low total -- a lower total to a
6 higher total?
7 Q. I mean certain parts of the county, I mean
8 there's a low and then there's a high in terms of
9 rainfall that Harvey dropped on Harris County; is
10 that correct?
11 A. There would be a lower amount of rain and
12 then there is a maximum amount, yes.
13 Q. And let's look at your report, Plaintiffs'
14 Exhibit 201. Let me direct you to -- do you know
15 where the highest amount or maximum rainfall was
16 recorded in Harris County during Harvey?
17 A. Yes, it was at our gauge at Clear Creek and
18 I-45.
19 Q. It's sensor ID --
20 A. 110.
21 Q. 110.
22 And the inches amount was what?
23 A. 47.4 inches in four days.
24 Q. Okay. So that was the maximum that Harvey
25 dropped anywhere in Harris County?

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2 Q. And that happened -- if I go back to the
3 PDX1, I'm going to circle that gauge on here. That's
4 this gauge way down here; right?
5 A. That is correct, yes.
6 Q. The farthest pretty much southeastern corner
7 of Harris County; is that right?
9 Q. All right. And then if we look into the
10 report, what was the lowest four-day rainfall during
11 Harvey? Do you know where that is?
12 A. I do not.
13 Q. All right. It's in -- I'm going to point it
14 to you. It's in Cypress Creek, and there was -- does
15 24.6 sound like it would be the low for Harvey?
16 A. That sounds correct, yes.
17 Q. All right. I mean I've done -- I've done --
18 I've looked at it, so sensor 1165 picked up 24.6,
19 which is the low throughout Harris County. Would you
20 have any reason to not believe that?
21 MS. TARDIFF: Objection; leading.
22 Objection; leading.
23 THE COURT: It is, but on the other hand, the
24 data on the Rainfall Intensity Report verifies the
25 whole situation, so the question is nonetheless

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1 allowed.
2 Q. BY MR. VUJASINOVIC: So the lowest amount of
3 rainfall that fell during Harvey over the four days
4 was in sensor 1165. It was 24.6 inches over at
5 Cypress Creek at Eldridge Parkway North; is that
6 correct?
7 A. Yes.
8 Q. And if we go to the PDX1. It's up here, that
9 particular gauge. Am I circling that one right?
10 A. Yes.
11 Q. And so Harvey's absolute low four-day
12 rainfall happened just north of Addicks and Barker;
13 right? At least north of them; fair?
14 A. Yeah, it was -- it was north of the Addicks
15 watershed but it wasn't the Cypress Creek watershed.
16 Q. And the lowest Harvey rainfall was in the
17 Cypress Creek watershed; is that correct?
18 A. Correct.
19 Q. Which did contribute some water to the pools
20 during Harvey; correct?
21 A. Yes, it did.
22 Q. Because of that overflow situation; correct?
23 A. Correct.
24 Q. Now the max -- can -- from looking at your
25 report, can we figure out what the four-day maximum

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1 rainfall was just into the Addicks-Barker reservoirs

2 and not Harris County-wide?
3 A. Yes.
4 Q. Okay. And have you done that before just
5 right now? Have you done that --
6 A. Have I looked at the maximum totals in the
7 reservoirs?
8 Q. We can go through an exercise and figure that
9 out; is that correct?
10 A. We can, yes.
11 Q. And so first of all, we can agree or -- I
12 don't want to lead you.
13 Okay. And was the -- was the four-day
14 rainfall in the Addicks/Barker watersheds and the
15 Cypress Creek watershed less than Harvey's four-day
16 maximum?
17 A. Yes.
18 Q. Okay. And then within each of those three
19 watersheds, we would have a high and a low number for
20 the four days; is that correct?
22 MR. VUJASINOVIC: Okay. I've got a
23 demonstrative graph here, and I'll, for now refer to
24 it as PDX2, with the Court's permission.

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1 Q. BY MR. VUJASINOVIC: And what I've done, we

2 could go through all these charts, but I've
3 basically, as you can see, we've got countywide
4 Harvey four day on the far left, the high 47.4 that
5 happened down at the southeast corner and the 24.6
6 low, and then for each watershed, I've documented the
7 high-recorded and the low-recorded, and I would like
8 you to confirm that's correct. I'm happy to walk you
9 through it, if you want.
10 THE COURT: Mr. Lindner, just take your time.
11 It's probably simpler if you do it yourself.
12 THE WITNESS: No, that's correct. This is
13 correct.
14 Q. BY MR. VUJASINOVIC: My demonstrative is
15 correct?
16 A. It is correct.
17 Q. Okay. And so obviously from here we -- you
18 know, we see that water that fell in the watersheds
19 is less than the maximum Harris County/Harvey;
20 correct?
21 A. Yes.
22 Q. And as we discussed, the Harvey low happened
23 in one of the -- at the Cypress Creek watershed;
24 correct?
25 A. Yes.

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1 Q. Now, in your report, did you compare the

2 countywide Harvey maximum rainfall to the maximum
3 rainfall of other storms that have previously
4 happened in Harris County?
5 A. I believe so, yes.
6 Q. And what other storms did you compare that
7 to? And would that be on page 4 of your report?
8 A. Yes. Yes.
9 Those -- the other storms that Harvey
10 was compared to was Tropical Storm Allison in June
11 2001, the April 2016 storm which we've sort of
12 labeled "Tax Day," and then a flood in October of
13 1994.
14 Q. All right. And you've got it divided among
15 the eight different time durations; is that correct?
16 A. Yes.
17 Q. And so Harvey here, is this the maximum
18 Harvey four-day rainfall figures?
19 A. Yes.
20 Q. And it's got, again, we see that 47.4 at the
21 bottom down there in that southeast corner; right?
23 Q. Okay. And now if we compare these other
24 storms like you've done, in Allison, did any of the
25 four-day maximum rainfall in Allison exceed the

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1 maximum four-day rainfall for Harvey?

2 A. No.
3 Q. What about these three right here?
4 A. Those did, but those aren't the four-day
5 maximums.
6 Q. Sorry if I said four-day.
7 Did -- can we agree that -- that Allison
8 rainfall exceeded the Harvey rainfall during the
9 six-hour, 12-hour, and one-day time periods?
10 A. Yes.
11 Q. Okay. And then on Tax Day, how many time
12 durations exceeded Harvey?
13 A. None.
14 Q. Okay. And then what about the October '94
15 storm?
16 A. None.
17 Q. Okay. And, again, that's comparing them to
18 the maximum countywide Harvey; is that correct?
20 Q. Now did you do any comparison of these three
21 other storms to the lesser amount of rain that fell
22 into the three watersheds?
23 A. No.
24 Q. And if we do that, the results are different;
25 is that correct?

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1 A. I'd have to see the results.

2 Q. Okay. Now isn't it correct that Allison's
3 maximum rainfall -- I mean Allison happened in Harris
4 County?
5 A. Yes.
6 Q. Okay. Allison's maximum rainfall, was it
7 more than Harvey's maximum rainfall that fell in each
8 of the three watersheds for all eight time durations?
9 A. I'd have to look at those watersheds and have
10 the time durations.
11 You're talking about the Addicks
12 watershed, the Barker watershed, the Cypress Creek
13 watershed; correct?
14 Q. Yes, sir.
15 A. I would have to have the rainfall intensity
16 tables for those watersheds for those storms to look
17 at.
18 Q. You have those in your report.
19 A. These are countywide maximums, they are not
20 just for the watersheds.
21 Q. No, I know that, but we have the rainfall
22 intensity report.
23 A. You have the rainfall intensity report for
24 Harvey?
25 Q. Okay. I'm comparing these figures that felt

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1 in Allison to the amount of rain that fell in Harvey

2 in the watersheds.
3 A. In the entire county?
4 Q. No, I'm asking about in the watersheds.
5 A. Which watershed?
6 Q. Remember -- all right. Let's do this.
7 Do you remember this graph right here?
8 A. Yes.
9 Q. Okay. So we've already -- you agreed my
10 thing was right here in the high numbers for the
11 rainfall in the three watersheds was 33.2, 36.3, and
12 34.9; correct?
13 A. Correct.
14 Q. Okay.
15 THE COURT: Let me just interject, if I may.
17 THE COURT: PDX2 is admitted for a limited
18 purpose; that is as a demonstrative.
20 Q. You remember going through this exercise in
21 your deposition, Mr. Lindner?
22 A. I believe I remember, yes.
23 Q. Do you recall comparing the four-day --
24 maximum four-day for Allison, to the maximum that
25 fell in the Addicks and Barker, the three watersheds?

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1 A. I remember comparing the maximum four-day for

2 Allison to, yes, Addicks and Barker. So the maximum
3 for Allison was 38.5 inches. And the maximum for
4 Harvey in Addicks and Barker were the two numbers on
5 the --
6 Q. The three numbers on the graph?
7 A. Well, Addicks and Barker would be 33.2 for
8 Addicks and 36.3 for Barker.
9 Q. Which is all less than Harvey --
10 A. Which is less than Allison, which is less
11 than Allison's four-day total, yes. Yes.
12 Q. Okay. And during -- for Tax Day rainfall,
13 was any of that rainfall more than the Harvey's
14 maximum rain that fell in each of the three
15 watersheds?
16 A. For the storm total? For the four-day or
17 two-day or what time period?
18 Q. For any of the time durations.
19 A. I don't believe so, but I would -- I would
20 need to look at the Tax Day numbers.
21 Q. Okay. I'll get -- I'm going to get back to
22 those.
23 Now, is it your understanding on Tax Day
24 that water exceeded government-owned land?
25 A. It's my understanding that water exceeded

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1 government-owned land in Addicks reservoir only.

2 Q. Now, if we look at page 16 of your report,
3 Plaintiffs' Exhibit 201, this is where you kind of
4 did a summary of the Addicks and Barker reservoirs;
5 is that -- is that correct?
7 Q. And you documented that the reservoirs
8 impounded 388,726 acre-feet of water; is that
9 correct?
11 Q. And you -- did you document that that amount
12 of water would fill NRG stadium 187 times with the
13 impounded water?
15 Q. And then did you document that widespread
16 flooding of homes and streets occurred within the
17 pools upstream of Addicks and Barker reservoirs?
18 A. Yes.
19 Q. And then you made a point about you said,
20 "Thankfully, only a few minor storms after -- there
21 were only a few minor rainstorms in the watersheds
22 after Harvey, allowing the reservoir levels to drop
23 below critical elevations."
25 Q. Explain to us this issue or concern with

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1 other or multiple rainstorms.

2 A. Right.
3 So Harvey happened at the end of August.
4 We were still in hurricane season, and we had been
5 hit by tropical storms and hurricanes in September.
6 As a matter of fact, two weeks after Harvey,
7 Hurricane Irma was coming up through the Caribbean
8 and turned and went to the State of Florida. And we
9 also had tropical storms and hurricanes in the
10 southern Gulf of Mexico in the weeks following
11 Harvey, and so we were very fortunate that we did not
12 have additional heavy rainfall over the Addicks and
13 Barker watershed as the Corps was trying to evacuate
14 the pools behind the reservoirs or behind the dams.
15 Q. You also wrote the immediate final report for
16 Harris County Flood Control District, also in
17 conjunction with Steve Fitzgerald for the Tax Day
18 event; is that correct?
20 MR. VUJASINOVIC: May I approach the witness,
21 your Honor?
22 THE COURT: Yes.
23 Q. BY MR. VUJASINOVIC: I'm going to hand you
24 Exhibit DX294. Do you recognize DX294?
25 A. Yes.

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1 Q. And will you tell the Court what that is?

2 A. Again, this is the report that we do after
3 significant flooding events in Harris County. This
4 is the final, again, of three, so there was a first
5 and a second, and this is the third and final report
6 dealing with the April 2017/2018 -- I'm sorry, April
7 17/18, 2016, rainfall and flood, which we kind of
8 termed the Tax Day flood.
9 Q. Okay. And on page 9 you talked about what
10 happened with Addicks and Barker during that event;
11 is that correct?
12 MS. TARDIFF: Your Honor, can we deal with
13 the admission of the document?
15 MS. TARDIFF: Can we deal with the admission
16 of the document?
17 MR. VUJASINOVIC: Thanks for reminding me.
18 Judge, we offer in evidence Exhibit
19 DX294.
20 MS. TARDIFF: No objection.
23 evidence.)
24 Q. BY MR. VUJASINOVIC: And so for Addicks, did
25 you record what percentage of government-owned land

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1 the storm waters occupied?

2 A. Yes.
3 Q. How much?
4 A. It was 93 percent of government-owned
5 land -- government-owned land in Addicks.
6 Q. Okay. Did you record in Addicks whether pool
7 levels resulted in flooding of any streets adjacent
8 to the reservoir lands?
9 A. Yes, under the reservoir, under the Addicks
10 reservoir section.
11 Q. Can you read what you said? This says,
12 "Historical pool levels," and then read on.
13 A. "The historical pool levels in Addicks
14 reservoir resulted in the flooding of some streets in
15 one subdivision adjacent to the reservoir lands, as
16 well as the complete closure of Highway 6, North
17 Eldridge Parkway, and Clay Road."
18 THE COURT: Mr. Vujasinovic, what is the
19 number of this exhibit?
20 MR. VUJASINOVIC: DX294, your Honor.
21 Do you need me to wait for a moment.
22 MS. TARDIFF: I think it's 295.
24 MS. TARDIFF: I think it's 295, sir.
25 THE COURT: I was trying to locate it. That

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1 was my problem.
2 MR. VUJASINOVIC: Do we need to clarify that,
3 because what I have says DX294.
4 THE COURT: Would you give me a moment,
5 please?
7 That helps. Thank you.
8 MS. TARDIFF: I think there may be two copies
9 marked on the Defendant’s Exhibit list. They're
10 probably the same report. I think 295 is the cleaner
11 copy.
12 THE COURT: Say it again.
13 MS. TARDIFF: I apologize, your Honor.
14 I believe we may have two copies of this
15 marked on Defendant’s list, 294 and 295. 295 is the
16 better copy. We think it is a better copy for the
17 record.
18 THE COURT: Okay. We'll take it as DX295.
19 Now, what do we do with the exhibit? I
20 have to make some adjustments. Give me a moment.
21 MR. VUJASINOVIC: Yes, Judge. Sure.
22 THE COURT: Shall the Court admit DX295?
23 MR. VUJASINOVIC: I take them for their word
24 that it's the same.

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3 evidence.)
4 MR. VUJASINOVIC: All set, your Honor?
5 THE COURT: Yes.
6 MR. VUJASINOVIC: Thank you.
7 Q. And then did you document the percent that
8 Barker reservoir occupied government-owned land in
9 Tax Day?
10 A. Yes.
11 Q. And?
12 A. Part of me wonders, looking at this, if those
13 two figures are not correct for this report.
14 Q. Because you told us that Addicks --
15 A. Right.
16 Q. -- exceeded government-owned land, and here
17 it says Barker had 102.5, which would exceed
18 government land; correct?
19 A. Correct.
20 Q. Okay. Well, in any event, during Tax Day,
21 the water got either right on and just across
22 government-owned land really in both reservoirs; is
23 that correct?
24 A. I can -- I can say for certainty with
25 Addicks.

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1 Q. Okay. And then in Barker, you said here in

2 your report, "Water levels were close to the top of
3 the some storm sewer inlets and a few adjacent
4 subdivisions, but there were no flooded streets." Is
5 that accurate to your recollection?
6 A. That's accurate to my knowledge, yes.
7 Q. Now, if you will turn to the rainfall
8 intensity report in your Tax Day report and go to
9 page 5 and 6. That's got the Barker and Addicks
10 reservoirs in it. Just let me know when you're
11 there, or I guess you're just looking at it.
12 So the four-day in Barker, the four-day
13 rainfalls was about 11 to 13 inches; is that correct?
15 Q. And in Addicks, the four-day ranged from --
16 it looks like -- can you read it?
17 A. It looks like that low of around 10.4, and a
18 high -- I believe that's 19.1.
19 Q. So 15 average, somewhere in there?
20 A. Yeah, 15 to 16.
21 Q. Okay. And so that's what it takes to really
22 get the water right up on, and in the case of
23 Addicks, just over government-owned land; is that
24 correct?
25 A. Based on the hydrologic setting of this

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1 particular event, yes.

2 Q. Okay. And then if we wanted to look at the
3 one-hour time frames, would that be useful in
4 analyzing the issue of local drainage?
5 A. Yes.
6 Q. All right. So one hour for Barker. Give the
7 Judge the range.
8 A. The low would be 2.2, so about 2 inches up to
9 about 4, 4-1/2 --
10 Q. And what would you say --
11 A. -- for Addicks.
12 Q. One hour for Addicks?
13 A. Yeah, for Addicks, the low was about 3-1/2 up
14 to about 4-1/2; 3-1/2 to 4-1/2 for the one-hour
15 totals.
16 Q. Okay. All those figures are more than what
17 we got in Harvey; is that correct?
18 A. The maximum total for Harvey for 1 hour was
19 6.8, but it wasn't necessarily in Addicks. The 6.8
20 was at that gauge down on Clear Creek that recorded
21 the 47.4.
22 Q. Would you say generally the one-hour and
23 12-hour rainfall here on this chart for Barker and
24 Addicks was more than the one-hour and 12-hour for
25 Harvey?

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1 A. I would have to look back at the Harvey

2 report.
3 Q. Okay. Let's pull that up.
4 A. So you're asking about the six-hour for
5 Harvey?
6 Q. One-hour, and then like the 6 and 12 hour.
7 A. So for Barker for the Tax Day storm, the
8 one-hour does exceed Harvey. The 4.3 exceeds the 3.4
9 of Harvey for the one-hour for Barker.
10 For Addicks, for one hour, the 4.5
11 exceeds the 3.0 for Addicks. So, yes, for one hour
12 in Addicks and Barker, Harvey exceeded Tax Day.
13 Q. I'm going to move on, because I'm told we're
14 in a time crunch, so let's look at Exhibit DX294.
16 Q. Do you recognize this page with that flood
17 timeline on it from the Harris County District's
18 website?
19 A. Yes.
20 THE COURT: The number again,
21 Mr. Vujasinovic, is what?
22 MR. VUJASINOVIC: DX684.
23 THE COURT: Say again?
24 MR. VUJASINOVIC: DX684.

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1 Q. BY MR. VUJASINOVIC: And this is where the

2 District has a timeline here recounting all the
3 historical storms in Harris County; is that correct?
4 A. I would consider this a partial list of the
5 historical storms, yes.
6 Q. Okay. Because I guess there's even more; is
7 that correct?
8 A. That is correct. These are -- these are some
9 of the bigger ones.
10 Q. Okay. And then a lot of the entries will
11 tell us what the average inches were, sometimes the
12 maximum inches; is that correct?
14 Q. Has the district done a study that if Allison
15 rained over Barker, would water have exceeded
16 government-owned land?
17 A. I believe as part of the Tropical Storm
18 Allison recovery project that was completed after
19 2001, the Tropical Storm Allison rainfall was shifted
20 out into the Addicks/Barker/Cypress Creek watershed,
21 and I believe the findings of that report is that the
22 water would have gotten very close if not exceeded
23 government-owned land.
24 Q. Okay. In your deposition, did you testify
25 that the conclusion was it would have exceeded

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1 government-owned land by a significant amount?

2 A. I could have said that, yes.
3 Q. Would you agree with that?
4 A. Yes, for Allison.
5 Q. Okay. If other larger Harris County storms
6 had happened to rain over the Addicks/Barker
7 watersheds, it's likely any number of those may have
8 caused water to exceed government-owned land; is that
9 correct?
10 MS. TARDIFF: Objection; calls for
11 speculation.
12 THE COURT: I'm sorry. Say again.
13 MS. TARDIFF: Objection; calls for
14 speculation.
15 THE COURT: Mr. Lindner, you may answer if
16 you know the answer of your own personal knowledge.
17 THE WITNESS: In modern times, and what I
18 mean by modern times, we have reliable rainfall
19 records, I don't think so. I don't think water would
20 have exceeded government-owned land.
21 Q. BY MR. VUJASINOVIC: What about, like,
22 Claudette? Didn't that drop like 43 inches?
23 A. It did, but it was in a very, very local
24 area, very small.
25 Q. Let me ask you quickly about probable maximum

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1 precipitation. Are you familiar with that term?

2 A. Yes.
3 Q. And is it correct that for all the rainfall
4 durations in the Addicks/Barker watersheds, PMP was
5 never reached?
6 A. For Harvey?
7 Q. Yes, sir.
8 A. No, the four-day PMP was not reached in the
9 Addicks and Barker watersheds.
10 Q. And it was about 60 to 70 percent of PMP;
11 correct?
13 Q. And not even the Harris County maximum, 47.4,
14 that did not even exceed PMP, did it?
15 A. No, that is correct. It was about 95
16 percent.
17 Q. Let me hand you DX683.
19 Q. And do you recognize that from the District's
20 website?
21 A. Yes.
22 Q. And in here the District talks about what
23 happened during Harvey, including upstream flooding
24 from the pools; is that correct?
25 A. Yes.

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1 Q. Okay. And then after you all talked about

2 all that, is it correct that the District said
3 that --
4 THE COURT: Mr. Vujasinovic, this isn't even
5 in evidence, so you can't read from the document.
6 MR. VUJASINOVIC: I'm sorry.
7 Ms. Tardiff.
8 MS. TARDIFF: No objection to the admission,
9 though.
11 MS. TARDIFF: We have no objection to the
12 admission of the exhibit if it is so moved.
13 THE COURT: We haven't gotten there yet.
14 MR. VUJASINOVIC: I will go ahead and move to
15 admit DX683.
16 Well, Judge, let me -- I'll --
17 Did the District -- sorry, Judge.
18 THE COURT: Go ahead.
19 Q. BY MR. VUJASINOVIC: This is from the
20 District; is that correct?
21 A. This is from the District's website.
22 Q. Talking about the Harvey, the upstream
23 flooding, those sorts of issues?
24 A. Yeah, it looks like it talks about what
25 happened in Harvey upstream, it talks about the

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1 downstream. A little bit about the history, maybe,

2 of Addicks and Barker, yeah.
3 MR. VUJASINOVIC: Judge, we offer DX683 at
4 this time.
5 MS. TARDIFF: No objection, your Honor.
8 evidence.)
9 MR. VUJASINOVIC: I want to make sure I had
10 DX684 admitted, your Honor.
11 THE COURT: No.
12 MR. VUJASINOVIC: We move to admit Exhibit
13 DX684.
14 THE COURT: Could you establish the
15 foundation for it, please?
16 MR. VUJASINOVIC: That's the --
17 THE COURT: I understand.
18 From Mr. Lindner.
20 Q. As we chatted, Mr. Lindner, DX684 has the
21 timeline of the history of Harris County storms that
22 we talked about?
23 A. Yes.
24 Q. And it's accurate to your knowledge?
25 A. To my knowledge, yes.

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1 MR. VUJASINOVIC: Okay. We move to admit

2 DX684.
6 evidence.)
7 MR. VUJASINOVIC: And Judge, I forgot. Has
8 DX683 been admitted?
9 THE COURT: Yes.
10 Q. BY MR. VUJASINOVIC: And in that document,
11 sir, after talking about issues, including the
12 upstream flooding from the pool, the Corps said,
13 "While the Corps' design of the reservoirs
14 anticipated this type of event..."
15 Do you see that?
16 A. Yes.
17 Q. You agree with that statement, don't you?
18 A. I would agree with that, yes.
19 Q. Okay. The last thing I'm going to ask you
20 about is you've worked at the District for -- since
21 2004. Do you feel like you have a good feeling for
22 what our community knows and what they don't know
23 when it comes to flooding issues?
24 A. Yes.
25 Q. And you -- do you -- you got your deposition

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1 there?
2 A. Yes, sir.
3 Q. Okay. Do you think homeowners in the Addicks
4 and Barker reservoirs understood the potential of
5 their homes being inundated by the Addicks and Barker
6 pools before Harvey?
7 A. No.
8 Q. And the FEMA floodplain maps don't show any
9 risk of inundation by those reservoirs, do they, sir?
10 A. They do not.
11 Q. And you do not recall ever seeing upstream
12 inundation maps from the Corps before Harvey, do you?
13 MS. TARDIFF: I was going to object on
14 foundation for some of these questions.
15 THE COURT: Well, all right.
16 Mr. Lindner, you may answer of your own
17 personal knowledge.
18 THE WITNESS: Inundation maps before Harvey,
19 I -- there were inundation maps before Harvey.
20 Q. BY MR. VUJASINOVIC: Didn't you testify that
21 you do not recall ever seeing upstream inundation
22 maps from the Corps before Harvey at page 150 of your
23 deposition?
24 A. Whatever there were -- they might not be
25 considered inundation maps, but they were ground

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1 elevation maps of what certain levels of the pool

2 would inundate at that level, so it may not be in the
3 traditional sense, an inundation maps, but there were
4 ground elevation maps available, yes. And that was
5 part of the Addicks/Barker emergency coordination
6 team. They put those together.
7 Q. You remember the Sunday, August 27 news
8 conference you did?
9 A. I did media that day.
10 Q. So you were told -- that day you were told
11 that water was going to leave government-owned land;
12 is that right? And then you shifted your focus from
13 the --
14 A. Yes. Yes.
15 Q. And that was based on some stuff the Corps
16 sent you; right?
18 THE COURT: I'm sorry, Ms. Tardiff.
21 Q. BY MR. VUJASINOVIC: Okay. What was the
22 source of the information that I just asked you
23 about?
24 A. The source of the information for water
25 leaving government land?

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1 Q. Yes.
2 A. The Corps of Engineers.
3 Q. Okay. And did you do a press conference at
4 that point?
5 A. There was a press conference. I believe it
6 was in the late afternoon or early evening, which
7 discussed the impact, the potential impact of -- of
8 upstream flooding.
9 Q. Okay. And in that conference were you -- who
10 were you talking to, a bunch of reporters?
11 A. Yes.
12 Q. Okay. Pretty sophisticated audience?
13 A. Of reporters?
14 Q. I guess some might be here. I don't know.
15 Let's just say reporters.
16 A. Yeah.
17 Q. At least there were no lawyers in that room;
18 huh?
19 Okay. Now during that press conference,
20 were you trying to explain what in the world Addicks
21 and Barker even was to these people?
22 A. I was trying to explain that to everybody.
23 Q. Okay. And in your mind, did you feel that
24 most people did not know what those reservoirs were
25 and what was happening there?

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2 Q. Did you feel like most people in Harris
3 County didn't even know they existed?
5 Q. And you did not -- did you believe that most
6 people did not know the potential for water to leave
7 government-owned land and flood upstream homes?
9 Q. And did your audience keep asking you
10 questions about how the releases were going to flood
11 upstream properties?
12 A. Yes.
13 Q. They didn't understand. They were confused;
14 is that right?
15 A. That is right.
16 Q. And this is like in -- Harvey had already
17 started raining; correct?
18 A. That was Sunday evening. This was after a
19 significant amount of rain had already fallen.
20 Q. And you had seen this same confusion among
21 the public during Tax Day about the same issue;
22 correct?
23 A. To a degree. It was not nearly as bad for
24 Tax Day.
25 Q. And you basically said for people to -- you

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1 basically said in that conference, you said, "Pack

2 your cars tonight; leave in the morning if you can,"
3 and you tried to explain where the areas were; is
4 that correct?
8 Q. BY MR. VUJASINOVIC: Did you tell people
9 anything about how they should try to maybe save a
10 couple things from getting flooded from the pools?
11 A. We -- I believe the statements were we told
12 the subdivisions that we called, if I'm remembering
13 correctly, I can't remember if that was Sunday night
14 or Monday morning when we called the subdivisions, we
15 told those individuals that they would be impacted by
16 water, and they should take appropriate action.
17 Q. And did you tell everybody it was voluntary
18 and not mandatory?
19 A. Yes, it was voluntary. This wasn't an
20 evacuation order.
21 Q. Let me hand you Plaintiffs' Exhibit 202.
23 Q. Do you know what that is?
24 A. Yes, these are high watermarks that the
25 Harris County Flood -- the Harris County Flood

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1 Control District has taken through many storm events

2 going back to roughly -- reliable marks going back to
3 the '80s or so.
4 Q. Including Harvey?
5 A. Correct, yes.
6 Q. Including many of the areas that are relevant
7 to the Addicks and Barker area; is that correct?
9 MR. VUJASINOVIC: Judge, we offer Exhibit 202
10 at this time.
11 MS. TARDIFF: Your Honor, I think this may
12 also be a Joint exhibit. We're trying to look at the
13 list right now.
14 MR. VUJASINOVIC: It is JX200, your Honor.
15 THE COURT: Ms. Tardiff, do you have a view
16 as to admissibility or not?
17 MS. TARDIFF: No objection to admissibility.
18 THE COURT: Exhibit JX200 is admitted.
20 evidence.)
21 MR. VUJASINOVIC: Thanks for your time.
22 I'll pass the witness at this time.
23 THE COURT: Thank you, Mr. Vujasinovic.
24 Ms. Tardiff.
25 MS. TARDIFF: Are you ready for me, your

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1 Honor?
2 THE COURT: Yes.
3 MS. TARDIFF: Okay.
4 Good afternoon, Mr. Lindner.
5 CROSS-EXAMINATION
6 BY MS. TARDIFF:
7 Q. I want to ask you a few follow-up questions
8 on your background to start.
9 You indicated you interned at Channel 11
10 news for two years; is that correct?
12 Q. Were you there during Tropical Storm Allison?
13 A. I was.
14 Q. You indicated that one of your first jobs at
15 Harris County Flood Control District was on the flood
16 watch team. Can you describe how that team operates
17 during a flood event or storm event?
18 A. Yes. So the flood watch team, which we now
19 call the flood operations team, it's a group of
20 individuals that on a normal day, their job is
21 something different, so they're engineers or -- or
22 other staff that we have, and when we have heavy
23 rainfall and flooding, these individuals come into a
24 room at the Flood Control District and monitor
25 rainfall and water level conditions.

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1 And then there's also a team of us that

2 liaisons with the Harris County Office of Emergency
3 Management, so we sit in the Emergency Operations
4 Center with the various agencies that respond to
5 floods.
6 Q. And can you give us an estimate since you
7 started at Harris County Flood Control District in
8 2004, how many times the flood watch team or flood
9 watch operations team has been activated?
10 A. I would say approximately 50 to 60 times.
11 Q. And is that group only activated -- well,
12 when is that group activated?
13 A. It's a little bit of a judgment call, you
14 know, depending on the conditions that we're facing,
15 but generally speaking, any time we're expecting or
16 have exceeded four inches of rain at some part of the
17 county.
18 Q. And you described for us that you're
19 currently the manager of the Hydrologic Operations
20 Division; is that correct?
22 Q. Okay. And I have you testifying that that
23 division runs the automated gauge system?
24 A. Yes.
25 Q. Okay. And can you tell us what other

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1 responsibilities that division has?

2 A. So not only do we -- we run the gauge
3 network, which is both rainfall and stage, which
4 shows how high the water is rising or falling in the
5 creeks and bayous, but we also take flow
6 measurements, which are discharge measurements, so
7 this shows the volume of water that is moving down
8 the channels, so we have to go out in the storm and
9 actually collect these from the bridge. We put a
10 boat tethered to a rope and drop it over the side of
11 the bridge, and we use acoustic Doppler radar to get
12 the flow, so how much water is actually passing
13 through that point at that period of time. So it's
14 very important when you're looking at forecasting and
15 how much water is moving downstream.
16 We also run the website. My group also
17 runs the -- the Harris County FWS website, which you
18 saw on the screen earlier, and we do a lot of work
19 with trying to upgrade that website. We do a lot of
20 public outreach on flooding, what floodplains mean,
21 explanations of flooding, which include, you know,
22 flooding potentially from the Addicks and Barker
23 reservoirs, and what people can do, what residents
24 can do during flooding, not limited to acquiring
25 flood insurance.

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1 Q. And is that public outreach and public

2 education a significant part of your role right now
3 at Harris County Flood Control District?
4 A. It is a very significant part of my role,
5 yes.
6 Q. Okay. Does your division, and do you
7 personally also work with other emergency management
8 partners?
9 A. Yes.
10 Q. And you mentioned Office of Emergency
11 Management. What other federal and state agencies do
12 you work with in that capacity?
13 A. So we work with the USGS, the United States
14 Geological Survey, the National Weather Service, the
15 West Gulf Forecast Center, and of course the Corps of
16 Engineers, numerous local agencies, so the Harris
17 County precincts, the Harris County Fire Marshal's
18 Office, the Harris County Sheriff's Office, and we
19 also work with -- in the aftermath or during an
20 event, especially in the Emergency Operations Center,
21 we're working with volunteer organizations and your
22 local private industry, so HEB, Walmart, Comcast, to
23 help with shelter operations during that.
24 Q. And can you describe the Flood Control
25 District's relationship with the Corps of Engineers?

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1 A. So I think there's a relationship -- there's

2 a flood control relationship, and then there's my
3 relationship, and so the Flood Control District
4 relationship is a little bit different. So their
5 relationship is more on the designing, the
6 engineering, the completion of federal projects that
7 we cooperate with and support the Corps of Engineers
8 within Harris County.
9 My particular relationship and role with
10 them is more with the Addicks/Barker Emergency
11 Coordination Team, so that's where I have done the
12 majority of my work with them over the years as with
13 that particular role.
14 Q. And can you describe for us what the
15 activities are that you've been participating in as
16 an ABEC member?
17 A. Yeah, so there is monthly or quarterly
18 meetings, and this team consists of the Harris County
19 Flood Control District, Harris County Office of
20 Emergency Management, Fort Bend County Emergency
21 Management, Harris County Precinct 3.
22 And really the role is to make sure that
23 we're all as close as we can be on the same page when
24 things like Tax Day and Harvey happen. So there is a
25 lot of lead-up documentation that needs to be done,

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1 so when does the first home flood in Addicks? When

2 does the first street flood in Addicks? When does
3 the same thing happen in Barker? When does Highway 6
4 go underwater?
5 So we develop these trigger points with
6 elevations so we had some idea when the pool was
7 rising, of when these structures were going to be
8 impacted, because that results in a lot of
9 coordination and effort with respect to
10 transportation partners. If you're going to close
11 Highway 6, that's a TXDOT. We have to tell TXDOT, so
12 they have to go out and barricade Highway 6 and
13 prevent traffic from going down it.
14 So the initial part of that, of that
15 team was to develop those trigger points, and then
16 we -- that team also does a lot of drills and
17 tabletop exercises to go through various scenarios of
18 what would happen if -- if there was a dam failure,
19 there was the potential for a dam failure, if there
20 was flooding upstream in the pools. We've done, I
21 believe, all of those exercises.
22 Q. Okay. I want to circle back and just ask a
23 few more background questions about the Harris County
24 Flood Control District to make sure we have an
25 understanding of what it is. So let me start there.

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1 What is the Harris County Flood Control

2 District?
3 A. So it is a special purpose district that was
4 created, I believe, in 1937 as a result of the
5 December 1935 flood. And our main mission is to
6 devise flood damage reduction projects in Harris
7 County.
8 Q. And is a part of that mission accomplished by
9 partnering with the Corps of Engineers?
10 A. Yes.
11 Q. And is Addicks and Barker, is that project
12 one of the projects that you've partnered with the
13 Corps on?
14 A. I do not know if that was something the Flood
15 Control District -- that would have been done back in
16 the 1940s. I don't know.
17 Q. Is Harris County Flood Control District
18 currently partnering with the Corps of Engineers on
19 flood risk reduction projects throughout Harris
20 County?
21 A. Yes.
22 Q. And within the Harris County government, who
23 does Harris County Flood Control District report to?
24 A. We report to the Harris County Commissioners
25 and County Judge.

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1 Q. And are those elected officials?

2 A. Yes.
3 Q. And are they the governing body for all of
4 Harris County?
5 A. Correct, yes.
6 Q. All right. I want to turn back and ask you a
7 few follow-up questions about the Flood Control
8 District's age network.
9 You are the manager of that network; is
10 that correct?
11 A. Yes.
12 Q. Okay. And how long have you been the manager
13 of that network?
14 A. Since 2009, early 2009.
15 Q. Okay. And can you describe again that
16 network for us? In particular, I think you mentioned
17 both rainfall gauges and stage gauges, and maybe
18 explain the difference to us.
19 A. Yes, so the rainfall gauges are what we call
20 a tipping bucket, and it is a mechanism that every
21 time it rains .004 of an inch, it tips, sends an
22 electrical current through a radio frequency, and it
23 shows up on the web page. So the rainfall numbers
24 will go up by every .004 of an inch.
25 The stage data, we have various sensors.

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1 We have three different sensors that we collect stage

2 data, so we have a radar unit, what we call a
3 pressure transducer, and a bubbler. The pressure
4 transducer and the bubbler are down in the channel,
5 and they get submerged by water, and the pressure
6 that is applied to the diaphragms sends an electrical
7 current and it gets translated. And the radar,
8 obviously, is above the water attached to the side of
9 the bridge that sends a radar beam down to the
10 surface of the water and shows the distance. And so
11 our stage values report every tenth of a foot of
12 increase or decrease of the water level.
13 THE COURT: I'm sorry, say again.
14 How many feet.
15 THE WITNESS: A tenth of a foot, one-tenth of
16 a foot up or down.
17 And we also do have a handful, I would
18 say about 12 sites. We have what we call full
19 weather, and that would include temperature,
20 humidity, wind, wind speed, direction, that type of
21 stuff.
22 Q. BY MS. TARDIFF: And how does Harris County
23 Flood Control District use the data that's collected
24 from your gauge system?
25 A. So the gauge system is really our primary

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1 line of defense. Once we start getting the rainfall,

2 the real key for us is the rainfall rate. How -- how
3 intense the rain is in the time period. So, you
4 know, we really pay attention to those 15, 30,
5 30-minute, and then one-hour rainfall rates, and this
6 system is very good.
7 As a matter of fact, right now as I'm
8 sitting here, I'm getting messages to my phone
9 because it's raining like that out there. And so we
10 get that information to our cell phones, so it alerts
11 us that we are seeing those types of rains, so we
12 need to go and start getting data.
13 And, of course, as the rain happens, you
14 want to always respond, and we have a portion of our
15 website called a channel status, which is a green,
16 yellow, red. And yellow means it is within three
17 feet of bank full, and then red means it's
18 over-banked, and so it's a quick snapshot of where
19 we're having issues, so we can look very quickly and
20 determine where we're having concern.
21 Q. And have you found that that channel status
22 information, is that helpful for the media?
23 A. Yeah, it was actually developed at the
24 request of the TV media.
25 Q. Let's -- I'm going to have us turn to an

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1 exhibit to talk through a few more questions about

2 the gauge network.
3 Can you turn to Defendant’s 682, and
4 someone's going to bring you a copy.
6 Q. We'll also get it up on the screen.
7 And Mr. Lindner, can you take a look at
8 what we have marked as Defendant’s 682 and tell me if
9 you are familiar with this document?
10 A. Yes, I am.
11 Q. Can you identify it for us?
12 A. Yes, this is a -- one of many Harvey
13 presentations that I've been giving post Harvey.
14 Q. About how many Harvey presentations have you
15 given post Harvey?
16 A. Hundreds.
17 Q. And does this particular presentation include
18 information that you or Harris County Flood Control
19 District has gathered about Harvey?
20 A. Yes.
21 Q. Okay.
22 MS. TARDIFF: Your Honor, we would move to
23 admit Defendant’s Exhibit 682.
24 MR. VUJASINOVIC: No objection.

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2 evidence.)
3 Q. BY MS. TARDIFF: Let's turn to the second
4 page of the slide presentation. It is not numbered,
5 but it is captioned "Harris County Watersheds."
6 Do you have that in front of you?
7 A. Yes.
8 Q. The Court saw another map of the watersheds
9 before, but does this map accurately show the
10 watersheds in Harris County?
11 A. Yes.
12 Q. And how many watersheds are there in Harris
13 County?
14 A. Twenty-two.
15 Q. And can you describe for us what this
16 particular slide depicts with respect to the
17 watersheds?
18 A. Yes, so a watershed is just the area that
19 when it rains, when rain falls over a certain area,
20 it rains over that particular creek or bayou, and so
21 the color areas indicate all of that land area that
22 would drain to that particular device, so if you get,
23 for example, White Oak Bayou, everything that kind of
24 falls in that kind of peach color would drain to
25 White Oak Bayou, which would eventually drain to

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1 Buffalo Bayou, and that's the relationship there.

2 And so the arrows on here designate the
3 direction at which water flows down the watersheds.
4 So most of our water in Harris County drains from
5 west to east. There's a little bit or a few
6 exceptions in the southeast part of the county where
7 the water actually drains north to the Houston ship
8 channel, but the majority of the water drains from
9 west to east.
10 Q. And using this map, can you describe for us
11 the direction of the flow from the Addicks reservoir
12 watershed and the Barker reservoir watershed?
13 A. So the direction of flow in Addicks is kind
14 of west-northwest to east-southeast, and it would be
15 the same thing for Barker.
16 Q. All right. I'm going to have you turn now to
17 what is the next-to-the-last page of this slide show.
18 The caption on it is "Gauge Network Expansion."
19 A. Yes.
20 Q. Are you familiar with this map?
21 A. Yep.
22 Q. And what does it show?
23 A. This shows our network, the gauges are from
24 March of 2017, and these were the areas that we were
25 going to be expanding into, and this is an old map,

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1 so all of this expansion has been completed.

2 Q. Okay. And let's step back. Are you familiar
3 with the expansion of this network over time?
4 A. To a degree, yes.
5 Q. Can you describe what you know about the
6 expansion of the network over time?
7 A. So the network was started in 1981 with 12
8 gauges, and we had Hurricane Alicia back in 1983, so
9 20 years after the 12 gauges were put in, it was
10 tested with Hurricane Alicia. And the folks back
11 then made a decision that it performed to their
12 satisfaction and they began expansion.
13 Generally speaking, every time we have a
14 big rain event or flood event, we have gauges added
15 to the network, especially after Tropical Storm
16 Allison back in 2001, we had significant expansion of
17 the network to the point where the network had become
18 heavily burdened by the radio traffic. So when you
19 get a big rainfall event, there's tremendous amounts
20 of radio traffic going over these RF frequencies.
21 And so we realized that that's what's happening
22 before Hurricane Ike, and then Hurricane Ike resulted
23 in a lot of damage to this network, and so we
24 transitioned this to a whole new
25 reporting -- reporting-type technology, which allows

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1 us to send a lot more data over a smaller packet, and

2 so we're now able to once again expand the network.
3 And for all intents and purposes, Harris County
4 itself is pretty well covered with gauges, and that
5 is why we're looking at a more regional-type approach
6 now to the system.
7 Obviously, in the northern part of the
8 county, water comes from the San Jacinto River from
9 outside Harris County. In addition to that, we have
10 a lot of residents that now live outside of Harris
11 County that work in Harris County, and so the
12 expansion into our surrounding counties -- the
13 expansion into the surrounding counties in a more
14 regional type of approach is the way we are going.
15 Q. And does that include expansion of the
16 network into the Fort Bend County?
17 A. That is correct, yes.
18 Q. And you mentioned some expansion outside the
19 county because water flows across the county
20 boundaries; is that correct?
21 A. That is correct. Everything you see on this
22 particular map in Waller County, all of that comes to
23 Harris County.
24 Q. And Waller County on this map is to the west?
25 A. To the west, yes.

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1 Q. Okay.
2 A. And those areas that are circled up here to
3 the north in Montgomery County, all of that water
4 comes to Harris County. That water comes to the San
5 Jacinto/Lake Houston area.
6 Q. So does expanding the network outside of
7 Harris County help you with forecasting?
8 A. Yes.
9 Q. How so?
10 A. It gives us rainfall data and stage data in
11 areas that we currently do not have it.
12 Q. On this map, the red triangles represent
13 Harris County Flood Control District gauges; is that
14 correct?
16 Q. All right. Then can you explain where we
17 have numbers that have an underline on it, what that
18 means on this map?
19 A. So the numbers underlined, those are
20 locations where the Harris County Flood Control
21 District is partnered with the USGS, and so the USGS
22 actually puts in the water level measuring device and
23 then we tie our gauge into that. The main reason why
24 we have to tie into the USGS is because the USGS will
25 only send a stage report every one hour. And so a

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1 lot of our watersheds, waiting one hour is too long

2 because they respond very strong, very quickly. And
3 so we can still get our realtime reports every two
4 minutes or so, and we don't have to wait for the USGS
5 to report it every one hour. So that's why we
6 co-locate with them, and another way of looking at it
7 is we kind of sniff their data.
8 Q. When you say co-located, is there just a
9 single gauge at that location that both USGS and
10 Harris County Flood Control District are pulling data
11 from?
12 A. For the most part, yes.
13 In a lot of cases, we actually put our
14 equipment inside of their box, and in other
15 locations, there's just not enough room, so we have
16 to put a box right next to it, and we tie in with a
17 cord.
18 Q. And you also mentioned earlier the flood
19 warning system; is that correct?
20 A. Yes.
21 Q. So let's turn to -- we're going to go two
22 pages back in this slide presentation. And this is
23 going to be a map that looks very familiar to one of
24 the demonstratives that Plaintiffs marked, but is
25 this a visual or screenshot from your website of the

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1 flood warning system?

2 A. Yes.
3 Q. And Mr. Lindner, is this system set up to
4 allow the public to use it?
5 A. Yes, this is a public-facing website.
6 Q. And can you explain how the public can use
7 this flood warning system?
8 A. So when you -- when you pull up the page, you
9 will see exactly what you see here, so it
10 automatically defaults to the last 24 hours of
11 rainfall, and where we currently see the 0.00, you
12 will see a number of inches of rain that have
13 happened in the last 24 hours.
14 You can change that time scale by that
15 drop-down menu, so you can do, I believe, 15, 30, 1,
16 3, 6, 12, and then you can do a month and a year's
17 worth of rain.
18 And then if you click on the little icon
19 box, it will bring up a link that will take you to
20 the water level sensor, the stage sensor, and you can
21 see a graph of what the water level has done over the
22 past 24 hours. And, again, you can change that time
23 stamp if you want.
24 Q. And you mentioned you are receiving alerts
25 right now as we sit here. Are those alerts coming

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1 from the system?

2 A. Yes.
3 Q. And can landowners go in and set up to
4 receive an alert from a gauge near where they live?
5 A. The public cannot do that right now. We hope
6 to launch that in June of this year, I hope.
7 Q. Mr. Lindner, you spoke some about the
8 flooding history, and we saw the timeline of flooding
9 history that's on the public website. Do you recall
10 those questions?
11 A. Yes.
12 Q. And has flooding always been an issue here in
13 Harris County in the Houston area?
14 A. Yes.
15 Q. And why does the Flood Control District
16 provide information about the history of flooding in
17 this area on its public website?
18 A. I -- I think the reason why, and I'm speaking
19 just as my personal -- I don't know why the Flood
20 Control District, you know, what they put on their
21 website and what they don't, but my personal
22 reasoning would be flooding is our natural disaster
23 here. We have a -- a very transient population at
24 times, so we have a lot of people who move here from
25 other parts of the nation, and they don't always, I

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1 think, understand the risk that we have here when it

2 comes to flooding, nor the amount of rain that we can
3 get.
4 We can get tremendous amounts of rain in
5 a short period of time here, and you can really -- if
6 you look at it, you only see that along the Gulf
7 Coast of the United States, so when people move here
8 from other parts of the country, up from the Midwest
9 or the Northeast, maybe 5, 6, 7 inches of rain in an
10 hour, that could be two or three months worth of rain
11 in some of those areas. So we put that on there to
12 let people know, in my opinion, we -- we historically
13 had flooding, and flooding and tropical storms and
14 hurricanes is our natural hazard here.
15 Q. What are the other ways, besides information
16 posted on your website, that Harris County -- what
17 are the other ways in which Harris County Flood
18 Control District seeks to educate the public about
19 flood risk besides the website?
20 A. We do a lot of public meetings. We go to a
21 lot of homeowner association meetings, a lot of
22 meetings with different groups of people,
23 professional groups and luncheons and all that kind
24 of stuff. I personally myself do a lot of meetings
25 where I try to educate the residents of this region,

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1 you know, what the watersheds are, how the water

2 drains, where they can go to look at the flood
3 warning system, so in times like we're having this
4 week, you know where to go to look at how much it's
5 raining, to look at how high the water is getting,
6 and then of course to know are you -- are you in a
7 floodplain and are you not in a floodplain? And so
8 all of that is the stuff we work on, and of course,
9 we also do a lot with hurricane preparation, too.
10 Q. And do all residents of Harris County have
11 some flood risk?
12 A. Yes.
13 Q. And can you explain why you say that?
14 A. Everybody has a flood risk. Some residents
15 have a higher flood risk than others, but every
16 single resident in this county has a risk.
17 Q. Okay. And from a meteorological perspective,
18 what does the region that includes Harris County and
19 Fort Bend County, for that matter, why does this
20 region experience rainfall events that are
21 significant enough to result in flooding?
22 A. So some of it is our geography. We're
23 extremely flat here, so our elevation rises about a
24 foot per mile from the coast. So that's -- water,
25 when it falls, it wants to naturally sit where it

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1 hits the ground here, it does not want to run off.

2 So the Flood Control District and
3 drainage districts have come in and put in this
4 elaborate network of ditches and drainage ditches and
5 creeks and bayous to help expedite the flow of that
6 water to get out into the bay and the Gulf of Mexico.
7 The other thing is, we are in the
8 western Gulf of Mexico, and what I mean by western
9 Gulf, west of the Mississippi River. We have some
10 really big rainfall events, and what I mean by really
11 big rainfall events is we get very large rainfall
12 totals over a very large area, and that's not always
13 the case in other parts of the country where you can
14 still get the totals, but you don't get them over
15 such a large geographic area.
16 And so, as a matter of fact, in the
17 Harvey report, the Texas A & M, the state office of
18 the State Climatologist went back and looked at all
19 of the top five or six worst rainfall events, largest
20 rainfall events in American history, and all of them
21 but one, I believe, is west of the Mississippi River.
22 So we're very susceptible here in Texas and Louisiana
23 to really big rainfall events.
24 Q. And for this region, are hurricanes or
25 tropical storms the only types of storm in this

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1 region that are capable of generating enough rainfall

2 to result in flooding of streets?
3 A. No.
4 Q. And how about the flooding of homes?
5 A. No.
6 Q. You've described for us some of the ways that
7 Harris County Flood Control District seeks to educate
8 and inform the public about flood risk, so let me ask
9 you a few more questions.
10 Does the District's communication to the
11 public about flood risk include providing information
12 about flood insurance?
13 A. Yes.
14 Q. And what is the District's message to the
15 public about flood insurance?
16 A. Everybody should have flood insurance.
17 Q. And why is that the District's message?
18 A. Because everybody has a flood risk.
19 Q. Let me have you turn to Defendant’s 695
20 quickly.
21 A. In here?
22 Q. It may be in that -- yes, it's in that
23 notebook, sir.
25 Q. And do you recognize this document or this

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1 web page?
2 A. I -- yes.
3 Q. And is this information that is posted on the
4 Harris County Flood Control District website?
5 A. Yes.
6 MS. TARDIFF: We would move to admit
7 Defendant’s 695.
8 MR. VUJASINOVIC: No objection, your Honor.
11 evidence.)
12 Q. BY MS. TARDIFF: And Mr. Lindner, in the
13 second full paragraph, it states, "Just because your
14 home is not mapped within the 100-year floodplain
15 does not mean that you are free from the potential to
16 flood."
17 Do you see that language?
18 A. Yes.
19 Q. Can you explain what that means?
20 A. So floodplains are mapped from a creek or a
21 bayou, so that only shows the flooding potential from
22 a creek or bayou or river. It does not show the
23 flooding potential from the roadway street drainage
24 system or roadside ditch drainage system, so what we
25 call the primary drainage systems in this area.

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1 As a matter of fact, a large portion of

2 the number of homes that flood, flood outside of our
3 floodplain and flood from the primary drainage
4 system, the overwhelming flooding from that system.
5 Q. Can you turn to the next page of Defendant’s
6 695, and there is a map on the top with the caption
7 "Flood Education Mapping Tool." Do you see that?
8 A. Yes.
9 Q. And are you familiar with that tool?
10 A. Yes.
11 Q. And can you explain what that is and how it
12 works?
13 A. So this tool allows residents to put in their
14 address, and it will -- and you can turn on the
15 floodplains and determine if that address is inside
16 or outside of a floodplain. And these floodplains
17 are based on the FEMA flood rate insurance maps, so
18 it's the same map that FEMA produces, just a little
19 bit easier to review.
20 Q. Understood.
21 Is that, again, another way that Harris
22 County Flood Control District is working to help the
23 public to be informed about flood risk?
24 A. Yes.
25 Q. I want to turn and walk hopefully quickly

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1 through some prior storm events.

2 First of all, since joining Harris
3 County Flood Control District in 2004, have you
4 worked all of the major storms or flood events of
5 that have affected Harris County in some capacity?
6 A. I have.
7 Q. And does Harris County Flood Control District
8 gather information about storms that result in
9 flooding?
10 A. It depends on the degree of flooding, yes.
11 Q. Does the district gather information about
12 storms that result in flooding that includes flooding
13 of structures and homes?
14 A. Most of the time, yes.
15 Q. And how is that information used by the
16 District kind of moving forward?
17 A. One of the -- you know, my group is
18 responsible for collecting all this information and
19 putting it into reports and tables, and then we turn
20 it over to the engineers, and then they take that
21 information and look at if projects that have been
22 built are performing the way they thought they were
23 going to perform.
24 And they are also used in modeling
25 efforts to construct future projects.

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1 Q. I'm going to have you turn now to Defendant’s

2 737.
4 Okay.
5 Q. Mr. Lindner, do you recognize this document?
6 A. I do.
7 Q. And what is it?
8 A. This is the -- I believe this is the federal
9 briefing that is completed every year by the Flood
10 Control District.
11 Q. And does your division provide information
12 for inclusion in this report?
13 A. We provide limited information, yes.
14 Q. And is this a public document?
15 A. I believe it is a public document.
17 admit Defendants 737.
18 MR. VUJASINOVIC: No objection, your Honor.
21 evidence.)
22 Q. BY MS. TARDIFF: I'm going to walk you
23 through at least a couple parts of this document
24 quickly.
25 Let's have you first turn to -- we're

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1 going to use the page numbers in the -- which in the

2 notebook are in the upper right-hand corner. Well,
3 or lower right-hand corner, depending on how the page
4 is oriented, but they begin with FEMA, and the number
5 we're going to turn to is FEMA 78364. And this
6 section is titled "Historic Flooding"; is that
7 correct?
8 A. Yes.
9 Q. And let's turn to the next page, which is
10 78365.
12 Q. Are you with me?
13 A. Yes.
14 Q. Okay. And what is the information that's
15 shown on this page?
16 A. This looks to be the flooding events going
17 back to Harris County, the major flooding events in
18 Harris County back to 1998.
19 Q. And why does Harris county Flood Control
20 District compile statistics from the national or
21 information from the National Flood Insurance
22 Program?
23 A. Why do we do it?
24 Q. (Counsel nods.)
25 A. I don't know.

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1 Q. Very good.
2 Does that information provide the
3 District with some information about house flooding?
4 A. It provides us with house flooding, yes.
5 Q. Okay. Let's turn to -- let's jump ahead two
6 pages, which is FEMA 78367?
8 Q. Do you recognize that map?
9 A. Yes.
10 Q. And what is it?
11 A. This is the structure flooding or residential
12 flooding from Tropical Storm Allison in 2011.
13 Q. And what does this map tell you about where
14 the rainfall from Allison fell?
15 A. Generally speaking, the rainfall fell in the
16 central and really northeast part of Harris County,
17 and a little bit down to the south and southeast.
18 Q. And what does this show you about Tropical
19 Storm Allison's impact on the Addicks and Barker and
20 lower Buffalo Bayou watersheds?
21 A. For Addicks and Barker, the impact was very
22 minimal. For the lower portion of Buffalo Bayou,
23 there was substantial flooding. During Tropical
24 Storm Allison, inside the 610 Loop in the downtown
25 area.

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1 Q. And what about Buffalo Bayou outside the 610

2 Loop?
3 A. There was some flooding, but there had been
4 significantly worse storms than Allison in that
5 portion of Buffalo Bayou.
6 Q. And let's turn back to the previous page,
7 which is FEMA 78366. The map is captioned "house
8 flooding and one percent 100-year floodplains." Do
9 you see that?
10 A. Yes.
11 Q. Is this a graphical display of where house
12 flooding occurred during various storms listed on the
13 left-hand side of the map?
14 A. Yes, and I would say this is probably a
15 little simplistic.
16 Q. Certainly in terms of where the houses were
17 located?
18 A. Yes.
19 Q. Okay. Understood.
20 I'm going to have you look at the area
21 upstream of Addicks and Barker, but before we do,
22 just looking at the legend on the left-hand side, the
23 yellow houses on this map, it says, "Known House
24 Flooding 2016." Would that include the Tax Day
25 storm?

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1 A. Yes.
2 Q. And there's also blue houses, 2009. Would
3 that have included the storm that hit Harris County
4 in April of 2009?
5 A. Yes.
6 Q. Okay. Let's zone in on the map, if we could,
7 on the screen in the area upstream of Addicks and
8 Barker.
9 Okay. You can see that on your
10 screen -- first, do the Langham Creek, Bear Creek,
11 and South Mayde Creek shown on this map all flow into
12 Addicks reservoir?
13 A. Yes.
14 Q. And according to this map, were homes flooded
15 in neighborhoods located, let's say south of Langham
16 Creek and upstream of Addicks reservoir in both 2009
17 and 2016?
18 A. The answer is yes.
19 Q. And do you know if some of that flooding was
20 in the Bear Creek Village subdivision?
21 A. Yes, it was.
22 Q. And are you familiar with that April 2009
23 storm?
24 A. Yes.
25 Q. And can you describe what kind of storm that

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1 was?
2 A. So the April 20 -- the April 2009 storm was
3 a -- we had a line of thunderstorms move through the
4 afternoon before and produced a boundary that acted
5 like a mini-cold front that then backed up to the
6 north and then redeveloped with a cluster of
7 thunderstorms over west, central, northwest Harris
8 County in the overnight hours. And that cluster did
9 not really move at all, so we had really heavy
10 rainfall, and eventually it moved off to the
11 southeast early midmorning and dissipated. But at
12 that point, we had had a significant amount of rain.
13 Q. And let's move forward chronologically and
14 have you touch on a couple other storms.
15 The Tax Day storm from April 2016 has
16 been mentioned a couple times. Do you recall that
17 storm?
18 A. Absolutely.
19 Q. And were you -- what was your role for Harris
20 County Flood Control District during that storm?
21 A. My role was the same as it was for the
22 Memorial Day 2015 storm and for Harvey, so...
23 Q. And can you describe that storm in terms of
24 duration?
25 A. It was -- it was limited in duration. The

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1 majority of the rain fell in a 12-hour period, so it

2 was, you know. As I mentioned earlier, around here,
3 it's intensity and duration. We had very extensive
4 rainfall in a short amount of time which resulted in
5 a lot of the flooding that we saw on Tax Day.
6 Q. And what other areas of Harris County did the
7 Tax Day storm affect the most?
8 A. The Tax Day storm affected mainly the
9 northwest and western portions of Harris County,
10 northwest and western.
11 Q. Western?
12 It's late in the day.
13 A. Part of the county, with the maximum rainfall
14 actually in southern Waller County, W-a-l-l-e-r, and
15 there was also impacts to the central portion of
16 Harris County.
17 Q. And focusing on the Addicks and Barker area,
18 did you personally observe any of the flooding from
19 the Tax Day storm in that area?
20 A. In Addicks I did, yes.
21 Q. And can you describe what you personally saw?
22 A. So this was, I believe, a day or two after
23 the rain had stopped. It was requested by the TV
24 media that we do an interview at the reservoirs. So
25 we did a TV interview on Clay Road at the entrance to

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1 the Bear Creek subdivision.

2 And that's where the water -- we stopped
3 at the point where the water was crossing the road
4 and we did the interviews, and then after the
5 interviews, we were in a high profile Harris County
6 Sheriff's vehicle, and we drove back into the
7 neighborhood to look at some of the flooding. And
8 what I observed from that was flooding of the streets
9 only. This -- obviously at this point would be for
10 the pool at Addicks.
11 Q. And is that the first time -- or do you know,
12 is that the first time that the pool had exceeded the
13 government-owned land at Addicks?
14 A. To my knowledge, yes.
15 Q. And you already identified for us, and we've
16 admitted Defendant’s Exhibit 293, which is Harris
17 County Flood Control Districts' Tax Day post-storm
18 report. But I wanted to ask you just a few follow-up
19 questions to explain it to us.
20 So it's Defendant’s 295.
22 Q. We'll bring that over for you.
23 A. Okay.
24 Q. And Mr. Lindner, if you could turn to page 2,
25 and I'm going to have you direct your attention to

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1 the bottom of the page, of page 2, in the section

2 with the caption "rainfall exceedance probability."
3 Do you see that?
4 A. Yes.
5 Q. My first question is just a general one.
6 First, can you define for us what rainfall exceedance
7 probability is?
8 A. So this is a fancy way of saying your
9 10-year, 50-year, 100-year, 1 percent exceedance
10 probability or your 1 percent chance of getting that
11 amount of rain in a certain amount of time.
12 Q. So are there different ways that that
13 rainfall exceedance probability is typically
14 expressed?
15 A. Yes, in this here we say exceedance
16 probability. You'll also hear 100-storm or 100-year
17 rainfall, and you'll also hear the 1 percent
18 rainfall, which is the same thing as a hundred year.
19 Q. And is it also important to know what
20 duration you're talking about in understanding
21 rainfall exceedance probability?
22 A. Yes.
23 Q. So for each duration in the prior
24 questioning, you were talking about some one-hour
25 durations, 12-hour, four days. Does each of that

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1 duration -- each of those durations have different

2 rainfall exceedance probabilities?
4 Q. And your report for the Tax Day storm
5 discusses the rainfall exceedance probability for a
6 12-hour time period. Why is that?
7 A. Because most of the rainfall for Tax Day fell
8 in a 12-hour period.
9 Q. I'm going to have you look at the bottom of
10 page 3.
12 Q. And that last paragraph there makes a
13 reference to probable maximum precipitation. We've
14 heard quite a bit about that, but from your
15 experience, can you explain what that is?
16 A. So probable maximum precipitation is just a
17 hypothetical number that climatologists and
18 meteorologists have used computer models to determine
19 physically how much rain the atmosphere can
20 physically produce in a certain area. For our area,
21 before Harvey, we thought it was around 48, 49
22 inches.
23 Q. So does probable, as used in probable maximum
24 precipitation, does that mean the rainfall is likely?
25 A. I would say yes.

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1 Q. Can you explain what you mean?

2 A. So the -- you know, when we're dealing with
3 metrology, it's nothing certain, so this is what we
4 probably -- this is what we believe to be the maximum
5 amount of precipitation that can occur, and again,
6 before Harvey, that's what we thought, was 49 inches,
7 and the reason these two are probable there is
8 because something like Harvey happens, and now we
9 clearly know it can rain much more than 49 inches.
10 Q. So that theoretical, probable maximum, if I
11 understand you correctly, that's the maximum amount
12 of rainfall that professionals believe could fall
13 over a certain area for a certain duration?
14 A. That's correct, yes.
15 Q. So it's understood it's a ceiling?
16 A. Yes.
17 Q. A theoretical ceiling; is that right?
18 A. Yes. Yes.
19 Q. Mr. Lindner, after the Tax Day storm, did you
20 participate in a public meeting at the Cinco Ranch
21 community?
22 A. I did.
23 Q. Where is Cinco Ranch located generally?
24 A. There is some in Harris County and Fort Bend
25 County, and this is a very large master planned

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1 community, I believe it's either side of Highway 99.

2 Q. And do you recall when that meeting occurred?
3 A. It was May of 2017. I believe it was '17.
4 Either '17 or '16. I know it was in May.
5 Q. Okay. And did you speak or present at that
6 meeting?
7 A. I did.
8 Q. And can you describe your presentation to us?
9 A. So it was requested by -- and what this was
10 was a -- an HOA Board meeting of the various
11 different Cinco Ranch neighborhoods, but I guess
12 there's a lot of different neighborhoods, and each
13 one of them have their own HOA board, and so a lot of
14 the HOA presidents, and the head of the homeowner's
15 association and the president or whoever came. I
16 don't believe it was publicly open, it was more for
17 the HOA boards.
18 And they asked me to come speak about
19 hurricanes, and I did my typical hurricane
20 preparation presentation, which also includes a
21 section on flooding.
22 And since I knew I was talking to those
23 residents that could potentially be impacted by
24 Barker, I did put in slides showing the threat of
25 flooding from the pool of Barker.

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1 Q. And did those slides include inundation maps?

2 A. They did, yes.
3 Q. And can you describe what those maps showed?
4 A. So they were the ground elevations, and not
5 only did we have ground elevations, we had helicopter
6 photos so I could draw on major landmarks, so the
7 West Park toll road, Highway 99, and show the actual
8 spillway of the Addicks. And then explain that water
9 can come all the way to the end of this feature that
10 you're seeing here, and you're going to see all of
11 this is going to be in water, and this is homes. So
12 there was both the helicopter look and then there was
13 the map look.
14 Q. And during that presentation, you had
15 mentioned in your earlier testimony, the Flood
16 Control District doing some analysis involving
17 rainfall from Tropical Storm Allison and moving it
18 over the Addicks and Barker watershed.
19 Did your presentation at this public
20 meeting include some discussion of that analysis?
21 A. I believe I did include a map of that. I
22 believe I did. I'm not a hundred percent positive.
23 Q. Okay. Do you recall -- what do you
24 recall -- do you recall whether you -- your
25 presentation included some information about that

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1 analysis?
2 A. I don't recall that.
3 Q. Okay. Do you recall what the size or the
4 attendance was at that meeting, that public meeting?
5 A. I would say between 50 and 60 individuals.
6 Q. Mr. Lindner, I think you talked some about
7 your role during Harvey. In the lead-up to the
8 storm, where does Harris County Flood Control
9 District get forecasting information about a storm?
10 A. So we use the local National Weather Service
11 office, and also the National Hurricane Center
12 dealing with a tropical storm or hurricane. We are
13 in frequent coordination with both of those agencies.
14 Q. I'm going to have you turn to Defendant’s
15 Exhibit 556.
17 Q. And we put the first page up on the screen
18 and we can get you the full copy if you like.
19 A. Yes.
20 Q. Mr. Lindner, do you recognize this document?
21 A. Yes.
22 Q. And can you identify it for us?
23 A. Yes, this is the National Hurricane Center's
24 tropical cyclone report for Hurricane Harvey.
25 Q. And you previously identified the National

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1 Hurricane Centers as one of the organizations

2 under -- with the National Weather Service that you
3 get storm information from; is that correct?
5 Q. And is this a public document?
6 A. This is a public document.
8 admit Defendant’s 556.
9 MR. VUJASINOVIC: No objection.
12 evidence.)
13 Q. BY MS. TARDIFF: And does this report, to
14 your knowledge, Mr. Lindner, contain information
15 about the entirety of Hurricane Harvey?
17 Q. So it may not be specific to Harris County;
18 is that correct?
20 Q. I want to ask you just a couple questions to
21 allow you to describe Hurricane Harvey for us. I
22 know you said you were at the Emergency Operations
23 Center; is that right?
25 Q. Or Office of Emergency Management.

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1 Do I have the term right?

2 A. Yes.
3 Q. And when did you arrive at that center?
4 A. For the storm I went in Friday morning about
5 4:00 in the morning.
6 Q. And how long were you there?
7 A. I would leave the following Saturday.
8 Q. How many hours after your arrival did you go
9 without sleep?
10 A. Sixty-two.
11 Q. How many interviews did you give during that
12 time period that you were there?
13 A. Hundreds.
14 Q. As Harvey bore down on Harris County, can you
15 describe for us the combination of forecasting and
16 what was happening on the ground, particularly
17 focusing on that four-day period where the bulk of
18 the rainfall fell?
19 A. So Harvey made landfall on Friday evening
20 about 10:00, about 150 miles down the coast at
21 Rockport, as a Category 4 hurricane. It was one of
22 the first category 4's -- one of the more significant
23 hurricane events Texas has had probably going back to
24 1961 and Hurricane Carla.
25 So we had rain on Friday and we had rain

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1 on Saturday, but it was nothing significant. It

2 was -- it was rainfall that we could handle. And
3 then about 9:00 on Saturday evening, a single band of
4 rain developed well to the east of the center. The
5 center of the storm was still a hundred miles or so
6 to our west. This band of rain developed, and that
7 would be the band of rain that would produce
8 tremendous amounts of rainfall over Harris County and
9 move from the western part of the county to the
10 eastern part of the county.
11 It started about 9:00 in the west, and
12 it slowly migrated over Dallas about 6:00 in the
13 morning, so it took all night long to get through the
14 county. And the unfortunate part behind that band,
15 unlike other storms we've dealt with, when the kind
16 of main rain band was through, it's over. We
17 continued to have development behind that main band.
18 So some areas got a little bit of a break before
19 multiple bands just kept coming across the area.
20 That continued into Sunday night.
21 And Monday, Harvey remained classified
22 tropical storm the entire time it was inland over
23 Texas, and then it moved back off the coast and
24 eventually over into southwest Louisiana and finally
25 ended our rain. I believe it was Tuesday afternoon

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1 or Wednesday when the rain stopped.

2 Q. And at some point during the course of that
3 rainfall you just described, did you realize that
4 Harvey was going to be more severe in terms of
5 rainfall and flooding for Harris County than Tropical
6 Storm Allison had been?
7 A. Yes, and I can tell you exactly when it
8 happened. It was around 12:30 in the morning on
9 Sunday morning. And the reason was because looking
10 at our flood warning system, we were seeing water
11 levels in certain creeks and bayous that were
12 exceeding Tropical Storm Allison levels.
13 And so at that point, you know, we were
14 dealing with something that we had not dealt with
15 before, at least in modern times, and at that point,
16 it was somewhat localized to the south-southeast
17 parts of the county.
18 By Sunday daybreak and during the day
19 Sunday, it then expanded into not only the entire
20 county, but every county around us.
21 Q. And was every watershed within Harris County
22 affected in terms of some flooding by Harvey?
23 A. Every watershed was affected in some way,
24 yes.
25 Q. And you mentioned the southeast part of the

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1 county. Before your attention turned to the

2 situation of Addicks and Barker with the rising
3 pools, what area of Harris County were you focused on
4 in terms of the emergency situation?
5 A. It was the southeast part of Harris County,
6 the city of South Houston, Pasadena, down Interstate
7 45 to Northern Galveston County, so
8 Friendswood/Dickinson area.
9 We were getting a tremendous amount of
10 911 calls, 9800 or so an hour coming into the 911
11 center for help, and this was -- this was the
12 storm -- this was a storm that people were -- the
13 water was getting so deep in homes in this area that
14 we were concerned that people were going to drown in
15 their house, and we had never faced that before here.
16 We never faced that.
17 Q. And that's an area that's not -- not part of
18 the watersheds for Addicks and Barker?
19 A. No, it is not.
20 MS. TARDIFF: Let me just ask a few more
21 questions.
22 THE REPORTER: Judge, can I take a break in a
23 little bit?
24 MS. TARDIFF: I've got a few more questions
25 but --

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1 THE REPORTER: All right.

2 THE COURT: You organize your last questions
3 and we'll let the court reporter take a five-minute
4 break.
5 MS. TARDIFF: Okay, very good.
6 (Recess: 5:23 p.m. - 5:27 p.m.)
7 THE COURT: If everyone may please be seated
8 we'll be back in session.
9 Ms. Tardiff, you may proceed.
10 MS. TARDIFF: Thank you, your Honor.
11 Q. So, Mr. Lindner, you talked about Harris
12 County, the Flood Control District's efforts to
13 educate people about flood risk. Is that an effort
14 that precedes the Hurricane Harvey or Tropical Storm
15 Harvey event?
16 A. Yes.
17 Q. And in terms of Harris County Flood Control
18 District's message to residents about flood
19 insurance, is that a message that predates Harvey?
20 A. Yes.
21 Q. The flood warning system that the Flood
22 Control District maintains, is that a system that's
23 been in place since before Harvey in some way?
24 A. Yes.
25 Q. When we talk about Harvey, and we look back

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1 at the rainfall intensity reports, we looked at

2 those, and the Tax Day report, and also in the Harvey
3 report, there is one-hour increments, 12-hour
4 increments in terms of looking at maximum rainfall.
5 Do you recall that?
6 A. Yes.
7 Q. And to understand Harvey, can you understand
8 Harvey by looking at the one-hour or the 12-hour or
9 even the 24-hour increments?
10 A. I think each one for Harvey, each one of
11 those times periods explains something about the
12 storm, yes.
13 Q. And looking at the storm as a whole, though,
14 do those increments, are those increments meaningful?
15 A. In Harris County, yes.
16 Q. And explain that.
17 A. So the way I kind of characterize Harvey is
18 Harvey was two events for us. One was the intense,
19 short-duration rainfalls, so this is the 3, 6,
20 12-hour rainfalls that were very, very intense, that
21 resulted in a lot of flash flooding, so this is
22 instantaneous flooding, this is widespread roadway
23 flooding that inundated some of the homes. This is,
24 in some cases, bayou flooding.
25 And then the rain rates reduced, but it

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1 kept raining, so we kept piling water on top of water

2 that was already on the ground. This becomes much
3 more meaningful when you're looking at certain
4 watersheds that drain slower than others. So if the
5 watersheds drain slower, and you keep putting water
6 on it, it's going to keep rising, whereas a watershed
7 that drains faster, that is more susceptible to those
8 intense rainfall rates, once those rainfall rates
9 start to slacken or weaken, that watershed will
10 actually start to fall even though you continue the
11 water running. You're just doing it at a slower
12 rate.
13 Q. Okay. If you're trying to do a comparison
14 of, say, Tropical Storm Allison and Harvey, you said
15 Tropical Storm Allison was really kind of a 12-hour
16 event for Harris County?
17 A. The Tax Day storm was a 12-hour event for
18 Harris County. Allison was a 24-hour event in a
19 portion of the county, and then we had multiple
20 rounds of heavy rain over a five-day period with
21 Allison.
22 Q. And, again, how many days of rain did you
23 have for Harvey?
24 A. I believe we had four.
25 Q. And so the amount of rain may have varied by

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1 hour, by day, but you had rain on four consecutive

2 days?
3 A. I believe so, yes.
4 Q. And to understand Harvey in terms of its
5 impacts on this region, in Harris County in
6 particular, it is important to look at all of that
7 information, and particularly the total rainfalls
8 across the county?
9 A. Yes.
10 Q. Have you described Harvey as unprecedented?
11 A. Yes.
12 Q. And can you explain what you mean by that?
13 A. So the unprecedented nature of Harvey is
14 really the amount of rain that the rainfall totals
15 over such a large geographic area. And so, for
16 example, one of the statistics is 35.72 inches of
17 rain over 10,000 square miles, and that exceeds the
18 previous worst storm event in American history by
19 total and coverage significantly.
20 Q. Would you also describe Hurricane Harvey or
21 Tropical Storm Harvey as an unprecedented event for
22 Harris County as a whole?
23 A. Yes.
24 Q. And explain that.
25 A. The unprecedented part comes from, unlike

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1 Allison, which was a portion of the county, this was

2 the entire county. It was every single watershed.
3 It was Addicks and Barker. We had issues at two of
4 our levees that we have in this county. It was
5 everything we could possibly face in -- from a
6 rainfall/flood standpoint at once, and it
7 wasn't -- the even bigger part of that, it wasn't
8 just this county. It was every single county around
9 us. It was every county from the state line of
10 Louisiana all the way down to the Victoria.
11 Q. And that would include Fort Bend County?
12 A. Yes.
13 MS. TARDIFF: Thank you, Mr. Lindner.
14 THE COURT: Mr. Vujasinovic.
15 MR. VUJASINOVIC: Up to you, Judge. Let me
16 plug back in here.
17 Are you ready, your Honor.
18 THE COURT: Yes.
19 REDIRECT EXAMINATION
20 BY MR. VUJASINOVIC:
21 Q. You all were just talking about the word
22 unprecedented; is that right?
24 Q. Now you had told us before that my numbers
25 are right in terms of the -- those are the maximum

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1 numbers that Harvey put into the three watersheds; is

2 that correct?
4 Q. Okay. Now look at your -- and those are the
5 four-day maximum numbers; right?
6 A. The four-day maximum for Harvey.
7 Q. No, those are the four-day maximum numbers
8 for each of the three watersheds; correct?
9 A. Yes.
10 Q. Now look at, from your report, and tell the
11 Court what the maximum four-day was for Allison.
12 A. The --
13 Q. 38-1/2; right?
14 A. Is that for four days?
15 Q. Yes, sir.
16 Right?
17 A. Yes.
18 Q. So the Harvey four-day maximum rain that fell
19 into the Addicks and Barker reservoirs is not
20 unprecedented in Harris County; correct?
21 A. The -- repeat the question.
22 Q. Sure.
23 The amount of Harvey rain, the four-day
24 maximum rain that fell into the Addicks and Barker
25 reservoirs is not unprecedented in Harris County?

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1 A. The answer would be no to that. It's not

2 unprecedented for Addicks and Barker.
3 Q. Right.
4 That's because Allison in '01 dumped
5 38-1/2 in Harris County, which is more than Harvey
6 put into the three watersheds; correct?
7 A. That's correct. Harvey also -- I mean Harvey
8 also produced 47.4 in Harris County.
9 Q. I understand that.
10 That was in that southeast corner that
11 has nothing to do with Addicks and Barker; right?
12 A. Well, neither does the 38.5 in Allison. That
13 wasn't in Addicks and Barker.
14 Q. Look, all I'm asking you, sir, is to admit
15 that the Harvey four-day maximum rainfall into the
16 three reservoirs is not unprecedented in Harris
17 County; i.e., Allison with 38-1/2; correct?
18 MS. TARDIFF: Objection; argumentative.
20 Q. BY MR. VUJASINOVIC: Correct?
21 A. I will not agree with that.
22 Q. Well, I think you already did previously,
23 so -- I mean it happened before, 38-1/2 inches rained
24 in Harris County in Allison in 2001; right?
25 A. I agree with that.

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1 Q. And during Harvey, less than that rained into

2 each one of the watersheds; correct?
3 A. During Harvey, less of that rain fell into
4 each one of the watersheds; correct.
5 Q. Correct, okay.
6 A. The point to be made is the 38.5 did not
7 happen in Addicks, Barker or Cypress Creek in
8 Allison.
9 Q. I know that. That's why my question is
10 framed in terms of it's not unprecedented in Harris
11 County.
12 The amount of rain that fell in the
13 watersheds is not unprecedented in Harris County
14 because it happened in Allison. The amount of rain
15 that fell in the watersheds during Harvey is not
16 unprecedented because more than that fell in Allison,
17 which happened in Harris County.
19 MS. TARDIFF: Objection; still argumentative.
20 And asked and answered.
21 THE COURT: Well, the Court will not sustain
22 on that ground, the Court will sustain on the ground
23 that it's argumentative.
24 Q. BY MR. VUJASINOVIC: We will inevitably have
25 similar amounts of rain in these watersheds again in

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1 the future; correct?

2 A. It's possible.
3 Q. And you were asked some questions about
4 exceedance probability. Do you remember that?
5 A. Yes.
6 Q. And so apparently we've had three 500-plus
7 year storms in a row?
8 A. Not exactly.
9 Q. Harvey, Tax Day and Memorial Day?
10 A. Yes, but it doesn't work that way quite as
11 easy as that.
12 Q. Okay. Well, I mean if we're to kind of
13 really put weight on those numbers, that would be
14 like hitting the lottery or something.
15 A. The way to look at exceedance probability is
16 a point rainfall, so when you look at Tax Day, the
17 maximum point rainfall was in the northwest part of
18 Harris County. Memorial Day '15 was southwest.
19 Those aren't the same locations, so you can't really
20 say the same place had a 100-year storm or a 500-year
21 storm. You have to add that location at that
22 particular point. You have to reach that rainfall
23 threshold to equate that.
24 Q. Do USGS gauge readings always match the
25 Harris County gauge readings concerning water levels

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1 at the same location for the same storm?

2 A. Not always, no.
3 Q. Why not?
4 A. Sometimes there is a datum difference, which
5 can result in some slight differences. Generally
6 speaking, it's not a lot, but it could be a foot or
7 so.
8 Q. Same question, but instead of water levels,
9 rainfall amounts.
10 A. The USGS may collect rainfall, but they do
11 not calibrate their rain gauges, so they do not even
12 put a lot of stock into their rainfall. Our rainfall
13 is probably more accurate than theirs.
14 Q. You put more stock in the District's than the
15 USGS on that note?
16 A. Yes.
17 Q. And then you were asked some questions about
18 prior house flooding in Bear Creek Village on Tax
19 Day. Do you remember that?
20 A. Yes, Tax Day in 2009.
21 Q. I've handed you an exhibit, Plaintiffs' 200.
22 Do you recognize that as coming from the District's
23 website?
24 A. I do not recognize this, but it looks like it
25 would come from the website.

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1 Q. Okay. I mean it looks --

3 MR. VUJASINOVIC: Yes, Judge, I'll wait until
4 you're ready.
5 May I proceed, your Honor?
6 THE COURT: Yes.
7 Q. BY MR. VUJASINOVIC: So this is the
8 District's website talking about Tax Day time period,
9 "Addicks reservoir is rising, water is moving into
10 adjacent subdivision streets. Residents advised..."
11 THE COURT: Well, you may not read from it.
12 MR. VUJASINOVIC: Sorry.
13 THE COURT: You're reading the caption;
14 that's fine.
15 Q. BY MR. VUJASINOVIC: Is this material, sir,
16 talking about some flood risks during Tax Day?
17 A. Yes.
18 MR. VUJASINOVIC: Okay. And we move to admit
23 evidence.)
24 Q. BY MR. VUJASINOVIC: And some of the streets,
25 like, for example, Four Seasons, is one of the

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1 streets that's listed in here. Do you see that?

2 A. Yes.
3 Q. And this is in the Bear Creek area; right?
5 Q. And can you read, for example, what it says
6 right there highlighted? Can you see that?
7 A. In the box?
8 Q. Yes, sir.
9 A. "Streets impacted by backwater from Addicks
10 reservoir at current estimated peak water elevation
11 of 103 feet."
12 Q. And how does the District define backwater?
13 A. We would consider backwater to be water from
14 the pool.
15 Q. Pool?
16 A. Pool.
17 Q. Caused by the flood pool?
18 A. Caused by the flood pool, yes.
19 Q. From the reservoirs?
20 A. From the reservoirs, yes.
21 Q. And then read -- this is for another area in
22 Bear Creek. Basically it says the exact thing in
23 terms of backwaters causing that flooding in Bear
24 Creek from the pool; correct?
25 A. What it is saying is that the current

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1 estimated peak water elevation, so this is a forecast

2 of 103.
3 Q. Okay. And so this is -- this is from Tax
4 Day; is that correct?
5 A. Yes.
6 MR. VUJASINOVIC: That's all I have.
7 Thank you, sir.
8 MS. TARDIFF: Your Honor, if I could just
9 make one clarification for the record.
10 What we've been discussing is
11 Plaintiffs' 200 was marked as a Joint Exhibit, it
12 should be Joint 126 for the record.
13 THE COURT: Thank you. Just a moment. Let
14 me make some notes.
16 THE COURT: Sorry to take everyone's time
17 today.
18 Do you have anything further,
19 Ms. Tardiff?
20 MS. TARDIFF: I do not, your Honor.
21 THE COURT: Just give me a moment.
22 I think we might excuse Mr. Lindner.
23 Does counsel have any objection to the
24 Court excusing Mr. Lindner as a witness?
25 MR. VUJASINOVIC: No, your Honor.

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1 MS. TARDIFF: No, your Honor.

2 THE COURT: Mr. Lindner, thank you very much
3 for coming to testify, and also coping with the
4 various interruptions we had, but that's fine.
5 And I appreciate very much your
6 willingness to come and give your testimony today.
7 Thank you. You are excused.
8 THE WITNESS: Thank you.
9 THE COURT: Now, the Court has -- you may
10 actually leave.
11 Now. The Court has a question about
12 whether or not we need the court reporter for the
13 discussion about the site visit tomorrow.
14 MR. CHAREST: Not from our perspective, your
15 Honor, from the Plaintiffs.
16 MR. SHAPIRO: No, your Honor.
17 THE COURT: All right. May we give the time
18 elapse so far, and then may we adjourn for the
19 evening?
20 LAW CLERK: For the Plaintiffs, 8 hours, 59
21 minutes.
22 THE COURT: How many minutes?
23 LAW CLERK: 59.
24 THE COURT: That's what I thought you said.
25 LAW CLERK: And for the defense, 3 hours and

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1 5 minutes.
2 THE COURT: We are adjourned for the evening.
3 MR. CHAREST: Thanks.
5 (The proceedings adjourned at 5:43 p.m.)
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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/David M. Lee
12 DAVID M. LEE, RMR, CRR
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1 ADMITTED EXHIBITS
2 JX PAGE DESCRIPTION
3 23 497 August 1977 USACE Revised 1977
4 Hydrology Report for Addicks and
5 Barker Reservoirs
6 31 337 2/13/1984 Consideration of
7 Alternatives for Preserving Integrity
8 of Addicks and Barker Reservoir
9 Embankments
10 44 363 5/1/1992 Special Report prepared by
11 USACE, Galveston District, on Addicks
12 and Barker Reservoirs Flooding May
13 1992
14 52 372 10/1/1995 Reconnaissance Report -
15 Section 216 Study
16 91 437 8/1/2009 2009 Master Plan for Addicks
17 & Barker Reservoirs prepared by
18 USACE, Galveston District
19 200 592 9/9/2017 Summary Sheet - HCFCD High
20 Water Marks (9/19/2017)
21 229 554 6/4/2018 HCFCD Memo: Re: Immediate
22 Report - Final Hurricane Harvey -
23 Storm and Flood Information; From:
24 Linder, Jeff; To: HCFCD Flood
25 Watch/Partners; Date: 06/04/18

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1 PX PAGE DESCRIPTION
2 27 350 03/01/91 Engineering and Design
3 Inflow Design Floods for Dams and
4 Reservoirs
5 50 348 12/01/85 Dam Safety Assurance -
6 Supplement No. 1 to General Design
7 Memorandum
8 51 341 06/01/84 Dam Safety Assurance -
9 General Design Memorandum
10 59 427 10/01/09 Draft Operational Assessment
11 of the A&B Reservoirs
12 61 395 09/11/03 Methodology Report - mapping
13 control for Buffalo Bayou, TX
14 watershed - phase II
15 62 425 Photo of 4310 Cassidy Park Lane -
16 Anna Giron
17 63 425 Photo of 6411 Canyon Park Dr -
18 Quintero
19 64 435 09/01/11 Addicks NAVD 1988
20 65 435 09/01/11 Barker NAVD 1988
21 87 511 11/01/81 Environmental Assessment Dam
22 Safety
23 105 523 03/01/86 COE - Envirnmental
24 Assessment Dam Safety
25

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1 200 648 01/01/18 HCFCD: Website for Press

2 Room 2016 News
3 268 419 Barker Reservoir Elevation Data
4 USACE668669 (duplicate of Ex. 254)
5 271 415 Barker ReservoirUSACE668681
6 446 332 11/19/1981 Corps press release re dam
7 safety study
8 707 463 3/1/1965 EM 1110-2-1411 Standard
9 Project Flood Determination
10 1213 536 6/23/1992 Public Affairs Plan
11 2289 400 addicks_flooding_structures.kml
12 2290 412 ft_bnd-parcels-cent_stpl83.kml
13 2292 405 barker-harris_flooding_structures.kml
14
15
16
17 DX PAGE DESCRIPTION
18 25 480 08/01/1955 Reservoir Regulation
19 Manual for Addicks and Barker
20 Reservoirs (August 1955)
21 294 574 06/27/2016 HCFCD post-storm report on
22 Tax Day flooding 06/27/2016
23 295 577 06/27/2016 HCFCD Memorandum
24 (post-storm report) on Tax Day
25 storm/flooding in April 2016

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1 556 633 5/9/2018 NOAA National Hurricane

2 Center, Tropical Cyclone Report,
3 Hurricane Harvey (AL092017) -17
4 August - 1 September 2017, available
5 at https://www.nhc.noaa.gov/
6 data/tcr/AL092017_Harvey.pdf
7 682 604 PowerPoint - Hurricane Harvey, by
8 Jeff Lindner, Meteorologist, Harris
9 County Flood Control District
10 683 585 HCFCD - Flooding Impacts in
11 Connection with the Reservoirs
12 684 586 HCFCD Webpage - Harris County's
13 Flooding History
14 695 616 Harris County Flood Control District
15 - "Flood Insurance: Who Needs It?"
16 734 447 Spring 2018 Map of Harris County
17 Watersheds
18 737 619 Spring 2018 Harris County Flood
19 Control District Federal Briefing
20 (Spring 2018)
21 819 479 Map - Overhead aerial view of
22 upstream property locations, Addicks
23 Reservoir
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
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2 upstream property locations in both
3 Addicks and Barker Reservoirs
5 upstream property locations, Barker
6 Reservoir
7
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

2019-05-07 Harvey - Trial Testimony Day 2 (Thomas, Lindner) - FULL

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2019-05-07 Harvey - Trial Testimony Day 2 (Thomas, Lindner) - FULL

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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 DIRECT EXAMINATION (CONT'D)

For The Record, Inc.

1 Q. The Bates stamp down there says FB, and you

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1 THE WITNESS: I would assume so.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

1 A. It did result in some additional

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1 usually labeled as FOUO.

For The Record, Inc.

1 Q. And this is a document that you saw in your

For The Record, Inc.

For The Record, Inc.

1 A. That's what it says.

For The Record, Inc.

For The Record, Inc.

1 (Plaintiffs' Exhibit 51 was received in

For The Record, Inc.

For The Record, Inc.

1 runoff that's going to go down into the dams;

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

1 Q. But it doesn't say that in 9.1, does it?

For The Record, Inc.

For The Record, Inc.

1 MR. SHAPIRO: No objection.

For The Record, Inc.

1 something like that. I forget the actual year.

For The Record, Inc.

1 Corps of Engineers to provide guidance regarding

For The Record, Inc.

For The Record, Inc.

1 compensate for economic losses associated with dam

For The Record, Inc.

1 were made; correct?

For The Record, Inc.

1 The three-strike rule comes into play.

For The Record, Inc.

1 The question is ever.

For The Record, Inc.

1 just saw it for the dams. What is it for a

For The Record, Inc.

1 Q. Ever seen it for Horsepen Creek?

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

1 Q. That's excessive damage, wouldn't you say?

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1 resulting from the inflow design flood; correct?

For The Record, Inc.