I was recently asked to speak at the 2026 Annual Meeting of the National Waterways Conference, a national trade group advocating in the areas of navigation, flood control, and water supply. Specifically, I was asked to speak on the effects of the 2023 Federal Court of Appeals decision in Ideker Farms v. United States. In some ways, Ideker has picked up the whole game board of potential liability from government action in river and water management, given it a good shake, and dropped it again on the table. Some of the pieces on that game board are still rolling around as a result and haven’t come to rest, but those pieces that have already landed are suggesting that government liability will be much more likely.

Private property advocated can herald this as a great thing, and in many ways it is. Our country is founded on many principles, including our pride in private property, perhaps as a reaction to the King of England regularly taking property in the colonies for all sorts of uses. But unfortunately, more liability for the government in these cases means more expensive water resource and management projects going forward, and in this age of limited government budgets that translates into less projects that will get built and help and protect people. I suspect that even private property advocates would agree that this is not a great outcome.

Technically, Ideker Farms did not create a new rule of law. That rule was first announced by the Supreme Court in Pumpelly v. Green Bay & Mississippi Canal Company back in 1871 and then reinforced in United States v. Cress in 1917. The rule says that when the government (Federal, State, or local) floods your property permanently, even if that flooding is intermittent (not in all months), then the government has “taken” (as that term is used in the Constitution’s Fifth Amendment) a flowage easement across your property and the government needs to pay for that taking. But when Ideker Farms was decided in 2023, it cemented a few things beyond our simple understanding from Pumpelly or Cress. For example:

• This ruling can apply to property which was formerly naturally flooded, but which has since been “reclaimed” by government action, and which is now subject to flooding again due to new government action;
• This ruling can apply to reservoir operations that are being changed as a result of regulations or statutes, such as compliance with the Endangered Species Act; and
• This ruling can apply even when there might be any number of years with no flooding, but then a series of storms inundates the property.

For me, the real question that comes out of Ideker, and that we won’t know an answer for until the last of those game pieces stop spinning on the table, is just how the court will finally interpret and define the term “intermittent.” From Cress, we know it can mean part of the year. From Ideker, we know it can mean flooding in five out of eight years. But does intermittent mean the same as infrequent? Is it intermittent when the hydrologists believe there is a one percent chance of flooding in any year (the FEMA 100-year event)? How about if the hydrologists believe that there is a .5% chance of flooding in any year (a 200-year event)? What if in the 200-year event the property would have already been flooding to a depth of eight feet, and now it will be eight feet three inches, or eight feet six inches, or nine feet? The law doesn’t actually answer these questions, because the courts in Pumpelly, and Cress and Ideker, just answered the questions in front of them. But those answers started us down a road (or to stick with my earlier analogy, upended the game board) and now we know that these further questions are coming our way.

These questions will hit us in two ways. First, when the unfortunate happens and someone floods and they go to the courts for justice. This is the guarantee our Constitution gives us. But the second way these questions will hit us is harder: these questions will work their way into each new project we conceive, or design, or construct, or operate. When planning a project, do I need to consider buying a flowage easement across the property that was already going to be flooded, but now the flooding will be deeper, thus making my project more expensive and causing it not to pencil out? When designing the project, do I need to design hydraulic mitigation because of a fear of future litigation announces rules more strict than the current rules? When constructing my project, do I need to buy flowage easements on a large property, affecting the future uses of a farmer’s land? When operating a project, do I need to risk violating the Endangered Species Act so that I don’t find myself liable for taking someone’s property?
Those of us in government service (yes, even us outside Counsels) need to consider these risks and start developing plans and narratives to guide our actions and explain our decisions. I will offer some musing on this thought in a future post. But for now, we might not learn more until someone picks up the dice and rolls them across the playing board and gives us something else to think about.