If you have been reading major California newspapers over the past few weeks, you have seen a number of stories about a “monster” El Niño event headed our way this winter. Most of those articles address whether such an event would end California’s four-year drought. A small handful of them
Inverse Condemnation Flooding Case Moves Forward in Texas
A recent Texas Supreme Court case on inverse condemnation has opened the door for a group of homeowners to continue in a lawsuit against their county and flood control district over property damage that was allegedly a known possibility when the government entities approved the housing development. These cases are rare, so it’s an unusual opportunity to take a look at the concept of “takings” in a flood control context.
What is inverse condemnation?
There’s a fundamental concept in Federal and State Constitutions that the taking or damaging of private property for a public use must be compensated. When private property is taken for public use without compensation, the property owner can file an inverse condemnation action to force the government to pay for the damage. The policy underlying inverse condemnation claims is that a private individual should not be forced to bear a disproportionate share of the costs of a public project.
Can flooding lead to inverse condemnation claims?
Inverse condemnation cases arise in the context of flood control where a government action results in the flooding of private property.
In California, for example, current case-law suggests that an inverse condemnation action will be successful only if the deliberate design and construction of a project or public improvement causes physical injury to real property. In other words, the project as planned must be the cause of the damage rather than faulty construction or maintenance of a project. This high bar for success in an inverse condemnation case makes sense; if public agencies could be sued for just negligent maintenance, they may not choose to embark on projects that protect the public.
New California Tribal Consultation Law Takes Effect July 1
Most flood control projects require environmental review triggered by a federal, state, or local agency permit or decision. For example, federal agencies must consider the environmental impacts of their proposed actions under the National Environmental Policy Act (NEPA), and many states have their own “mini-NEPA” laws that require state and
Development Set to Begin Again in Sacramento’s Natomas Area
Since 2008 the Natomas area in the City of Sacramento has been under an effective moratorium on new development due to insufficient flood protection. The area is preparing to re-start development once the City receives a letter from the Federal Emergency Management Agency (FEMA) that lifts a flood hazard designation
Louisiana Judge Tosses Lawsuit Blaming Oil and Gas Industry for Flood Damages
A lawsuit brought in 2013 by the Southeast Louisiana Flood Protection Authority-East has been dismissed by a federal judge who found that the Authority had failed to support its claims against dozens of oil, gas and pipeline companies. The Authority sued the companies for damages, arguing that their oil and gas exploration activities had damaged wetland areas, making the coast more vulnerable to flooding during hurricane events such as Hurricane Katrina in 2005.
Background
The Southeast Louisiana Flood Protection Authority-East (Authority) is one of two levee authorities that service the metropolitan New Orleans area. The authorities are responsible for protecting residents, businesses and properties from flooding, including adopting rules and regulations for carrying into effect a comprehensive levee system (which includes levees, floodwalls, drainage structures and floodgates).
In July 2013, the Authority filed suit against 97 oil, gas and pipeline companies on the theory that their exploratory activities over time have damaged wetlands, which in turn has left New Orleans vulnerable to catastrophic flooding. Specifically, the suit alleges that the dredging of canals by the oil and gas companies allowed for destruction of wetlands that protect the New Orleans area from flood damages, and that those damages complicated and increased the cost of management of the levee system.
State Grant Program Offers $150 Million for Urban Flood Protection Projects
California flood control agencies learned in January that the state’s Department of Water Resources (DWR) is making available $150 million for projects aimed at reducing flood risks to urban areas. The Urban Flood Risk Reduction grant money, which represents a portion of the $5 billion approved by voters in 2006,
2014 Milestone: Passage of Water Infrastructure Legislation
When it comes to federal legislative actions that impact flood control, the passage of water infrastructure legislation was undoubtedly the most significant action in 2014. After months of difficult negotiations in Congress, the House and Senate passed the Water Resources Reform and Development Act (WRRDA) and the President signed the bill into law in late spring of 2014. The legislation streamlines environmental review, increases flexibility for non-Federal sponsors, and authorizes key projects, most notably flood risk management projects.