I am thrilled to be heading to Jackson Hole, Wyoming this afternoon to attend the annual conference of the National Association of Flood and Stormwater Management Agencies (NAFSMA). Susan Gilson and the Board always do a great job of putting together a conference that brings together the leaders from Federal,
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.
There is significant uncertainty as to the intent and effect of the new Federal Flood Risk Management Standard, released as part of the Obama Administration’s issuance of Executive Order 13690, issued in January to amend Executive Order 11988. Based on the chatter in the flood risk management community, the…
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,…
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.
The U.S. Army Corps of Engineers (USACE) issued a new engineering circular (EC 1165-2-216) to provide policy and guidance for processing requests to alter USACE civil works projects pursuant to 33 U.S.C. section 408. This new circular collects existing guidance from several informal documents, codifies USACE practice from some USACE Districts that process many 408 requests, and expands the guidance to cover other objectives beyond flood risk reduction, such as water supply, hydroelectric, and ecosystem restoration. Section 408 (33 U.S.C. section) is a decades old provision of Federal law that prohibits a non-Federal interest from altering a Federally authorized water resources development project without advance permission from the Secretary of the Army. That authority has been delegated to the Assistant Secretary of the Army, then to the Chief of Engineers, and then to the Director of Civil Works. This new Engineering Circular provides the rules associated with that delegation.