Floods, Lawsuits, and Water Infrastructure Management

Abstract

Climate change and land development are causing more flood damage in the United States, which leads to more litigation. This is a rising concern to USACE, which owns many dams, levees, and river training structures that make the agency a target for negligence or takings suits. This paper provides an analysis of four cases of flood litigation involving the agency and their implications for managers of flood-related water infrastructure. The cases concern Hurricane Katrina, Missouri River flooding, the 2012 Arkansas Game and Fish Commission Supreme Court case, and a river tort case. Hurricane Katrina involved numerous lawsuits, and the main lesson highlighted in the case study regards federal government immunity to flood tort cases. The Missouri River case highlights river training structures in a takings case. The Arkansas Game and Fish case set precedents for considering temporary flooding in takings litigation. The river tort case sheds light on the Act-of-God defense. Recent large-scale flood disasters will involve additional litigation, which may result in additions to the conclusions of this paper. The judicial trend to hold government responsible for flood losses calls for new standards of performance for flood risk reduction. It may also inform the political question of whether taxpayers should provide funds for flood-control projects, relief payments, and bailout funding for the flood insurance program while also being vulnerable to additional penalties from litigation.