Flood management is a topic of increasing importance in the legal and policy spheres at the federal, state, and local levels. Flood losses cost the nation $4 billion every year [1]. The risk of flooding—and the damage associated with flooding—is on the rise. Rapid development in flood-prone areas around the country has reduced the amount of water that is infiltrated into the ground during storm events, increasing runoff and riverine flooding. At the same time, sea level rise increases the vulnerability of coastal communities not just to nuisance tidal flooding but also to large-scale catastrophic damage from coastal flooding during storms. By the year 2100, 13.1 million Americans will be at risk of increased flooding in the continental United States because of sea level rise [2]. The increased likelihood of more intense storms and extreme weather events has led to widespread flood management challenges. Additionally, in states like California, susceptibility to widespread drought and wildfire reduces the capacity of the soil to absorb water, leading to amplified flooding during times of heavy rain.

Most case law associated with flooding is in the form of Fifth Amendment takings disputes. The U.S. Court of Federal Claims has heard over 500 flood-related takings cases in the last five years alone. Many more cases are heard in state and local courts. A government entity might flood a property though the construction or operation of a dam, or through the diversion of a natural stream through a clogged culvert (see Sargent v. Town of Cornwall, 1972). Furthermore, the Supreme Court ruled in 2012 that flood takings can result from both permanent and seasonal or temporary flooding resulting from government action (see Arkansas Game and Fish Commission v. United States). In 2017, a series of lawsuits filed with the Court of Federal Claims alleged that in the wake of Hurricane Harvey’s landfall in Houston, Texas, the U.S. Army Corps of Engineers’ operation of two dams caused unlawful inundation of property without compensation [3]. The court ruled that the damages caused to property upstream of the dams constituted a taking, while the damages caused to property downstream of the dam did not.

Takings disputes also occur in cases where governments use nonstructural approaches to flood mitigation (such as zoning laws) to avoid development in the floodplain. A taking may be claimed in cases where government regulation or action has removed all economic value from a property. A taking may also be claimed where government action has a significant economic impact on the landowner and also has an effect on the owner’s “investment-backed expectations” or imposes an undue burden on the landowner. In these instances, courts weigh the benefits of public hazard mitigation against the reduction in private property value (see Monsoldo v. State, 2006) [4] [5].

Takings law for flood cases typically applies in cases where government action has resulted in the flooding of private property. However, sea level rise and coastal erosion have raised the issue of whether governments can be sued over inaction that leads to a loss of property value due to flooding. These cases revolve around whether local government has a “duty to maintain” infrastructure (such as roads) that are vulnerable to repeated damage from storms, erosion, and rising seas. In Jordan v. St. Johns County (2011), Florida homeowners along Old A1A, a county road resting on a narrow spit of land between the Summer Haven River and the Atlantic Ocean, sued the county, alleging that its failure to maintain the road deprived them of access to their property, resulting in a taking. Old A1A had been so eroded over time by rising sea levels and repeated storm damage that the county had spent an average of $244,305 per mile every year between 2000 and 2005 in a futile attempt to prevent it from being washed out. Between 2005 and 2008, the damage to the road was so bad that the county enacted a building moratorium due to concerns for public safety [6].

Another common type of federal case related to flooding is one alleging breach of insurance contract. Flood insurance in the United States is paid for through the National Flood Insurance Program (NFIP). Both NFIP claims and insurance cases filed in federal district courts spike sharply after natural disasters such as hurricanes. In the three years following Hurricane Katrina’s 2005 landfall in New Orleans, the Eastern District of Louisiana received more insurance cases than any other district court in the country: 12,031 altogether [7].

Despite flood law being largely driven by case law, flooding touches multiple environmental statutes. Water quality challenges caused by erosion and nonpoint source contamination due to flooding are managed under the Clean Water Act. Flooding also has consequences for statutes such as the Emergency Planning and Right to Know Act and the Comprehensive Environmental Response, Compensation and Liability Act. A New York Times study indicates that nearly 2,500 Toxic Release Inventory sites are located on floodplains or along the coast [8]. These locations are uniquely vulnerable, and damage to them from increasingly destructive natural disasters like hurricanes can be catastrophic. Hurricane Harvey resulted in the loss of electric power to the Arkema chemical plant in Crosby, Texas, resulting in a chemical fire and the evacuation of people in a 1.5-mile radius around the plant [9]. Harvey also caused flooding (and possible damage) to thirteen of the forty-one Superfund sites in Texas [10].

[1] NOAA National Centers for Environmental Information, “U.S. Billion-Dollar Weather and Climate Disasters,” 2022. [Online]. Available: https://www.ncei.noaa.gov/access/billions/. [Accessed July 12, 2022].

[2] M. Hauer, J. Evans and D. Mishra, “Millions projected to be at risk from sea-level rise in the continental United States,” Nature Climate Change, vol. 6, pp. 691–699, 2016.

[3] C. Sensiba and M. Gerard, “U.S. Court of Federal Claims Rules on Takings Claims Against Dam Owners Stemming from Flooding During Hurricane Harvey,” Environmental Law and Policy Monitor, 24 Mar. 2020.

[4] E. Judy, “Taking on Water: The Supreme Court Rejects a Temporary Flooding Exception to Fifth Amendment Notes,” Journal of Environmental and Sustainability Law, vol. 20, no. 2, 2014.

[5] R. Percival, et al., Environmental Regulation: Law, Science, and Policy, 9th ed., Boston: Aspen Publishing, 2021.

[6] T. Ruppert, “Castles—and roads—in the sand: Do all roads lead to a taking?,” Environmental Law Reporter, vol. 48, no. 10914, 2018.

[7] Judiciary Data and Analysis Office, “Just the Facts: Insurance Case Filings Spike After Natural Disasters,” Nov. 16, 2021. [Online]. Available: https://www.uscourts.gov/news/2021/11/16/just-facts-insurance-case-filings-spike-after-natural-disasters. [Accessed June 6, 2022].

[8] H. Tabuchi, et al., “Floods Are Getting Worse, and 2,500 Chemical Sites Lie in the Water’s Path,” New York Times, Feb. 6, 2018.

[9] J. Colgan, “Harvey caused a chemical plant explosion. Is that the next face of climate change?,” Washington Post, Sept. 6, 2017.

[10] J. Dearen and M. Biesecker, “AP EXCLUSIVE: Toxic waste sites flooded in Houston area,” AP News, Sept. 3, 2017.