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Thursday, August 30, 2007

Klein and Zellmer on Property, Floods and Hurricanes

Christine A. Klein and Sandra B. Zellmer (University of Florida College of Law) have posted Mississippi River Stories: Lessons from a Century of Floods and Hurricanes on SSRN. Here's the abstract:

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams; the perverse incentives created by the national flood insurance program; and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers.

Setting forth what we call the theory of “double takes,” this article argues that improvident coastal and floodplain development is facilitated by a pair of taxpayer-funded subsidies that unintentionally exacerbate the flood dangers faced by low-lying communities. First, floodplain developers “take” federal dollars in the form of subsidized flood control structures that enable construction in otherwise unbuildable areas. As a consequence, many floodplain residents are lured into harm's way. Alternatively, would-be developers may “take” federal dollars in the form of compensation under the Fifth Amendment, paid by states and local communities that forbid risky construction in flood-prone areas. Such claims for compensation are fostered by the 1992 decision, Lucas v. South Carolina Coastal Council, in which the Supreme Court endorsed the view that coastal areas are “valueless” in their natural state - a glaring misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.

Ben Barros

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Land Use, Natural Resources, New Orleans, Recent Scholarship, Takings | Permalink

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