PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Tuesday, May 17, 2011

Towns in the Floodway

In case you've been living in a cave for the last few months, it's been raining a lot in the middle of the country.  Here in Lexington, we've got lots of wet basements and leaky roofs; But along the Mississippi River, the consequences of too much water are far more serious.  In 1927, for example, the river flooded 27,000 square miles, displaced 600,000 people, killed 250, and caused $400 million in property damage.

As water levels of the Mississippi near record levels, the Army Corps of Engineers is taking steps to ensure that there isn't a repeat of 1927.  This weekend, the corp opened the Morganza Spillway for the first time in 40 years.  The Morgnaza is a huge flood control system that can divert water out of the Mississippi and away from New Orleans and Baton Rougue.  Unfortunately, the water has to go somewhere else.  The water that flows out of the Morganza will pour across farmland and destroy homes before heading into the Gulf of Mexico.

The property question is, what happens to the towns and farmland in the floodway?  Why can the government flood homes here to save property there?  Does the flooding caused by the Corp amount to a taking?

It seems that it does not.  According to Tulane University geographer Richard Campanella, the federal government purchased flow easements from the property owners in the 1950s that allows it to store water on the land. The Corp also sends residents yearly written notices to remind them of the possibility of opening the floodway.  Despite the threat of flooding, a number of folks took the calculated risk to invest in the flood plain.

Steve Clowney

http://lawprofessors.typepad.com/property/2011/05/flooding-spillways-and-takings-along-the-mississippi.html

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Comments

Great post. I was wondering about the takings issue.

Posted by: Harry | May 17, 2011 7:15:35 AM

Notwithstanding the existence of flowage easements on the affected properties, there is still a fair chance that the owners of the land flooded by the opening of the Morganza Spillway will file a takings suit against the government. The owners of the Missouri farmland flooded when the Corps breached the Birds Point levee near Cairo, IL a couple of weeks ago have already filed a takings suit in the U.S. Court of Federal Claims (Case No. 11-275), even though those properties are also located in a floodway and are subject to flowage easements.

Posted by: Jeff | May 19, 2011 7:14:47 AM

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