Maybe it’s a result of overdevelopment, global warming, unusual weather or coincidence. But we’ve seen an unusually high number of flooding cases this year. And this week’s Supreme Court decision will make them easier to litigate.
The “Takings Clause” of the United States Constitution states that the government cannot to take private property for public use unless it pays just compensation to the property owner. On December 4, 2012 the Supreme Court decided that government conduct that results in temporary or intermittent flooding which interferes with private property can constitute a “taking.”
Arkansas Game and Fish Commission v. United States, 568 US ___ ,2012 WL 6012490 (Dec. 4, 2012) involved a 2300 acre wildlife management area that was forested with multiple hardwood oak species and served as a venue for recreation and hunting. The Army Corps of Engineers constructed a dam upstream from the wildlife area and manipulated release of water from the Dam to benefit other downstream farmers. The intentional flooding during tree-growing season destroyed timber and substantially changed the character of the terrain, necessitating costly reclamation measures.
In finding that a compensable taking occurred, the court considered the flood duration, whether the flooding was a foreseeable result of government action, the character of the land at issue and the property owner’s “reasonable-investment based expectation” regarding the land’s use.
With private development reducing permeable land and government maintenance and control over many drainage ways, this case will likely open the floodgates of litigation over downstream impacts and may result in positive changes to how we manage surface water runoff. Now, more than ever, property owners will want to consider whether government action caused flooding of their property.