Flooding in Iowa project receives national and regional awards

The Flooding in Iowa project (accessible here and via the “Flooding in Iowa” tab at the top) received the national Educational Materials Award for 2015 from the National Association of Community Development Extension Professionals (NACDEP), and the regional Educational Materials Award from the NACDEP North Central Region.  These awards are given annually to recognize “outstanding materials that educate through credible, accurate and concise information.”  Both awards will be presented during the NACDEP Annual Conference, May 17-20 in Little Rock, Arkansas.

The Flooding in Iowa project is a series of 21 short, web-based videos and related materials designed to educate the public about floodplains, flood risks and basic floodplain management principles.

US Supreme Court says no bright-line exception to the Takings Clause for temporary flooding caused by Corps action

by Gary Taylor

Arkansas Game and Fish Commission v. United States
(U.S. Supreme Court, December 4, 2012)

The Arkansas Game and Fish Commission owns a wildlife management area along the Black River that that is forested with multiple hardwood oak species and serves as a venue for recreation and hunting. In 1948, the U. S. Army Corps of Engineers constructed the Clearwater Dam upstream from the management area and adopted the Water Control Manual, which sets seasonally varying rates for the release of water from the dam. Periodically from 1993 until 2000, the Corps, at the request of farmers, authorized deviations from the Manual that extended flooding into the management area’s peak timber growing season. The Commission objected to the deviations on the ground that they adversely impacted the management area, and opposed the Corps’ proposal to make the temporary deviations part of the manual’s permanent water-release plan. After evaluating the effect of the deviations, the Corps abandoned the proposed Manual revision and ceased its temporary deviations.

The Commission sued the United States, alleging that the temporary deviations constituted a taking of property that entitled the Commission to compensation. The Commission maintained that the deviations caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber in the Area and a substantial change in the character of the terrain, necessitating costly reclamation measures. The Court of Federal Claims’ entered a $5.8 million judgment in favor of the Commission; however, this judgment was reversed by the Court of Appeals. The Court of Appeals acknowledged that temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. It held, however, that government-induced flooding can give rise to a taking claim only if the flooding is “permanent or inevitably recurring.”

The U.S. Supreme Court disagreed.  Citing back to Penn Central the Court noted that takings claims most frequently turn on situation-specific factual inquiries, as opposed to bright-line legal tests. The Court cited its own cases that affirmed that government-induced flooding, and seasonally recurring flooding, can constitute takings. The Court has also ruled that takings temporary in duration can be compensable. None of the Court’s previous decisions authorizes a blanket temporary-flooding exception to the Court’s Takings Clause jurisprudence.  The Court interpreted The Corp’s primary argument as being that reversing the Court of Appeal’s decision risks disrupting public works dedicated to flood control. While the public interests in this case are important, the Court did not consider them to be categorically different from the interests at stake in the many other Takings Clause cases in which the Court has rejected similar arguments.  The Court declined to address the Corps alternative argument that damage to property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore is not compensable under the Takings Clause because it was first tendered at oral argument and not aired in the courts below.

Because the Federal Circuit rested its decision entirely on the temporary duration of the flooding it did not address other factors relevant to the takings inquiry, such as the degree to which the invasion is intended or is the foreseeable result of authorized government action. the character of the land at issue, the owner’s “reasonable investment-backed expectations” regarding the land’s use, and the severity of the interference. Thus, remand to address these issues was warranted.

Iowa DOT cannot claim discretionary immunity from flood damages resulting from Highway 63 bridge

by Gary Taylor

Schneider, et. al. v. State of Iowa
(Iowa Supreme Court, September 3, 2010)

In the late 1980s, the Iowa Department of Transportation (DOT) developed a plan to relocate a portion of Highway 63 to bypass the city of Denver, Iowa. The plan called for the construction of a four-lane divided highway along the west side of the city and a bridge spanning Quarter Section Run Creek, a stream flowing through Denver. The original construction of the bypass commenced in 1993 and concluded in 1994.
In a flood insurance study commissioned by the city in 1990, the creek was designated as a “regulatory floodway.” A floodway “‘is the channel of a stream plus any adjacent flood plain areas that must be kept free of encroachment so that [a] 100-year flood can be carried without substantial increases in flood heights.’” The bridge and related structures were designed to accommodate a 50-year flood event.  A higher, 100-year flood standard was typically used by the DOT when sizing bridges in flood insurance study areas and in other locations where the risk of high damage would be created for upstream businesses and homes. The State’s expert conceded the higher standard would have been utilized in the design of the bridge had it been designed for construction in a floodway, but noted the State did not learn the site had been designated as a floodway until after the bridge was built.

In May 1999, Denver experienced an extraordinary rain event and resulting flood which damaged thirty-five homes and thirty-four businesses. The intensity of the rain produced a volume of rainwater in the floodway consistent with the magnitude of a 250-year flood.  A flood study undertaken by the United States Department of Agriculture Natural Resources Conservation Service concluded the embankment constructed for the bypass “cut off a large portion of the floodway,” causing water moving through it to “back up” during the 1999 event. Computer models prepared for the study illustrated that the bypass structures increased the depth of the 1999 flood waters by as much as three feet in certain areas of the city and caused flooding in a part of the city that would not have flooded but for the construction of the bypass. The models also produced evidence tending to prove the bridge and related structures would have caused flood waters in a 100-year flood event to rise higher in some parts of Denver upstream from the bridge than would have been the case had the bridge and related structures not been placed in the floodway. Following a lengthy period of study and investigation of a range of options, the State chose to redesign and extend the bridge. The reconstruction of the bridge and the reconfiguration of the floodway in 2004 and 2005 modified the elevation of the floodway along the creek and substantially enhanced the capacity of the floodway to convey water away from the city.  The reconstruction brought the bridge and related structures into substantial compliance with the 100-year flood standard.

Claims addressing the 1993 bridge.  Owners of several properties damaged in the 1999 flood filed suit alleging the State negligently designed and constructed the first bridge. The landowners alleged the State breached a common-law duty by designing and constructing the bridge in a manner that obstructed the floodway and increased the depth of floodwater during the 1999 event. The landowners further alleged the State breached a duty derived from Iowa Code section 314.7 proscribing disruption of the natural drainage of surface water when improving or maintaining a highway. The State’s answer asserted immunity from liability under Iowa Code section 669.14 because the design and construction of the project were discretionary functions and because the project conformed with a generally recognized engineering or safety standard, criteria, or design theory prevailing at the time of its design and construction or reconstruction. The district court found in favor of the DOT, and the Court of Appeals affirmed based on the immunity provisions in 669.14(1). The Iowa Supreme Court granted further review to determine whether the State’s immunity for discretionary functions was applicable under the circumstances presented in this case.

After addressing several procedural matters, the Iowa Supreme Court focused on the issue of discretionary function immunity.  The Court disagreed with the conclusions of the lower courts.  “Given the clear statutory and regulatory prohibitions against the creation of floodway encroachments causing increased risk of loss to upstream properties in the event of a 100-year flood, we conclude the discretionary function defense has no application in this case. The State’s employees could not choose to ignore these prohibitions, and they therefore did not have available to them a choice to design and build encroaching, noncompliant structures in the floodway. As there was no such choice available, the employees of the State who designed and built the bridge did not perform discretionary functions for which section 669.14(1) would offer immunity.”  Because a fact issue remains on the question of whether the original design and construction of the bridge as a floodway encroachment violated prevailing engineering standards in existence at the time of the original design and construction of the project, and/or violated the DOT’s responsibility to keep from diverting natural drainage waters onto adjoining landowners, this portion of the case was remanded. 

Claims addressing the reconstructed bridge.  The landowners claimed permanent devaluation of their properties by the reconstruction of the bridge and rechanneling of the floodway, saying that the reconstructed bridge still encroaches upon the floodway.  However, the Court concluded that the record demonstrates the reconstruction design satisfied the 100-year design standard and achieved the approval of the DNR. The plaintiffs failed to produce evidence tending to prove the reconstructed bridge does not comply with the 100-year standard, the generally accepted engineering standard in existence at the time of the reconstruction.  Therefore, the DOT was entitled to immunity under Iowa Code 669.14(8) which grants immunity if construction was “in accordance with a generally recognized engineering or safety standard, criteria, or design theory in existence at the time of the construction or reconstruction.”

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