When Flooding Is Not a Taking

New York Times
5 October 2012

The takings clause of the Constitution’s Fifth Amendment ensures that private property cannot be taken for public use without fair compensation. A classic example is the government’s exercise of eminent domain power to build a highway; if the road cuts through private land, the government owes the owners payment equal to fair market value. That principle applies when the government builds a dam, and water and silt overflow land, permanently destroying or limiting its value. But for 88 years, the position of the Supreme Court has been that “temporary invasion” of land by flooding is not a taking because water recedes.

This week the court reconsidered that rule in a case involving a 36-square-mile tract of land maintained by the Arkansas Game and Fish Commission for wildlife, timber and hunting. The tract is 115 miles down the Black River from Missouri’s Clearwater Dam. The Army Corps of Engineers caused temporary flooding on that land for six years in the 1990s with quick releases of water from the dam in summer. It increased the height of flooding to shorten the flooding period and give farmers upstream more time to harvest crops. As a result, thousands of acres of trees were destroyed or weakened.

The Arkansas commission contends that the corps knew the releases would cause flooding and damage, which amounted to a taking. It won a damage judgment of $5.8 million from the United States government in a special federal court, for lost timber and the cost of restoring the habitat.

The United States Court of Appeals for the Federal Circuit reversed that decision, ruling 2 to 1 that the flooding was not a taking. That is the right result.

The Clearwater Dam was completed in 1948 to provide flood protection below the dam, including for the Arkansas land that routinely flooded before the dam’s construction. It is one of almost 700 dams the Army Corps of Engineers operates, with a range of purposes that include supplying water and providing recreation and hydropower in addition to controlling floods.

Between 2000 and 2009, the agency’s flood-control projects saved an estimated $22.3 billion a year from flood damage. If it and other agencies that manage natural resources for the government had to worry about liability for takings for every management decision, they would lose the flexibility they need. The Supreme Court’s longtime rule about temporary flooding gives the government agencies that flexibility. It does not take away the Arkansas commission’s right to sue the government for a form of trespass or on other grounds.