United States is immune from flood claims

With floodwaters of the Missouri and Mississippi rivers causing widespread devastation, some are asking if the Army Corps of Engineers can be held responsible for the damages. Unfortunately, for lawsuits based on a negligence or similar theory, the answer is generally “no.” While there may be federal programs that offer assistance in the forms of low interest loans or emergency relief, the law clearly states that there is no liability for the United States due to floods or floodwaters.

The Flood Control Act of 1928 (33 U.S.C. §702c) states: “[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.”

The 8th Circuit interpreted this law in National Mfg. Co. v. U.S. 210 F.2d 263 (8th Cir. 1954). There, plaintiffs brought action under the Federal Tort Claims Act after their business was flooded. The Corps of Engineers committed “negligent and careless acts and omissions,” and “carelessly and negligently disseminated misinformation respecting the course and action of the flood waters.” The fact that that the river was going to overflow its banks on July 13, 1951 and inundate plantiffs’ business was readily accessible to Corps officers. Because of the Corps negligent acts and omissions, plaintiffs had a false sense of security and therefore, did not take the appropriate protective measures to protect their property. The court held that the 1928 Act bars liability due to any kind of damage “by floods or flood waters,” as well as any damages that result, even indirectly, from floods, even if the government’s negligence contributed to plaintiffs damages. “Uniformly and throughout the country at any place where there is damage ‘from’ or ‘by’ a flood . . . no liability of any kind may . . . rest upon the United States.” Id.at 271.

It is possible that there may be state liability under certain circumstances. In Schneider et al. v. State of Iowa, ___ N.W. 2d ____ (Iowa 2010) No. 07-0887 the Iowa Supreme Court ruled that Iowa has no immunity for improper bridge design which violates Iowa laws on floodways and highway construction and which results in flood damage.

In 1994 the Iowa Department of Transportation (DOT) completed construction of a bridge spanning Quarter Section Run Creek, a stream flowing through Denver, Iowa. In a flood insurance study commissioned by the city of Denver 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.'” K & W Elec, Inc. v. State, 712 N.W.2d 107, 110 (Iowa 2006) (quoting 1984 Federal Emergency Management Agency flood insurance study). Unfortunately, the DOT’s bridge and related structures were only designed to accommodate a 50-year flood event. The new bridge, consisting of twin structures 168 feet in length, spanned the creek, but not the entire floodway. In May 1999, Denver a flood which damaged thirty-five homes and thirty-four businesses. Landowners sued the State of Iowa alleging its negligent design and construction of a highway project caused the resulting damages. The State moved for summary judgment asserting statutory immunities. The district court granted the motion, the landowners appealed, and the court of appeals affirmed.

The State of Iowa filed a motion for summary judgment asserting that the State was immune under the Tort Claims Act, Iowa Code section 669.14(1). The district court granted the motion, finding that the design and construction of the bypass were discretionary functions based on “considerable planning” and a “balancing of governmental priorities and competing governmental demands.” The district court further concluded the State was entitled to summary judgment on the plaintiffs’ claims for damages for permanent devaluation of their properties under section 669.14(8) because the bridge was constructed or reconstructed in accordance with a generally recognized engineering or design theory. The Iowa Supreme Court found that Iowa Code section 455B.275(1) prohibits floodway obstructions or encroachments, including fill, new construction, or any development within a floodway without the approval of the DNR. In response to the State’s argument that the plaintiffs had not cited this statute, the plaintiffs countered by noting that they had cited an analogous federal statute. The prohibition in section 455B.275(1) was therefore held to invalidate the State’s argument that the applicable function was discretionary. The Court next addressed the “state of the art” defense at section 669.14(8). On this issue, the plaintiffs failed. However, this failure only affected the permanency of the injury. The Court next turned to the underlying issue of liability. The court noted that Iowa Code section 314.7 provides prohibits those in charge of improvements on a highway from turning “the natural drainage of the surface water to the injury of adjoining owners.” The case was sent back to the district court.

I have not researched whether there may be similar instances under federal law in which the immunity has been waived through illegal actions. However, the Iowa statute is far more complicated than the federal law’s blanket ban on liability.

— James L. Pray

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About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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