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A Levee Policy for the National Flood Insurance Program (1982)

Chapter: LIABILITY OF LOCAL GOVERNMENTS AND LEVEE DISTRICTS CONCERNING LEVEE MAINTENANCE AND FLOODPLAIN MANAGEMENT

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Suggested Citation:"LIABILITY OF LOCAL GOVERNMENTS AND LEVEE DISTRICTS CONCERNING LEVEE MAINTENANCE AND FLOODPLAIN MANAGEMENT." National Research Council. 1982. A Levee Policy for the National Flood Insurance Program. Washington, DC: The National Academies Press. doi: 10.17226/19600.
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Page 33
Suggested Citation:"LIABILITY OF LOCAL GOVERNMENTS AND LEVEE DISTRICTS CONCERNING LEVEE MAINTENANCE AND FLOODPLAIN MANAGEMENT." National Research Council. 1982. A Levee Policy for the National Flood Insurance Program. Washington, DC: The National Academies Press. doi: 10.17226/19600.
×
Page 34
Suggested Citation:"LIABILITY OF LOCAL GOVERNMENTS AND LEVEE DISTRICTS CONCERNING LEVEE MAINTENANCE AND FLOODPLAIN MANAGEMENT." National Research Council. 1982. A Levee Policy for the National Flood Insurance Program. Washington, DC: The National Academies Press. doi: 10.17226/19600.
×
Page 35
Suggested Citation:"LIABILITY OF LOCAL GOVERNMENTS AND LEVEE DISTRICTS CONCERNING LEVEE MAINTENANCE AND FLOODPLAIN MANAGEMENT." National Research Council. 1982. A Levee Policy for the National Flood Insurance Program. Washington, DC: The National Academies Press. doi: 10.17226/19600.
×
Page 36
Suggested Citation:"LIABILITY OF LOCAL GOVERNMENTS AND LEVEE DISTRICTS CONCERNING LEVEE MAINTENANCE AND FLOODPLAIN MANAGEMENT." National Research Council. 1982. A Levee Policy for the National Flood Insurance Program. Washington, DC: The National Academies Press. doi: 10.17226/19600.
×
Page 37
Suggested Citation:"LIABILITY OF LOCAL GOVERNMENTS AND LEVEE DISTRICTS CONCERNING LEVEE MAINTENANCE AND FLOODPLAIN MANAGEMENT." National Research Council. 1982. A Levee Policy for the National Flood Insurance Program. Washington, DC: The National Academies Press. doi: 10.17226/19600.
×
Page 38

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

7 LIABILITY OF LOCAL GOVERNMENTS AND LEVEE DISTRICTS CONCERNING LEVEE MAINTENANCE AND FLOODPLAIN MANAGEMENT DISCUSSION Chapters 5 and 6 recommend requirements to be placed on levee owners and protected communities for levee operation and maintenance and for floodplain management, respectively. It is obviously very difficult for FEMA to "police" the performance of levee districts and local governments in fulfilling these responsibilities. In the event a levee is overtopped or breached, however, potential liability may be imposed by victims against responsible local authorities who neglected to perform duties with respect to levee maintenance or floodplain management. This chapter reviews relevant legal doctrines and issues pertaining to the liability of nonfederal flood control agencies for flood-related losses. It is suggested that minimizing the possibility of liability awards to floodplain occupants or to FEMA itself to recoup flood costs is a potentially useful tool for promoting national flood loss reduction objectives within the local communities. Adoption by municipal governments of a program of constructing flood control levees raises questions of potential liability for any flood damages that result from improper design or maintenance of such systems. Where local government implements flood control measures, they become potentially liable for misfeasance" or negligence in the design or upkeep of installed facilities. While the probability of being held liable is somewhat less, they also become potentially liable for "nonfeasance" in shirking their assumed damage reduction responsibilities by not providing needed facilities. They are also potentially liable should flooding result from a specific public project such as water ponded behind an undersized or blocked culvert beneath a new highway. In the past, the liability of municipal corporations for harm resulting from the negligence of their employees was limited by the doctrine of sovereign immunity. Under this doctrine, municipal governments were frequently shielded from liability on the ground that they were agents of the state and as such could not be sued in the state's courts without giving their permission. As the activities of municipal governments increased in complexity during the early twentieth century, this doctrine became viewed as inflicting hardship upon victims of municipal negligence. A major qualification evolved under which municipal functions were viewed as being either "governmental" or "proprietary" according to their nature. Matters -33-

that were viewed as strictly governmental, in which the municipality acted strictly as an agent of the state, were held to be still subject to the protection of sovereign immunity. Other functions that the municipality undertook in its corporate capacity and on a discretionary basis were considered not to be covered by the sovereign immunity doctrine. 18 McQuillin, Municipal Corporations, Section 53.23 (3rd ed. 1971). The governmental-proprietary distinction naturally requires clarification as to the status of particular activities. Police and fire protection generally qualified as governmental, while such activities as garbage collection, recreation programs, and libraries have usually been viewed as proprietary. The status of flood control and drainage activities has also been held to be proprietary in certain jurisdictions. In Krantz v. City of Hutchinson, 196 P.2d 227 (Kans., 1948), the construction of an emergency flood control dike by the defendant outside its corporate limits was held to be proprietary: Having regard to the fundamental basis upon which the distinction between governmental and proprietary functions is based, we are unable to say that the acts of the city officials here complained of were in furtherance of a governmental function. They were not acts performed as an agency of the state, expressive of its sovereignty. They were not performed in promotion of the public welfare generally. They were performed for the special financial benefit of the city and its property, and of its property owners. That was the controlling consideration. The acts were essentially transactions by and for the city in its individual corporate capacity. Plaintiffs accordingly recovered damages for flooding of their land attributable to the emergency dike. This case, it should be noted, could well have been decided to the contrary, that emergency flood control is a governmental power and that the municipality should not be liable. Strictly speaking, Krantz did not involve negligence, but rather a "taking" of a flood drainage easement without payment of compensation. Ponding of flood waters upon private land through artificial devices gives rise to liability as a "taking" of private land for public use without just compensation in violation of the Fifth Amendment to the U.S. Constitution. Baker v. Planning Board of Framingham. 228 N.E.2d 831 (Mass., 1967). The governmental-proprietary distinction has been eroded in practice due to the irrational and unjust results of its strict application in many cases. Many states by statute or case law have abrogated the doctrine in favor of a broader scope of municipal liability to those suffering harm as a result of public actions. Recent decisions involving flood and drainage considerations do not generally discuss the distinction but turn immediately to the question of "proximate cause" of the harm, e.g., did the action of the municipality cause the harm suffered by the plaintiff. In Ingram v. City of Redondo Beach, 119 Cal. Rptr. 688 (1975), plaintiffs suffered -34-

flood damage as a result of the collapse of "an earthen retaining wall of a drainage sump" constructed and maintained by the defendant city. The defendant maintained that the cause of the damage was an extraordinary rainstorm that exceeded the design capacity of the facility in question. The court held that "in the absence of some other reason, inverse condemnation liability should normally follow" from the failure of defendant's structure, citing Sheffet v. County of Los Angeles. 84 Cal. Rptr. 11 (1970). The matter was remanded to the trial court to determine "the proximate cause" of the damage. Another recent California decision, Carlotto Ltd. v. County of Ventura. 121 Cal. Rptr. 171 (1975), involved the failure of defendant's "debris dam" during a heavy rainstorm. The defendant county had failed to maintain its debris basin behind the dam with the result that only 2.5 acre feet of its original 12.7 acre feet of water storage capacity remained at the time of the storm. The trial court held the county liable for negligence to the extent of 12.1 percent of the plaintiff's proven damages, according to the court's estimate of the increased flooding due to clogging of the debris basin. The liability of the county was upheld on appeal but the trial court's formula for apportionment was reversed with the case remanded for further findings on the degree of fault on the part of the county. A Colorado case, Barr v. Game Fish and Parks Commissioner of Colorado. 497 P.2d 340 (1972), rejected the defense that failure of a dam was due to an "act of God" in the form of extraordinary rainfall. The court held that the dam was improperly designed for the "maximum probable flood," which the defendant should have foreseen. Quoting Baum v. County of Scotts Bluff. 109 N.W.2d 295 (1964): In order for a flood to come within the term act of God, it must have been so unusual and extraordinary a manifestation of nature as could not under normal conditions have been reasonably anticipated or expected. . . . An act of God does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have prevented its effect. It is enough that the flooding should be such as human foresight could not be reasonably expected to anticipate and whether it comes within this description is ordinarily a question of fact. (Emphasis supplied by the Barr court) Improper maintenance of levees was specifically addressed in a recent federal decision, Florida East Coast Railway Company v. U.S. v. Central and Southern Florida Flood Control District et al., 519 F.2d 1184 (U.S. Court of Appeals, 5th Circuit, 1975).This case involved flood damage to plaintiff's railroad right of way on two occasions due to failure of a flood control levee designed and constructed by the Corps of Engineers and owned and operated by the defendant flood control district. The court held the federal government to be immune to liability under Section 702c of the Flood Control Act of 1928, which states: -35-

No 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. Citing Stover v. U.S.. 332 F.2D 204 (9th Circuit, 1968), cert. den. 85 S. Ct. 276 (1964), the court-rejected the contention that the immunity exempted surface water artificially collected and impounded as distinct from natural flow. Despite the immunity of the federal government, the flood control district was held liable for its participation in the project: Although the Corps had primary responsibility for the design of the project, the trial judge found that the Flood Control District worked closely with the Corps in the planning stages. The Flood Control District, . . . "reviewed in detail, and commented on the General Design Memorandum . . . , the Detailed Design Memorandum . . . and the Project Plans and Specifications. It was responsible for alignment of the project. The Flood Control District also provided advice and assistance to the Corps with regard to the actual construction of the project." In addition the Flood Control District furnished 15 percent of the funds for completing the undertaking. It was further found that after an initial washout in 1969, "... neither the Flood Control District nor the Corps warned the railroad or took steps necessary to correct the defects." A second washout in 1970 caused $438,000 of damage to the plantiff. The flood control district was accordingly found liable: . . . for permitting the construction of a nuisance on its land and for trespass by reason of the rapid runoff of water it had caused. It was also held liable for negligence as owner of failure to assure that the project was properly designed, constructed and operated, and vicariously as a joint venturer with the Corps. These grounds of liability were upheld on appeal. The preceding cases have each involved liability to flood victims arising from improper design or maintenance of local flood control facilities. A potential new specter of liability has appeared in a suit filed in 1981 by the Federal Emergency Management Agency (FEMA) in the Federal District Court for the Eastern District of Louisiana against two parishes, four levee districts, and several private developers. The purpose of the suit is to recover some $91 million in flood insurance payments by FEMA to persons suffering flood damage allegedly as a result of the collective negligence of the defendants in operating and maintaining flood control and drainage facilities. As of March, 1982, this suit is still in its early stages with no results to date. -36-

A final question to be discussed here involves the potential liability of a municipal body for approving and/or participating in private development, which causes increased flooding. Until recently, municipalities were generally not held liable for wrongfully issuing building permits, failing to enforce an ordinance, or approving defective subdivision plans that led to subsequent flood damage. Breiner v. C and P Home Builders. Inc.. 536 F.2d 27 (3rd Circuit, 1976). However, two recent state decisions have held local governments liable where they closely participated in or encouraged the private development process that altered natural flooding patterns. In County of Clark v. Powers. 611 P.2d 1072 (Nev., 1980), a county and a flood control district were held liable for flood damages resulting from private development that caused greater surface runoff across defendant's land. Although no local flood control project was involved, the court found that: The County participated actively in the development of these lands, both by its own planning, design, engineering, and construction activities and by its adoption of the similar activities of various private developers as part of the County's master plan for the drainage and flood control of the area. The court went on to find that: . . . the economic costs incident to the expulsion of surface waters in the transformation of rural and semi-rural areas into urban and suburban communities should not be borne solely by adjoining land owners. A similar conclusion was reached by the Ohio Court of Appeals in Myotte v. Village of Mayfield, 375 N.E.2d 816 (1977). In this case, the plaintiff homeowner experienced increased flooding as a result of an inadequate sewer pipe crossing her property conveying surface runoff from a newly constructed industrial park. The village was held liable for its role in approving the industrial park and for failure to expand the drainage pipe. The court found specifically that: The Village of Mayfield had repeatedly been made aware of the recurring flooding of the Myotte property, and it even took limited measures towards improving the flood situation by approving the additional 42-inch pipes for the storm sewer system. However, the Village failed to implement a real solution to the flooding problem, such as widening the existing water course on the Myotte property so that the increased flow of water from the industrial park would be accommodated. Such a solution would represent a relatively small cost to the Village, especially in light of the tax income which it receives from the industrial park, and in contrast to the serious harm caused to the market value of Mrs. Myotte's land if the flooding persists. -37-

CONCLUSION The foregoing cases suggest that courts are (1) becoming more sophisticated in their handling of flood and drainage problems, and (2) displaying greater sympathy for the plight of land owners subjected to increased flooding by virtue of municipal negligence. Some of these cases turn on the question of actual operation and maintenance of a drainage or flood control structure (Ingram, Carlotto Ltd., and Florida East Coast Railway Company). Others involve "taking" of plaintiff's land for a drainage easement without compensation (Krantz, Baker, and Myotte). In at least two cases, the courts rejected defendant's claim that the blame should be attributed to other parties, e.g., the federal government (Florida East Coast Railway Company) or private developers (County of Clark). Furthermore, courts have rejected that defense that damage arose due to "an act of God" (Barr) or that the defendant's actions were not the "proximate cause" of the damage (Ingram and Carlotto Ltd.). It is therefore apparent that civil liability for flood damages is becoming increasingly important as a tool by which local governments and special districts may be compelled to design and operate flood control and drainage facilities properly and to administer their other corporate powers in accordance with hydrologic realities. The committee recommends: • FEMA should help make local governments and special districts aware of the possibility of liability for actions or nonactions that aggravate flood hazards. • FEMA should, in appropriate cases, seek to recoup federal flood-related costs (including flood insurance payments, disaster assistance, etc.) from levee owners/operators when such costs arise from improper operation and maintenance of levee and associated interior drainage facilities. -38-

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