Over the past century, the federal government has undertaken a number of civil works projects to prevent widespread damage from flooding of various waterways. These flood control projects generally have been designed and constructed by the U.S. Army Corps of Engineers (Corps). Despite the existence of these flood control structures, floods have caused major damage to various regions of the country. Hurricane Katrina was the most costly natural disaster ever to hit the United States. Striking land in August 2005 as a Category 3 hurricane, Hurricane Katrina left 80% of New Orleans under water. Since Katrina, a number of major floods in the midwestern states have caused significant damage. In particular, heightened flows of the Mississippi River in 2011 have resulted in historic flooding and controversy over the use of floodways to redirect floodwaters. In the wake of these floods, the issue of federal liability for flood damage is receiving attention in the media and in Congress.
The costly and unprecedented nature of recent flood damage has led to an upsurge in litigation over flood damage liability. Some lawsuits filed against the federal government, particularly after Katrina, assert government liability for damages resulting from the failure of levees and floodwalls designed and constructed by the Corps. Other lawsuits claim federal liability for damages resulting from the Corps’ decision to activate floodways during the 2011 Mississippi River flooding.
The Federal Tort Claims Act (FTCA) and the Flood Control Act of 1928 (FCA) may protect the government from liability for some flood-related claims. Under the FTCA, the federal government is exempt from liability for discretionary actions. Under the FCA, the government cannot be sued for damages resulting from federally supported damage reduction projects or floodwaters.
This report examines federal liability for flood damage and analyzes legal defenses available to the federal government. Specifically, it provides an overview of the discretionary function exemption under the FTCA and immunity under the FCA as applied to Corps projects. The report also considers the Corps’ potential liability for damages caused by levee failure during Hurricane Katrina and the activation of floodways during the 2011 Mississippi flooding