77 Pages Posted: 29 Aug 2007 Last revised: 21 Nov 2008
Date Written: August 20, 2007
In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a "manmade" disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams; the perverse incentives created by the national flood insurance program; and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers.
Setting forth what we call the theory of "double takes," this article argues that property owners in flood-prone areas "take" taxpayer dollars through two sometimes-overlapping mechanisms. First, a package of subsidies - including flood control structures, federal flood insurance, and after-the-fact disaster relief - enables and even encourages construction in high-risk areas. Second, landowners denied permits to develop floodplain and coastal property can "take" federal dollars in the form of compensation awarded under the Fifth Amendment. Such claims for compensation are fostered by the 1992 decision, Lucas v. South Carolina Coastal Council, in which the Supreme Court endorsed the view that coastal areas are "valueless" in their natural state - a dangerous misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.
Keywords: Regulatory Takings, Flood Control, Water Resources, Land Use, Insurance, Disaster
Suggested Citation: Suggested Citation
Klein, Christine A. and Zellmer, Sandra B., Mississippi River Stories: Lessons from a Century of Unnatural Disasters (August 20, 2007). Southern Methodist University Law Review, Vol. 60, p. 1471, 2007. Available at SSRN: https://ssrn.com/abstract=1010611 or http://dx.doi.org/10.2139/ssrn.1010611