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![handle is hein.crs/crsmthaafpa0001 and id is 1 raw text is: CRS Reports & Analysis
Legal Sidebar
Extreme Weather Events and Government
Compensation
09/22/2015
On May 1, 2015, developments in two courts sent the same signal: a government sometimes has to compensate land
owners for takings of their property rights under the Constitution when government measures and extreme weather
events such as hurricanes or droughts intersect. One case, from Louisiana, involves too much water; the other, from
Texas, too little.
The Louisiana case dealt with the Mississippi River-Gulf Outlet, popularly referred to as MR GO (spoken as Mister
Go). MR GO is a 76-mile navigational channel authorized by Congress and built and operated by the Corps of
Engineers to facilitate vessel traffic between New Orleans and the Gulf of Mexico. Following Hurricane Katrina in
2005, owners of flooded land in and near the Lower Ninth Ward of New Orleans alleged that the Army Corps of
Engineers had constructed, expanded, and operated MR GO in a manner that significantly increased storm surge up the
channel, resulting in flooding of their properties during Hurricane Katrina and subsequent hurricanes and storms.
Based on such allegations, they sought compensation in the U.S. Court of Federal Claims (CFC) for a taking of their
property.
Initially, the CFC stayed the takings case while several hundred tort claims against the United States also based on
Hurricane Katrina flooding were adjudicated in federal district court. Once those claims were denied by the Fifth
Circuit, the CFC reactivated the takings claims. Relying heavily on the Supreme Court's recent flooding/taking opinion
in Arkansas Game Fish Commn v. nited tates, the CFC held in tB ard PariS I ' t t in May
that the Corps' involvement with MR GO over the decades had effected a temporary physical taking of plaintiffs'
properties by the aforementioned flooding. If upheld on appeal, this decision will underscore that government water
projects that contribute to damage caused by extreme weather events may result in takings liability. And this liability,
based as it is on the Constitution, trumps any applicable exemptions from the Fderal 1 Tr aim Ac s waiver of
sovereign immunity and even the explicit FLoo Control Act r on federal liability for flood waters.
The Texas case involves the Edwards Aquifer, which supplies groundwater for irrigation, municipal, and industrial uses
in south central Texas. Under Texas law, withdrawals of groundwater require a permit, obtained from the Edwards
Aquifer Authority established by the state in 1995. In the majority of states, regulatory restrictions on groundwater
withdrawal create little possibility of the state having to compensate the landowner for a taking of property rights:
while £ traditionally have treated groundwater rights as constitutionally protected, they have also seen them as
only conditional rights of use and thus have resisted allowing compensation for government limitation of groundwater
withdrawals. In 2012, however, the Texas Supreme Court in Edwards Aquifer Auth. v. Day adopted the view that a
land owner owns the groundwater beneath his land outright (subject to the right of capture), analogizing to the state's
law for oil and gas. Accordingly, Day enhanced the possibility of takings requiring compensation when the
Authority did not grant permits for all the groundwater a land owner might desire. And that was precisely the result the
following year, 2013, in EdwardsjAuiferAuthoriv v. Brat-Q,. There, a commercial pecan grower was denied a
groundwater withdrawal permit for one orchard over the Edwards Aquifer, and granted a limited permit for a second
one. The Texas intermediate appellate court found a regulatory taking of the grower's groundwater withdrawal rights,
even while noting that, for land over the Edwards Aquifer, demand [for groundwater] exceeds supply and
[r]egulation is essential to [groundwater's] conservation and use. On May 1, 2015, the Texas Supreme Court denied](ViewImageLocal?handle=hein.crs/crsmthaafpa0001&div=1&collection=&method=preview&ext=.png&size=3)