On Friday, June 3, I was helping fill sandbags in Plattsmouth, Nebraska in an effort to protect the waste treament and water treatment plants from expected flooding along the Missouri river. The volunteer turnout was tremendous but somber as the discussions obviously centered on the potential damage and whether there was anything that could have been done earlier to prevent the possible catastrophe. Rumors swirled that the Army Corps of Engineers was thinking of purposely breaching dikes north of the Omaha area in an attempt to prevent catastrophic flooding on the metropolitan area. Plattsmouth would benefit being south of Omaha. However, it had to be mentioned that any breach in the rural areas north of Omaha would flood thousands of acres of farmland and potentially cripple the livelihoods of several farming operations.
Whether the rumors to breach a dike were true, I began to wonder about the legal ramifications of purposely flooding rural farmland in an effort to save a metropolitan area. Unfortunately, the farmers in Southeast Missouri have already faced this issue. On May 2, 2011 the Army Corps of Engineers breached a 2 mile stretch of the Birds Point Levee near the confluence of the Ohio and Mississippi rivers. The breach, which effectively saved the town of Cairo, Illinois, flooded approximately 130,000 acres of Missouri farmland and approximately 90 homes. For more information on the Corps’ action check out Robert Koenig’s and Nancy Fowler’s article in the St. Louis Beacon.
Missouri officials had filed a lawsuit in federal court to stop the the Corps from detonating the levee. However, the court recognized that the Corps’ plan was a preconceived strategy authorized under Flood Control Act which established plans to detonate levees to allow water access into designated floodways; in this case the Birds Point-New Madrid Floodway. The court found that the Corps’ duties prevailed over Missouri’s claim that the intentional flooding would cause unlawful pollution on Missouri’s Clean Water Act. Furthermore, the court found the Corps’ decision un-reviewable since the plan was specifically authorized by Congress. State of Missouri v. U.S. Army Corps. of Engineers, 2011 U.S. Dist. LEXIS 46145.
Despite the court’s decision a class action suit has been filed against the Corps alleging damages under the 5th amendment takings clause. The lawsuit claims that the Corps did not have the proper easements to flood the farmland and the flooding constituted an unlawful taking of the use and possession of those 130,000 acres. See article at Farm World. The approximate damage to the farmland and homes is estimated at 300 million dollars.
The Corps allegedly maintained 80,892 acres of easements in the floodway leaving approximately 49,108 acres without easements. However, some of those easements may allow recovery of damages from the Corps.
To be fair, the Corps has been between a rock and hard place when implementing flood control strategies across the country. Furthermore, I don’t know if the Corps has any actual plans to breach dikes north of Omaha as the discussion on Friday was second and third hand information. Howeiver, it will be interesting to see how the Missouri class action suit progresses and whether such a successful suit has a chilling effect on future flood control actions by the Corps; including actions taken in and around Omaha.