What is the Corps’ Potential Liability for Missouri River Flooding?
The Corps of Engineers maintains extensive infrastructure, including six of the country’s largest reservoirs, on the mainstem of the Missouri River. One of the dominant functions of those facilities is to prevent widespread damage from flooding. Yet, runoff above Sioux City, for May and June 2011 totaled 24.3 million acre feet, just shy of the normal annual runoff in the Basin. In response, the Corps has made record releases from all the mainstem dams for months. These operations have destroyed private agricultural lands, flooded public property, compromised infrastructure and closed multiple highways and river crossings. In the wake of these floods, potential federal liability has become a hot button issue. Litigants, however, face major hurdles in the Federal Tort Claims Act and the Flood Control Act of 1928. Under the former, the federal government is exempt from liability for discretionary actions. Under the latter, the government cannot be sued for damages resulting from federally supported damage reduction projects or floodwaters. Only once these immunity bars are overcome might a court entertain claims of negligence or other malfeasance. While the laws’ immunity provisions are broad, they can be overcome and will likely be tested in the coming months.