Federal Liability for Flood Damage Related to Army Corps of Engineers Projects [Updated September 4, 2008] [open pdf - 136KB]
"This report examines selected issues of the federal government's liability depending on the mechanism of the levee failures, and analyzes legal defenses available to the federal government. The report uses flood damage related to Hurricane Katrina as an illustration of these legal issues regarding federal liability, but these principles in the analysis generally would apply to flood damage resulting from similar projects. […] The most costly natural disaster ever to hit the United States was Hurricane Katrina. It struck land on August 29, 2005, as a Category 3 hurricane. The damage to New Orleans from the hurricane was largely not the result of wind, but water -- with 80% of New Orleans under water. In June 2008, continuous heavy precipitation caused severe flooding in seven midwestern states after numerous levees along the Mississippi River were breached. In the wake of these major flood events and levee breaches, the issue of federal liability for flood damage is getting attention in the media and in Congress. After Katrina, lawsuits were filed against the federal government claiming that the levees and floodwalls designed and constructed by the U.S. Army Corps of Engineers (Corps) failed to protect the city. To succeed in these lawsuits, the litigants first must show that the federal government is not immune from suit. One source of government immunity is the federal government's exemption under the Federal Tort Claims Act for actions that constitute a discretionary function. A second source of immunity for the government is the Flood Control Act of 1928, which prevents the government from being sued for damages resulting from federally supported damage reduction projects or flood waters. Only after those two issues are resolved would the federal government's negligence be reviewed."
CRS Report for Congress, RL34131