Fear Of Future Flooding Can't Support A Physical Takings Claim

Tuesday, November 13, 2018 2:24 am
November 2018 - Volume 46 Number 11

The government’s plan to take flowage easements in a flood control basin in anticipation of future floods was not enough to support a takings claim because the dam had not yet flooded and thus no physical invasion had occurred.

Facts: The U.S. Army Corps of Engineers (Corps) built the Prado Dam on the Santa Ana River near Corona, California, in 1941. When the Corps built the dam, it acquired flowage easements over properties in the flood control basin, up to an elevation of 556 feet above sea level. Plaintiffs Stueve Bros. Farms, LLC and Millcreek Farming Associates, LLC bought land in the Prado Dam’s flood control basin that was subject to one of those flowage easements. In the 1970s, the Corps planned to enlarge the dam’s reservoir capacity, which would increase the maximum height of potential floods by ten feet in elevation.

During the 1990s and 2000s, local government agencies began[..]