Document Type

Article

Publication Date

Fall 2007

First Page

1471

Volume

60

Issue

4

Source Publication Abbreviation

S.M.U. L. Rev.

Abstract

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a "manmade" disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This Article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams, the perverse incentives created by the national flood insurance program, and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers. Setting forth what we call the theory of "double takes, " this Article argues that property owners in flood-prone areas "take" taxpayer dollars through two sometimes overlapping mechanisms. First, a package of subsidies-including flood control structures, federal flood insurance, and after-the-fact disaster relief-enables and even encourages construction in high-risk areas. As a consequence, many floodplain residents are lured into harm's way. Second, landowners denied permits to develop floodplain and coastal property can "take" federal or state dollars in the form of compensation awarded under the Fifth Amendment. At times, the same landowner-or even the same parcel of land-may benefit simultaneously from both mechanisms, as in the case of large-scale developers enjoying subsidized levee protection for portions of the land and receiving Fifth Amendment compensation for other portions where development is precluded. Such claims for compensation are fostered by the 1992 decision in Lucas v. South Carolina Coastal Council in which the Supreme Court endorsed the view that coastal areas are "valueless" in their natural state-a dangerous misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.

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