Brainstorming Solutions to Rainstorms: State Liability for Construction in Flood Zones

• Author: Derbigny Willis
• Position: J.D./D.C.L., 2018. Paul M. Hebert Law Center, Louisiana State University.
• Pages: 1341-1379

Brainstorming Solutions to Rainstorms: State

Liability for Construction in Flood Zones

TABLE OF CONTENTS

Introduction ................................................................................ 1342

I. Background ................................................................................ 1344

A. The Louisiana August 2016 Flood Explained ..................... 1345

B. The National Flood Insurance Program ............................... 1347

1. Mapping ........................................................................ 1349

2. Insurance ....................................................................... 1353

3. Regulations .................................................................... 1354

a. East Baton Rouge Parish as a Participating

Community ............................................................. 1356

b. Litigation Against the State of Louisiana ............... 1358

II. The Consequences of Complacency with Inaction .................... 1360

A. Reasons to Exceed NFIP Requirements .............................. 1360

B. A Completed Flood Mitigation Project Could Have

Prevented August 2016 Flood Damage ............................... 1366

C. Public Misconceptions of Flood Risk .................................. 1369

III. Spectrum of Solutions ................................................................ 1372

A. Local Independent Duty to Exceed NFIP Minimum

Requirements ....................................................................... 1373

B. Proposed Legislation ........................................................... 1374

C. Federal Funding to Complete Flood Mitigation

Projects ................................................................................ 1375

Conclusion .................................................................................. 1376

Appendix A ................................................................................ 1377

Appendix B ................................................................................ 1378

Appendix C ................................................................................ 1379

1342 LOUISIANA LAW REVIEW [Vol. 78

INTRODUCTION

In the middle of the night, a homeowner’s neighbors knocked on her

door, announcing that floodwater was lapping at her porch. By the time

she corralled her children and pets, the quickly rising water rushed into her

home. There was no time to collect or mourn her belongings as she ushered

her frightened children and pets into the neighbors’ motorboat, travelled to

dry land, found shelter, and contacted her family and friends to confirm their

safety. As chaos unfolded around her, she spared no thought for the financial

issues that would soon plague her.

Now, as she stands in the wreckage of her living room in Baton Rouge,

observing the musty smell and texture saturating her entire house and all of

its contents, she realizes that she alone bears the cost of all that the flood

destroyed. Her mortgage did not require flood insurance, and her house had

never flooded before. If only she had understood the flood risk posed by the

elevation of her house, she would have bought flood insurance. Days pass

before family, friends, and volunteers can remove affected possessions and

drywall. The pile of ruined materials in her front lawn is so high it blocks

her view of the street. Her pile of debris is one of thousands lining southeast

Louisiana streets.1

The Louisiana August 2016 flood is the most damaging national flood

event since Superstorm Sandy in 2012—affecting nearly 190,000 occupied

houses and more than 6,000 businesses and 500,000 people.2 The historic

flood occurred because floodplain development blocked rainfall drainage of

the Amite and Comite Rivers into Lake Maurepas, causing backwater

Copyright 2018, by DERBIGNY WILLIS.

1. Baton Rouge Area Chamber (“BRAC”) estimated that in East Baton

Rouge Parish, more than 110,000 homes and 2,055 businesses are located in flood

areas with 32,857 housing units located within flood ed areas. In Livingston

Parish, BRAC estimates 48,827 housing units are located in flooded areas.

BRAC’s Preliminary Analysis of Potential Magnitude of Flooding’s Impact on the

Baton Rouge Region, BATON ROUGE AREA CHAMBER, http://src.bna.com/hVO

(last visited Feb. 15, 2018) [https://perma.cc/Q98P-3SBL].

2. Billion- Dollar Weather & Cl imate Disaster s: Table of Events, NAT’L

OCEANIC & ATMOSPHERIC ADMIN., https://www.ncdc.noaa.gov/billions/events (last

visited Feb. 15, 2018) [https://perma.cc/NNV5-DEHE]; see also Drew Broach, How

Many Houses, People Flooded in Louisiana?, TIMES-PICAYUNE (Aug. 22, 2016),

http://www.nola.com/weather/index.ssf/2016/08/how_many_people_houses_were

_fl.html [https://perma.cc/7J8H-N4DH]; see also Residential, Commercial Damage

from August Louisiana Flood Estimated at $8.7B, INS. J. W. MAG. (Sept. 19, 2016),

http://w ww.insurancejour nal.com/magazi nes/features/201 6/09/19/426341. htm

(stating the flood affected “more than 6,000 businesses in 22 affected parishes”)

[https://perma.cc/V749-BUJ7].

2018] COMMENT 1343

flooding3 into residential and commercial areas in Louisiana.4 The mayor of

Walker, Louisiana brought suit against the State of Louisiana and the

Department of Transportation and Development, alleging that the recent

expansion of Interstate 12 caused the flooding by blocking drainage.5

Responses to the flood reveal strengths and shortcomings of Louisiana

communities. For instance, Louisiana residents’ immediate responses to the

flood, such as the aid of the Cajun Navy6 and private shelters like Celtic

Studios,7 exemplify the resilient morale of Louisiana communities; the

lawsuit against the State of Louisiana and the publicly held misconceptions

3. Backwater flooding is, in “hydrologic terms, upstream flooding caused by

downstream conditions such as channel restriction and/or high flow in a

downstream confluence stream.” Nat’l Weather Service, Glossary: Backwater

flooding, NAT’L OCEANIC & ATMOSPHERIC ADMIN., http://forecast.weather.gov

/glossary.php?word=backwater%20flooding (last visited Feb. 15, 2018) [https://per

ma.cc/38ZL-YP4U].

4. P rofessor Ed Richar ds: Louisiana Floods, THE LEGAL EASE (Sept. 14,

2016, 38:49), http://lawreview.law.lsu.edu/podcast/ (discussing how floodplain

development generally affects floodwater drainage) [https://perma.cc/XZ6U-

8RNX]. See Broach, supra note 2 (stating the flood affected “as many as 188,729

occupied houses and 507,495 people”).

5. Terry Jones, Walker Mayor Says DOTD, Bar rier Wall Responsible for

Town’s Flooding, Threatens Lawsuit, ADVOCATE (Aug. 25, 2016), http://www.the

advocate.com/louisiana_flood_2016/article_59c52500-6a28-11e6-af6e-877659a40

ce5.html [https://perma.cc/5AHS-ALCE] (discussing a threatened lawsuit); see also

Noell W. Evans, City of Walker, Others Sue the State of Louisiana over Flooding

Destruction, LA. RECORD (Jan. 19, 2017), http://louisianarecord.com/stories/511

074319-city-of-walker-others-sue-the-state-of-louisiana-over-flooding-destruction

[https://perma.cc/7ZNW-4ZNX] (discussing details of the litigation).

6. “Cajun Navy” refers to volunteers—typically Louisiana citizens—patrolling in

jon boats, motorboats, and canoes rescuing Louisiana flood victims. Steve Visser,

Amanda Jackson, Holly Yan & Rosa Flores, Louisiana Flooding: ‘Cajun Navy’

Answers Call for Volunteers, CNN (Aug. 18, 2016, 10:20 AM), http://www.cnn

.com/2016/08/16/us/louisiana-flooding/ [https://perma.cc/C6C7-ZPSL].

7. Celtic Studios has been used for filming productions such as 20th Century

Fox’s Fantastic Four superhero film and Summit’s The Twilight Saga installments of

Breaking Dawn – Part 1 and Breaking Dawn – Part 2. Celtic Studios’s 150,000 square

feet of stage space “was crammed to capacity by midnight [on August 14, 2016]. . . .

The Celtic Media Centre has become the epicenter for re-joining family members and

getting help to the victims of the flooding.” Anita Busch, Baton Rouge’s Premier

Production Facility Becomes Haven for Louisiana Flood Victims, CELTIC STUDIOS

(Aug. 15, 2016), http://www.celticmediacentre.com/hot_topics/news/baton_rouges

_premier_production_facility_becomes_haven_for_louisiana_flood [https://perma.cc

/TGD5-4UHX].