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
 
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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 2012affecting 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, NATL
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, NATL 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 citizenspatrolling 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].

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