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 flooded 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 & Climate Disasters: 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://www.insurancejournal.com/magazines/features/2016/09/19/426341.htm (stating the flood affected “more than 6,000 businesses in 22 affected parishes”) [https://perma.cc/V749-BUJ7]. 2018] COMMENT 1343 flooding 3 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 Navy 6 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. Professor Ed Richards: 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, Barrier 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]. 1344 LOUISIANA LAW REVIEW [Vol. 78 about flood risk highlight long-term development issues in Louisiana flood zones that short-term responses cannot cure. To resolve these issues, Louisiana local 8 governments must adopt mechanisms to protect properties from flood risk and encourage homeowners to become more resilient against flood risk by purchasing flood insurance. This Comment seeks to eradicate public misconceptions regarding flood risk by clarifying flood terminology critical to understanding current legal and policy issues. Part I explains state and federal roles in flood mapping, flood insurance, and regulations in flood zones, 9 examines the East Baton Rouge Parish Metropolitan Council’s amended building code in response to the August 2016 flood, and discusses current litigation against the State of Louisiana alleging that construction exacerbated August 2016 flood damages. 10 Part II analyzes issues that expose properties to flood risk, including local governments’ failure to exceed federal regulations for floodplain management, incomplete flood mitigation projects, and public misconceptions about flood risk. Part III proposes solutions via local, state, and congressional action, ultimately advocating that Louisiana residents in any flood zone purchase flood insurance, irrespective of flood zone categorizations. I. BACKGROUND In the aftermath of recovery from the August 2016 flooding, homeowners and politicians are uncertain as to which unit of government is 8. The term “local” includes, but is not limited to, county, municipality, city, or town. 42 U.S.C. § 5122(8) (2018). 9. STATE OF LA., DEP’T OF TRANSP. & DEV. & OFFICE OF PUB. WORKS & INTERMODAL TRANSP., LA. FLOODPLAIN MGMT. DESK REFERENCE 4–9 (La. Bond Assocs. eds., 2008)...