Order Code RL34131
Federal Liability for Flood Damage
Related to Army Corps of Engineers Projects
Updated July 11, 2008
Cynthia Brougher
Legislative Attorney
American Law Division

Federal Liability for Flood Damage
Related to Army Corps of Engineers Projects
Summary
The most costly natural disaster ever to hit the United States was Hurricane
Katrina. It struck land on August 29, 2005, as a Category 3 hurricane. The damage
to New Orleans from the hurricane was largely not the result of wind, but water.
Within three days, 80% of New Orleans was under water. In June 2008, continuous
heavy precipitation caused severe flooding in seven midwestern states after numerous
levees along the Mississippi River were breached. In the wake of these major flood
events and levee breaches, the issue of federal flood control projects and liability is
getting new attention in the media and in Congress.
After Katrina, lawsuits were filed against the federal government claiming that
the levees and floodwalls designed, constructed, and maintained by the U.S. Army
Corps of Engineers failed to protect the city. To succeed in these lawsuits, the
litigants first must show that the federal government is not immune from suit. One
source of government immunity is the federal government’s exemption under the
Federal Tort Claims Act for actions that constitute a discretionary function. A
second source of immunity for the government is the Flood Control Act of 1928,
which prevents the government from being sued for damages resulting from flood
control projects or flood waters. Only after those two issues are resolved will the
federal government’s negligence be reviewed.
This report examines selected issues of the federal government’s liability
depending on the theory of the levee failures, and analyzes legal defenses available
to the federal government. The report uses flood damage related to Hurricane Katrina
as an illustration of these legal issues regarding federal liability, but the general
principles in the analysis would apply to flood damage resulting from any such flood
control project.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Levee Failure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Theories of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Federal Tort Claims Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Discretionary Function Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Discretionary Function Exception as Applied to
Corps of Engineer Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Flood Control Act of 1928 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Federal Tort Claims Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Flood Control Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Federal Liability for Flood Damage Related
to Army Corps of Engineers Projects
Introduction
In June 2008, continuous heavy precipitation resulted in severe flooding of the
Midwest. Portions of Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri and
Wisconsin flooded after water from the Mississippi River breached at least 35
levees.1 The flood was the second worst that the Midwest has experienced in 15
years.2 This flooding brought renewed attention to liability after major flood events,
including the liability for damage caused by Hurricane Katrina in 2005.
Hurricane Katrina struck the Gulf Coast on August 29, 2005, as a Category 3
hurricane, bringing with it rain, high-velocity winds, and a large storm surge, and
leaving behind a massive path of destruction.3 Much of the extensive damage that
occurred was the result of the storm surge that breached levees and floodwalls
protecting New Orleans. By August 31, 2005, 80% of New Orleans was under
water.4 The city was not declared free of floodwaters until October 11, 2005.5 Some
flooding was expected in New Orleans, primarily because the city sits below sea level
and lacks natural drainage, but the extent of inundation was not anticipated. The
1 News Release, U.S. Army Corps of Engineers, Upper Mississippi River Flooding Update
(June 25, 2008) (on file with author).
2 The major flooding in the Midwest is reported to be in the range of a 400-year to 500-year
flood; however, most levee protection is built to withstand a 100-year flood. These flood-
year designations, however, do not indicate how often an area may flood. Rather, they are
based on the chance that an area may flood in any given year. For example, the term 100-
year flood
is the flood elevation that has a 1% chance of being equaled or exceeded
annually. It is not the flood that will occur once every 100 years. Likewise, a 500-year
flood is five times less likely to occur in any given year than a 100-year flood (0.2% chance
of flooding).
3 Richard D. Knabb et al., Tropical Cyclone Report: Hurricane Katrina. National Hurricane
Center (December 20, 2005), as updated (August 10, 2006), online at [http://www.nhc.noaa.
gov/pdf/TCR-AL122005_Katrina.pdf]. The estimated height of the storm surges that hit
New Orleans ranges between 5 and 19 feet. Even larger storm surges hit Mississippi.
Hurricanes are categorized between 1 and 5, according to the Saffir-Simpson Hurricane
Scale, with a Category 3 hurricane having winds of 110-130 mph, and storm surge of 9-12
feet above normal. See National Oceanic and Atmospheric Administration (NOAA) website
at [http://www.nhc.noaa.gov/aboutsshs.shtml].
4 See National Climatic Data Center, [http://lwf.ncdc.noaa.gov/oa/climate/research/2005/
katrina.html].
5 Richard Knabb et al., Tropical Cyclone Report: Hurricane Katrina. National Hurricane
Center, p. 9 (December 20, 2005).

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protective structures that were breached were part of the federally authorized Lake
Pontchartrain and Vicinity Project, constructed by the U.S. Army Corps of Engineers
and maintained by local levee districts.
A fundamental question in litigating damages caused by the breaches is whether
the breaches occurred because the storms overwhelmed a flood protection system
with a force that it was not designed to contain, or whether faulty design,
construction, and maintenance caused the system to fail. Studies indicate that both
theories may have played a part in the failures after Katrina. According to a National
Hurricane Center (NHC) report, most of the breaches were due to overtopping, where
the water was higher than the protective structures, but some breaches at significant
floodwalls occurred before the water reached the top, meaning the floodwalls failed.6
Trillions of dollars in liability claims reportedly have been filed against the
United States for damages from Hurricane Katrina.7 More lawsuits may follow after
the Midwest flooding subsides. The federal government’s exposure is thus potentially
significant, but defenses, including absolute immunity, may be available. This report
analyzes potential federal liability for flood damage specifically relating to Hurricane
Katrina and generally relating to U.S. Army Corps of Engineers projects.
Flood control has garnered significant attention across the country and in
Congress in recent years. In addition to Hurricane Katrina and the Midwest floods,
flooding in Nevada stranded thousands of people in January 2008.8 Congress
provided for a National Levee Safety Program in the Water Resources Development
Act of 2007 (WRDA).9 Bills relating to levee inspection have been introduced in
both the House and Senate.10 The Senate Subcommittee on Water and Power held
a hearing in July 2008 regarding bills relating to improving water infrastructure.11
6 Id.
7 Brad Heath, Katrina Victims Swamp Corps for Trillions in Claims, USA TODAY, January
7, 2008, at 1A. According to the article, more than 489,000 claims have been filed against
the Corps, including 247 claims that seek $1 billion or more.
8 See Martin Griffith, Levee Breaks in Nevada, 3,500 Stranded, ASSOCIATED PRESS ONLINE,
January 5, 2008. The Nevada flooding was caused by a breach in a levee owned by the U.S.
Bureau of Reclamation.
9 See Water Resources Development Act of 2007, P.L. 110-114, title IX, National Levee
Safety Program.
10 See National Levee Safety Program Act of 2007, H.R. 1587; Aging Water Infrastructure
and Maintenance Act, S. 2842.
11 Hearing to Receive Testimony on Pending Legislation, Subcomm. on Water and Power
of the S. Comm. on Energy and Natural Resources, July 8, 2008.

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Background
The legal defenses available to the federal government are closely linked to the
facts behind the flooding. Therefore, some factual background is related here before
discussing the legal issues.
New Orleans is a city below sea-level, virtually surrounded by water, with Lake
Pontchartrain to its north and the Mississippi River to the south. Not far to the east
is the Gulf of Mexico. The city faces flooding risks from the Mississippi River,
coastal storms, and heavy precipitation. A system of levees and floodwalls was
designed to protect the city from these threats. Levees are typically broad, earthen
structures; floodwalls are made of concrete or steel, built atop a levee or in place of
a levee. This infrastructure around New Orleans represents a combination of federal
and local investments and responsibilities, and is referred to in this report as the
Hurricane Protection System. Like most of the nation’s flood and storm damage
reduction infrastructure, the levees and floodwalls in New Orleans were built
primarily by the federal government but are maintained by local governments and
local levee districts once they are completed. Some portions of the Lake
Pontchartrain and Vicinity Hurricane Protection Project,12 the project most relevant
to the Katrina failures, were under construction when Katrina struck. Consequently,
while some portions of the system were managed by the levee districts, other portions
were still under the jurisdiction of the U.S. Army Corps of Engineers (Corps), the
principal federal agency responsible for constructing flood, storm, and shore
protection infrastructure.13
The landscape of the Mississippi Delta has changed significantly since the 1965
Lake Pontchartrain act. According to one report, an average of 42 square miles per
year of coastal wetlands was lost during the 1960s, a rate that has slowed only
recently to between 25 and 35 square miles per year.14 This is meaningful because
marshlands slow storm surges. A study by the Louisiana Department of Natural
Resources found that in 1992, Hurricane Andrew’s 9.3-foot surge height dropped 3.1
inches for every mile of marsh-and-water landscape it crossed, dropping to 3.3 feet.15
According to The Times-Picayune, the Corps was planning an “array of
hurricane-protection projects” in 2002, including a 72-mile levee, the Morganza-to-
the-Gulf of Mexico levee.16 Such projects might indicate a decision by the Corps to
12 P.L. 89-298, § 204, 79 Stat. 1073, 1077 (1965) (hereinafter referred to as the Lake
Pontchartrain act).
13 For more on the Corps’ water resources activities, see CRS Report RS20866, The Civil
Works Program of the Army Corps of Engineers: A Primer
, by Nicole T. Carter and Betsy
A. Cody.
14 John McQuaid and Mark Schleifstein, “In Harm’s Way,” The Times-Picayune (2002).
15 Id. Hurricane Andrew was a Category 3 hurricane by the time it reached Louisiana,
having been a Category 5 storm when it struck Florida earlier.
16 Id.

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design a new system rather than improve the existing one, and could affect the Corps’
liability.17
Levee Failure
According to the Corps, the enormous amount of flooding that devastated the
city of New Orleans following Hurricane Katrina was predominantly the result of
structure failure, allowing waters from Lake Pontchartrain, Lake Borgne, and other
stormwaters to flow into the low-lying city. Although the protection system was
designed to withstand a Category 3 hurricane,18 and Hurricane Katrina was a
Category 3 storm at the time of landfall, the storm surges were higher than normal
for such a storm.19 In addition, Katrina dumped more than five inches of rainfall in
eight hours. With respect to the failure of the Hurricane Protection System in New
Orleans, two central questions have emerged: (1) were the levees and floodwalls
breached because their design was exceeded, or (2) did they fail due to faulty design,
construction, or maintenance, before ever reaching design capacity?
The protection system failed in approximately 50 locations and for a variety of
reasons. The vast majority of those failures occurred because of “overtopping,”
where the waters that exceeded design capacity went over the floodwalls. Although
most failed in this manner, evidence gathered by a panel of experts commissioned by
the Corps suggests that at least four levees/floodwalls were breached before they
exceeded their design capacity.20
Following Katrina, the Corps prepared an extensive report via a multiparty task
force known as the Interagency Performance Evaluation Task Force (IPET). The
IPET report did not point to one failure, but to a system of failures, noting that a
flood protection system by its nature is a series: if one part fails, it increases the
impacts on the others.21 IPET found “differences in the quality of materials used in
17 Likewise, reports following the Midwest flooding in 2008 alleged that “the government
ignored an expert panel’s advice after 1993’s devastating Missisippi River floods” and that
“federal inaction may have exacerbated the current flood’s destructive power.” Daniel
Cusick, Army Corps: As Waters Recede, Questions About Flood Control Arise, Greenwire
(June 24, 2008).
18 The Lake Pontchartrain act required the system to withstand a “standard” storm, which
is roughly equivalent to what is now called a Category 3 storm.
19 The height of storm surges for Hurricane Katrina reportedly ranged between 5 and 19 feet,
whereas storm surges for Category 3 hurricanes generally ranges between 9 and 12 feet. See
Richard Knabb, et al., Tropical Cyclone Report: Hurricane Katrina, National Hurricane
Center, supra note 3.
20 For an extensive study of levee failure, see Interagency Performance Evaluation Task
Force (IPET), Draft Final Investigation of the Performance of the New Orleans Flood
Protection Systems in Hurricane Katrina on August 29, 2005
(Washington, DC: May 22,
2006).
21 Performance Evaluation of the New Orleans and Southeast Louisiana Hurricane
(continued...)

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levees, differences in the conservativeness of floodwall designs, and variations in
structure protective elevations due to subsidence and construction below the design
intent due to error in interpretation of datums” all contributed to inconsistent
protection within the system. The IPET report states that the 17th Street and London
Avenue levees experienced foundation failures prior to water levels reaching the
design levels of protection. The storm surges in the Inner Harbor Navigation Canal
(IHNC) exceeded design levels, but IPET also found that the walls had subsided by
over 2 feet, contributing to the amount of overtopping that occurred.
Another theory of causation is that the levees were overtopped or breached
because the storm surge was enhanced by the Mississippi River Gulf Outlet
(MRGO). MRGO (also known as Mr. Go) is a 76-mile navigational channel between
the Port of New Orleans and the Gulf of Mexico. It is designed as a shortcut for
ships.22 Studies have reviewed whether MRGO became a hurricane highway, or a
funnel, acting as an accelerator in moving water from the Gulf into the IHNC. IPET
found that MRGO did not accelerate the movement of the water. However, it did
find that a portion of MRGO allowed the Lake Borgne waters to be pushed into the
interior of New Orleans. IPET found that this connection amplified the surge level
and velocity through the interior of the city and to have raised the level of Lake
Pontchartrain.23 In turn, that increased the pressure on the levees throughout the area,
according to IPET.
Theories of Liability
Hundreds of lawsuits related to Hurricane Katrina have been filed, many against
insurers, some against the city and its officials, and some against the federal
government. The lawsuits against the federal government and some contractors have
been consolidated under the heading In re Katrina Canal Breaches Consolidated
Litigation
, in the federal District Court for the Eastern District of Louisiana.24
Any suit against the federal government, including the Corps, must overcome
the doctrine of sovereign immunity. Simply put, sovereign immunity means that the
government cannot be sued. This basic concept has been modified over the years to
hold that the federal government cannot be sued unless Congress specifically
provides for such a suit.25 Although the government can be sued under such
21 (...continued)
Protection System: Draft Final Report of the Interagency Performance Evaluation Task
Force
(June 1, 2006).
22 P.L. 84-155, 70 Stat. 65 (1956).
23 See CRS Report RL33597, Mississippi River Gulf Outlet (MRGO): Issues for Congress,
by Nicole T. Carter and Charles V. Stern.
24 Nos. 05-4182, 05-5237, 05-6314, 05-4181, 05-6073, 06-2545, 05-4191, 06-2268 (E.D.
La.).
25 See, e.g., Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940) (“the United
States cannot be sued without its consent”); Rothe Development Corp. v. United States, 194
(continued...)

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circumstances, it is up to the plaintiff to demonstrate that it has the right to sue; the
burden is not on the government to show it is immune from suit. One such vehicle
for suit is the Federal Tort Claims Act.26 Another is the Flood Control Act of 1928.27
The Federal Tort Claims Act
The Federal Tort Claims Act (FTCA) waives the federal government’s
sovereign immunity if a tortious act of a federal employee causes damage. (A tort,
generally speaking, is a harmful act, other than breach of contract, for which relief
may be sought in civil court.) Specifically, the FTCA creates liability for the
following:
injury or loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the government while acting within
the scope of his office or employment, under circumstances where the United
States, if a private person would be liable to the claimant in accordance with the
law of the place where the act of omission occurred.28
Negligence. To win a negligence claim under the FTCA, as elsewhere, a
plaintiff must demonstrate four things: (1) that the defendant owed a duty to the
plaintiff, (2) that the duty was breached by the defendant, (3) that the breach was the
cause of the plaintiff’s injury, and (4) that the plaintiff was actually injured. All of
these elements must be shown in order to have a valid claim.
Discretionary Function Exception. The FTCA contains a number of
exceptions under which the United States may not be held liable even if negligent,
notably, the discretionary function exception. The discretionary function exception
prevents the government from being sued for
any claim ... based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a federal agency or an
employee of the government, whether or not the discretion involved be abused.29
In determining whether a government action is discretionary, courts look at
whether the course of action was mandatory, or whether there was a choice. A claim
related to the performance (or non-performance) of a mandatory function, one
required by statute, would be actionable under the FTCA. However, a claim related
to an action that requires decision making on the part of the government is likely to
be found discretionary and exempt from suit. The theory behind this is, if Congress
requires a certain action and the government unit fails to comply with that specific
directive, the government should not be protected for failing to do what Congress
25 (...continued)
F.3d 622, 624 (5th Cir. 1999).
26 28 U.S.C. §§ 1346, 2671-2680.
27 28 U.S.C. §§ 702a et seq.
28 28 U.S.C. § 1346(b).
29 28 U.S.C. § 2680(a).

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expressly required. The difficulty lies in determining which part of the government
action was specifically required by Congress, and which part involved discretion. In
this case, for example, we know that Congress specifically required construction of
the New Orleans Hurricane Protection System to protect against hurricanes.
However, as caselaw illustrates, that does not mean that construction of the system
was a purely non-discretionary action.
The Supreme Court has acted to clarify the use of the discretionary function
exception. In Dalehite v. United States, the Court described discretion as being
“more than the initiation of programs and activities. It also includes determinations
made by executives or administrators in establishing plans, specifications or
schedules of operations. Where there is room for policy judgment and decision there
is discretion.”30
In United States v. Gaubert, the Court suggested a two-part test for applying the
discretionary function exception: (1) the challenged conduct must involve an element
of judgment or choice and (2) the judgment or choice must be based on
considerations of public policy.31
The Discretionary Function Exception as
Applied to Corps of Engineer Projects

The discretionary function exception has typically been interpreted broadly.
Generally, the discretionary function exception has prevented claims against the
United States for water damage to real property as a result of negligent design or
construction of flood control or irrigation projects. In Vaizburd v. United States,
plaintiffs alleged that a Corps project to reduce storm damage and protect the
shoreline damaged their property because of negligent design and implementation.32
The court used the Gaubert two-part test to find that the Corps exercised discretion
in the design, planning, and implementation of the project. The Corps chose from
several different project plan designs and factored in a number of policy
considerations, including cost, reliability, resource allocation, environmental
protection, and political implications. The court also found that even though the
project was required by statute, the actual implementation of the project was not
precisely dictated by any plan, regulation, or statute, and thus, the Corps had a degree
30 Dalehite v. United States, 346 U.S. 15, 35-6 (1953).
31 United States v. Gaubert, 499 U.S. 315, 322-23 (1991), refining the test developed in
Berkovitz v. United States, 486 U.S. 531 (1988). The Gaubert Court stated:
[I]f a regulation mandates particular conduct, and the employee obeys the
direction, the Government will be protected because the action will be deemed
in furtherance of the policies which led to the promulgation of the regulation. If
the employee violates the mandatory regulation, there will be no shelter from
liability because there is no room for choice and the action will be contrary to
policy. On the other hand, if a regulation allows the employee discretion, the
very existence of the regulation creates a strong presumption that a discretionary
act authorized by the regulation involves consideration of the same policies
which led to the promulgation of the regulations. (internal citations omitted)
32 Vaizburd v. United States, 90 F. Supp. 2d 210, 214-15 (E.D.N.Y. 2000).

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of choice in how to implement the project.33 Accordingly, even if there has been
negligent design or implementation, the presence of choice and judgment may allow
the discretionary function exception to preclude any claim against the United States.
A discretionary function can also be exercised when choosing the materials of
a required project. In United States v. Ure, the plaintiff argued the government was
negligent in constructing an irrigation canal that burst and flooded the plaintiff’s
property. The canal had not been constructed with a stronger (and more expensive)
material available for reinforcement, which the plaintiff claimed to be a breach of the
government’s duty to ensure against breaks. Ultimately, the court found that the
government made a cost-based decision not to use stronger material. That the
decision was based on cost was enough to invoke the discretionary function
exception and overcome any negligence claim.34
Similarly, when the government creates infrastructure to withstand a certain
level of storm, despite knowing that more powerful storms are possible, courts have
held that the discretionary function exception applies. In Valley Cattle Co. v. United
States
, the plaintiff contended that the government was negligent and liable for
damages because of flood preparations that could handle only a “two-year storm”
despite having the knowledge that storms of much stronger intensity hit the area. The
court found that the government clearly made decisions at the planning level to
prepare only for a two-year storm based on policy factors, and was immune from
liability because of the discretionary function exception.35
Even deciding to delay improving a project can excuse liability as a
discretionary action. In National Union Fire Insurance v. United States, the court
held the Corps’ decision to delay a smaller improvement to a breakwater that
protected a harbor while planning for a larger improvement was a choice immune
from liability. The plaintiff asserted the Corps was negligent for not discovering the
existing structure had subsided, and for not acting quickly to improve the deficiency.
The Corps in fact was aware of the problems with the breakwater protection several
years before the damage to plaintiff’s property actually occurred. However, the court
held that the FTCA’s discretionary function exception applied because the Corps
chose to put off the smaller improvement to the breakwater while studying the
feasibility of a larger improvement. The decision of timing with respect to
improvements invoked the exception.36 The court also decided that considering the
cost of greater safety is a discretionary function.
33 Id.
34 See U.S. v. Ure, 225 F.2d 709, 712-13 (9th Cir. 1955).
35 Valley Cattle Co. v. United States, 258 F. Supp. 12, 19-20 (D. Haw. 1966) (finding that
the FTCA allowed claims for only one of the two floods at issue).
36 See National Union Fire Ins. v. United States, 115 F.3d 1415 (9th Cir. 1997). The Corps
had to make the decision as to improvements weighing a wide variety of factors, including
(1) how much commerce benefits from the project; (2) what kind of commerce benefits from
the project; (3) how much the project will cost; (4) how necessary the work is; and (5)
whether the work should be built, continued, or maintained by the federal government or
some other entity.

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At times discretion has been construed more narrowly in a construction context,
despite the prevailing practice of broad interpretation. In Seaboard Coast Line
Railroad Company v. United States,
the Court of Appeals for the Fifth Circuit found
the government liable for damages caused by a drainage system. The government
claimed that the discretionary function exception applied, arguing it was a policy
decision to create the drainage system in the first place. The court found that the
decision to build a drainage system was discretionary but the construction was not.
The construction of the ditch had to be performed in a non-negligent manner.37
However, this decision was made before the U.S. Supreme Court decision in United
States v. Varig
and thus, according to the 11th Circuit, may no longer be a good
evaluation.38 Under the Varig analysis, an agency’s execution of a decided-upon
action is also a discretionary action.39
Under some circumstances, maintenance has been found not to be a
discretionary action. In E. Ritter & Co. v. U.S. Army Corps of Engineers, the court
found the government liable for a failure to maintain a flood control project. The
court noted that it was the Corps’ decision not to maintain the banks of the project.
However, the fact that a decision was made did not mean the discretionary function
exception automatically applied. The court relied on the second prong of the
Gaubert test, that only governmental decisions based on considerations of public
policy
are protected by the exception. The court found the discretionary function
exception did not apply because operating the project incorrectly was not part of the
Corps’ mandated policy to prevent flooding.40 A similar result was found in a case
where a court decided that the failure not to maintain a road in a National Park was
not “a decision grounded in social, economic, or political policies.”41 Therefore, the
discretionary exemption did not apply.
A contrary result was found in a second case based on the failure of the National
Park Service (NPS) to maintain a road. In that case, the court looked at whether a
decision had been made not to maintain. It considered that the NPS had developed
a maintenance task list, and that maintaining that particular road was to occur
following other projects.42 That scheduling determination was discretionary,
according to the court. Agencies are allowed to establish priorities “by balancing the
objectives sought to be obtained against such practical considerations as staffing and
37 473 F.2d 714 (5th Cir. 1973). The Corps was not a party to the case. See also Kennewick
Irr. Dist. v. United States, 880 F.2d 1018 (9th Cir. 1989) (specific safety standards for
construction meant discretionary function exception did not apply).
38 Alabama Elec. Co-op., Inc. v. United States, 769 F.2d 1523, n. 5 (11th Cir. 1985)
39 United States v. Varig, 467 U.S. 797 (1984) (holding that the Federal Aviation
Administration had immunity from failing to find a problem with an aircraft during its
spot-checking, because that inspection process was discretionary).
40 874 F.2d 1236 (8th Cir. 1989).
41 ARA Leisure Services v. United States, 831 F.2d 193 (9th Cir. 1987).
42 Cope v. United States, 45 F.3d 445 (D.C. Cir. 1995).

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funding.”43 In a third case, the NPS’s trail maintenance was held to be a discretionary
action. In that case, the court reviewed the policy-prong of the Gaubert test to find
that agencies are allowed to balance public policy against “the constraints of
resources available to them.”44
Flood Control Act of 1928
Even if litigants are able to refute the discretionary function exception and sue
the government under the FTCA, the Flood Control Act of 1928 (FCA) offers
additional immunity to the federal government. Section 702c of the FCA provides
that “no liability of any kind shall attach to or rest upon the United States from any
damage from or by floods or flood waters.”45 The overall breadth and scope of this
immunity from liability is the subject of considerable controversy and litigation.
Despite the Supreme Court’s comment that “it is difficult to imagine broader
language,”46 the case history of the FCA evidences a more nuanced application.
The FCA was enacted in response to a large flood that devastated the
Mississippi River Valley. Congress wanted to fund large flood control projects while
also limiting the government’s liability for those projects. One stated purpose during
floor debate was to provide safeguards that would protect the government against
lawsuits if the government provided flood protection to the people.47 The legislative
history illustrates that “Congress clearly sought to ensure beyond doubt that
sovereign immunity would protect the Government from ‘any’ liability associated
with flood control,” according to the Supreme Court.48
The Supreme Court applied Section 702c immunity broadly in the case of
United States v. James. The petitioners filed wrongful death claims against the
government after two recreational boaters drowned in the reservoirs of federal flood
control projects. The Court wrote that the language of Section 702c was
unambiguous and should be given its “plain meaning.”49 Damage under the act
included both personal and property damage.50 The terms flood or flood waters
applied to “all waters contained in or carried through a federal flood control project
for purposes of or related to flood control, as well as to waters that such projects
cannot control.”51 This holding was interpreted by most courts to mean if a public
43 Id. at 451, quoting from United States v. Varig, 467 U.S. at 820.
44 Childers v. United States, 40 F.3d 973 (9th Cir. 1994).
45 33 U.S.C. § 702c. Section 702c is sometimes referred as “Section 3 of the act,” based on
where it appears in the public law.
46 United States v. James, 478 U.S. 597, 604 (1986).
47 69 Cong.Rec. 6641 (1928) (remarks of Rep. Snell).
48 United States v. James, 478 U.S. at 608.
49 United States v. James, 478 U.S. 597 (1986).
50 Id. at 604-606.
51 Id. at 604.

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works project has flood control as one of its purposes, Section 702c immunity would
apply.
Following the James decision, the courts split as to what relationship a federal
project must have to flood control. All circuits agreed that federally funded public
works projects “wholly unrelated” to flood protection purposes are not entitled to
Section 702c immunity. The dissent among circuits arose in determining exactly
how connected the project must be to flood control in order to invoke Section 702c
immunity.
However, in 2001 the Supreme Court revisited its interpretation of the FCA.52
The Court held that the portion of the James decision that referred to flood control
projects was dicta and did not relate the specific wording of the statute, thereby
rendering the bulk of FCA litigation of little precedential value. The Court did not
focus on the character of the federal project or the purpose it served, but looked at the
waters that caused the damage and the purpose for their release. The unanimous
Court held that “in determining whether § 702c immunity attaches, courts should
consider the character of the waters that cause the relevant damage rather than the
relation between that damage and a flood control project.”53
Analysis
The FTCA and the FCA are compatible statutes, frequently appearing as
defenses within the same case. It has been affirmatively held by one circuit court that
the FTCA does not overrule or invalidate Section 702c of the Flood Control Act.54
Both the immunity provision under the FCA and the FTCA’s discretionary
function exception are jurisdictional, meaning that if they apply, the court has no
authority to hear the case. The typical process for reviewing a case brought under the
FCA and the FTCA is to see whether the immunity provisions or exceptions apply.
Then, if the case survives that review, the court would consider the application of the
facts to the underlying tort claim. However, the District Court for the Eastern
District of Louisiana has ruled that the facts necessary to show whether the Corps
exercised any discretion are inextricably intertwined with the factual questions that
will determine liability.55 Also, the court ruled that the facts necessary to show
whether flooding was linked to a flood control project were inseparably linked to the
determination of whether FCA immunity applied.56 The court decided it would be
judicially inefficient to consider the discretionary exception and Section 702c
immunity, and then have the jury consider the same facts to determine negligence.
52 Central Green Company v. United States, 531 U.S. 425 (2001).
53 Id. at 437.
54 National Manufacturing Co. v. United States, 210 F.2d 263 (8th Cir. 1954).
55 In re Katrina Canal Breaches Consolidated Litigation (Robinson), 471 F. Supp. 2d 684
(E.D. La. 2007).
56 Id.

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Accordingly, a jury will determine whether the Corps used its discretion and whether
MRGO caused damages from floodwaters.57 To give some context to this decision,
none of the other cases cited in this report used juries to decide these issues.
Federal Tort Claims Act
To invoke the discretionary function exception under the FTCA, the court would
apply the Gaubert test: (1) the challenged conduct must involve an element of
judgment or choice and (2) the judgment or choice must be based on considerations
of public policy.58 Hence, to be successful, a suit based on the FTCA would have to
show that policy decisions and government discretion did not play any part in
building the Hurricane Protection System. The resolution of these questions should
be independent of any decision regarding negligence or fault.
Under the Flood Control Act of 1965,59 Congress authorized and delegated
primary design and construction responsibility to the Corps. The construction of the
Hurricane Protection System was almost constantly ongoing up through the time
Hurricane Katrina hit the city.60 In those several decades, the Corps had to revise the
design and construction of the Hurricane Protection System for a number of reasons,
including cost, environmental factors, technical issues, the necessity of acquiring
additional lands, and aesthetic issues. Thus, the overall design and construction
required balancing many different policy factors, which aids the Corps in invoking
discretionary immunity.
As discussed, courts have found that design and construction of a project are
considered discretionary activities, and it appears likely that the various steps that
went into designing and building the Hurricane Protection System were all
discretionary actions under existing precedent. A possible complicating factor is that
the statute mandated the levees and floodwalls be constructed to withstand a standard
hurricane for the region, which was roughly equivalent to a Category 3 hurricane, the
rated strength of Katrina.61 The decision to design to that standard appears to be a
non-discretionary action.
A more difficult issue may be liability related to maintenance of the system. As
discussed earlier, the courts are inconsistent in finding whether maintenance requires
choice or is purely a non-discretionary action. Courts tend to lean away from finding
an exemption in cases where a maintenance decision appears to be contrary to public
policy and not supported by documentation showing public policy considerations
57 Id.
58 United States v. Gaubert, 499 U.S. 315 (1991).
59 P.L. 89-298, Title II.
60 See New Orleans Hurricane Protection Projects Data at [https://ipet.wes.army.mil/].
Construction was temporarily halted in December 1977 when a court decision enjoined the
Corps from continued building until an environmental impact study could be completed.
After the study was accepted, the Corps changed significant portions of the design in
response to environmental and cost concerns.
61 P.L. 89-298, § 204.

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behind the decision. In this case, if the Corps could show it lacked available money
to make the necessary repairs, and that its decision not to maintain the levees was
based on public policy concerns such as limited resources, the discretionary function
exception might be available. Also the Corps’ ongoing evaluation of a new
Hurricane Protection System could bolster the argument that the Corps was
considering public policy, if it were shown that the Corps chose to work on a new
system, rather than expend funds on an existing system.
It also is not clear who was responsible for maintenance of the levees and
floodwalls, because local levee districts managed them only after they were
completed, and not all were completed.
Plaintiffs would potentially be able to bypass discretionary immunity if they
demonstrated that the persons at the operational level were required to maintain the
system according to a prescribed protocol. For example, if inspections had to meet
specific guidelines, or if various assessments were strictly prescribed, there may be
little or no discretion involved.62 However, to be consistent with other caselaw, any
documented choice involving prioritization would likely be considered a
discretionary action, exempting the government from liability.
Bolstering a case for immunity is the July 2007 report released by the Corps
describing 50 years of decision making behind the Hurricane Protection System.63
The report’s stated purpose is to show “how Corps’ policies and organization,
legislation, and financial and other factors influenced the decisions” leading to the
New Orleans’ system. This report appears to relate directly to the discretionary
function exception, as it addresses not only decision making, but the policies behind
the decisions, thus satisfying the two prongs of Gaubert.64
Flood Control Act
Even if the government cannot invoke discretionary function immunity, a
plaintiff would have to overcome the broad Section 702c immunity of the Flood
Control Act. According to the district court in In re Katrina Canal Breaches, the
U.S. Supreme Court Central Green Company decision did not resolve what nexus
floodwaters must have to a flood control project to trigger immunity.65 Under this
theory, Section 702c immunity appears to apply only where the floodwaters are
62 Id. The “pre-Katrina” section has several examples of studies that were done prior to the
storm.
63 Douglas Woolley and Leonard Shabman, Draft Final Report: Decision-making
Chronology for the Lake Pontchartrain & Vicinity Hurricane Protection Project (June 2007),
available at [http://www.iwr.usace.army.mil/inside/products/pub/hpdc/hpdc.cfm].
64 The report addresses three main issues: selection of the overall protection approach;
treatment of new information, including surge modeling and land subsidence; and the design
of I-wall parallel protection structures. It also considers the number of decision makers
during the project’s history, including local levee districts.
65 In re Katrina Canal Breaches Consolidated Litigation (Robinson), 471 F. Supp. 2d at 695
(E.D.La. 2007).

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linked to a flood control project. It is not clear how this ruling fits with the Supreme
Court’s statement that courts “determine the scope of the immunity conferred, not by
the character of the federal project or the purposes it serves, but by the character of
the waters that cause the relevant damage and the purposes behind their release.”66
There appears to be little controversy that the Hurricane Protection System was
a flood control project, and so the Corps likely would be immune from claims based
on that system’s failure. However, some plaintiffs have alleged that their claims are
based not on the levee and floodwall failures, but on MRGO, which they argue is
solely a navigational project. Section 702c has already been found not to apply to
MRGO by the Fifth Circuit in 1971, in Graci v. United States.67 In the 1971 case,
which followed Hurricane Betsy, litigants argued the construction of MRGO caused
their properties to flood. The circuit court refused to find Section 702c applied to
all flood damage actions, stating it would be “contrary to the express policy of the
Federal Tort Claims Act.”68 However, the Graci case predates Central Green
Company
.
Also, language in a more recent Fifth Circuit case might imply that projects with
mixed purposes (i.e., that are not purely flood-related) may be covered under the
FCA, in which case a navigational channel that served some flood control purposes
could be covered under the FCA. A 1999 decision by the Fifth Circuit refused to find
FCA immunity where the action was neither “associated with flood control” nor
“clearly related to flood control,”69 seemingly establishing immunity for those
projects that are associated with or clearly related to flood control. The government
has argued that MRGO serves some flood control purposes.70
Negligence
Only after a court decides the FTCA and the FCA defenses in the plaintiffs’
favor would it consider the negligence of the federal government. The plaintiffs will
still have to show that the federal government owed them a duty when it built the
Hurricane Protection System. The plaintiffs must show that the federal government
breached that duty, that the breach caused harm, and that the plaintiffs were injured
as a result of that breach.
The most difficult factor of negligence for the plaintiffs to prove appears to be
the second one — that the duty was breached by the Corps. To succeed on this
count, the plaintiffs would have to show that specific properties were flooded
because the Corps failed to exercise reasonable care. This argument could be based
on the allegedly faulty design, construction, and maintenance, arguing that the levees
fell apart. Or it could be based on a theory that the system was overwhelmed because
66 Central Green Co. v. United States, 531 U.S. at 434.
67 Graci v. United States, 456 F.2d 20, 27 (5th Cir. 1971)
68 Graci v. United States, 456 F.2d at 27.
69 Kennedy v. Texas Utilities, 179 F.3d 258, 263 (5th Cir. 1999).
70 In re Katrina Canal Breaches Consolidated Litigation (Robinson), 471 F. Supp. 2d at 695-
97.

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of water funneled by MRGO and that this result was reasonably foreseeable and
preventable.
A common defense for such a claim is that the damage was caused by an act of
God, in the case of Hurricane Katrina, a hurricane. The act of God defense appears
to apply the most easily to those levees and floodwalls that were overtopped by the
waters. They essentially failed because their design capacity was exceeded by the
unusually high storm surges brought on by Katrina. However, as was discussed
earlier, some of the overtopping occurred because some levees and floodwalls had
subsided by as much as two feet. Also, plaintiffs may argue that the storm surge was
as large as it was because of MRGO, which was the result of an act of Congress, not
of God.
It may be more difficult to defend the system breaches that some studies have
attributed to design defects. The purported design defects reportedly led to the
deterioration of the four levees nearest downtown New Orleans that failed before
reaching their design capacity. The failure of these levees might also be attributed
to negligent construction or negligent maintenance.
The district court would follow state law when reviewing for negligence.
Louisiana is a comparative fault state, meaning if multiple actors are negligent, they
are each responsible only for that portion of the harm that they caused.71 This applies
even if all of the actors are not parties to the suit. In this case, if it is found that
negligent maintenance of the levees caused the flooding, the Corps would be
responsible only for that portion of the blame attributed to it, as opposed to the local
levee boards, or contractors that may have worked on the project.
Conclusion
In 2008, two key decisions were made in the Katrina litigation. In January, the
federal district court dismissed certain counts of the class action that alleged federal
liability for levee failures, citing Section 702c immunity as a bar to the claims.72 That
decision barred recovery for flood damage determined to be caused by levee failures,
but allowed the plaintiffs to proceed with the litigation with respect to MRGO.73 In
May 2008, the court held that Section 702c immunity did not apply to claims that
alleged liability for MRGO because MRGO was a navigation project, rather than a
flood control project.74
71 La. C.C. art. 2323: comparative fault means a “percentage of fault of all persons causing
or contributing to the injury, death, or loss shall be determined, regardless of whether the
person is a party to the action or a nonparty, and regardless of the person’s insolvency,
ability to pay, immunity by statute ... or that the other person’s identity is not known or
reasonably ascertainable.” See also La. R.S. 9:2800.68
72 In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, January 30, 2008.
73 Id.
74 In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, May 2, 2008.

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The liability of the United States Army Corps of Engineers for damages
following Hurricane Katrina appears to be in the hands of a jury. In such a case, with
the previous decisions issued by the judge regarding Section 702 immunity for the
levees and MRGO, the jury would have to establish first whether any legal defense
is available to the Corps, such as the discretionary function exception under the
FTCA. This determination will examine the design, construction, maintenance, and
purpose of MRGO. The Corps’ liability depends on whether the Corps’ actions are
found to be discretionary. Only after making these decisions will the jury consider
the question of whether the Corps acted without reasonable care in regard to the
project. Even if the Corps is found liable, its liability could be reduced if other
parties share responsibility.