Opening the Flood Gates?: U.S. Supreme Court Holds That Takings Clause Covers Temporary Flooding
When government actions cause flooding of your land, does it constitute a “taking” that triggers the Fifth Amendment’s requirement of “just compensation?” Supreme Court precedent dating back to 1872 teaches that when the flooding is permanent, such as when a new dam creates a lake, a compensable taking has occurred. But what if the flooding is only temporary? Can that constitute a taking? The Federal Circuit said, “Never.” In Arkansas Game and Fish Commission v. United States, the Supreme Court disagreed, and said, “Sometimes.”