When Flood Control Floods Your Land: Why a Recent Federal Court Opinion Matters to Texas Landowners
By Trey Wilson, San Antonio Real Estate Attorney and Texas Water Lawyer
Landowners in Texas live with water in a way most Americans do not. Rivers, creeks, arroyos, reservoirs, and flood-control projects shape how land can be used, developed, farmed, and protected. When water moves where it should not, the consequences are immediate and expensive.
A recent precedential opinion from the United States Court of Appeals for the Federal Circuit reinforces an important principle that Texas landowners need to understand: when government action predictably causes repeated flooding of private land, that flooding can constitute a compensable taking of property under the Constitution.
The Case in Plain Terms
In Ablan v. United States, private landowners alleged that federal flood-control operations caused recurring flooding of their property. The flooding was not the result of a single storm or an unpredictable natural disaster. It was tied to how a government project was designed and operated.
The United States argued that it should not be liable because the flooding was temporary, incidental, or unintended. The Federal Circuit rejected that framing. The court held that recurrent flooding caused by government action may constitute a Fifth Amendment taking, even if the flooding is not permanent and even if the government did not formally intend to inundate the land.
What matters is causation, foreseeability, and the degree of interference with the landowner’s property rights.
Why This Opinion Matters in Texas
Texas has more flood-control infrastructure than most states. Reservoirs, spillways, detention basins, drainage channels, and engineered waterways exist across the Hill Country, South Texas, Central Texas, and the Gulf Coast. Many of these systems are operated by state agencies, river authorities, or political subdivisions.
When those systems fail, or when they operate as designed but at the expense of downstream landowners, disputes follow.
1. Temporary Flooding Is Not a Free Pass for the Government
For years, governments have relied on a misleading argument: if flooding is temporary, no taking has occurred. That argument is increasingly ineffective.
The Federal Circuit confirmed that temporary or intermittent flooding can still be a taking when it is recurring, foreseeable, and caused by government action. A property does not need to be permanently underwater to lose its utility or value.
This matters for Texas landowners whose property floods multiple times a year due to dam releases, drainage reconfiguration, or altered watershed flows. Repetition changes the legal analysis.
2. Government Intent Is Not the Legal Standard
Another common defense in Texas drainage cases is the claim that the government did not intend to flood private land. That defense is often raised by municipalities, river authorities, and special districts.
The Federal Circuit made clear that intent is not controlling. The question is whether flooding was the predictable result of government action.
In Texas, where hydrology studies, engineering reports, and flood models are standard, foreseeability is rarely hard to prove. Agencies model outcomes and understand downstream consequences.
3. Use and Enjoyment of Land Is a Core Property Right
Texas law has long recognized that property rights include more than bare title. The ability to use and enjoy land without artificial interference is fundamental.
Repeated flooding interferes with access, structures, agricultural use, fencing, roads, and long-term development. When government action deprives a landowner of those uses, the Constitution does not require the landowner to absorb the loss without compensation.
4. This Reasoning Applies Beyond Federal Projects
Although Ablan involved the federal government, the legal framework applies equally to state agencies, river authorities, municipalities, and special districts throughout Texas.
The constitutional analysis does not change simply because the defendant is local rather than federal.
How This Affects Texas Water Diversion and Drainage Disputes
In Texas, flooding cases are often framed as negligence or nuisance claims. Those claims have limits. Takings claims focus on who should bear the cost of a public benefit.
Flood control benefits the public. When the cost of that benefit is disproportionately imposed on a small group of landowners, the Constitution may require compensation.
Practical Takeaways for Texas Landowners
- Repeated flooding matters more than isolated events.
- Engineering predictability matters more than stated intent.
- Loss of use can be as significant as physical damage.
- Flood-control purpose does not eliminate constitutional scrutiny.
Closing Perspective
Texas was built on land ownership and control of water. Flood-control infrastructure is necessary, but it is not immune from constitutional limits.
When government water management crosses the line from regulation into appropriation, landowners still have rights. If your land floods because someone upstream made a decision, the law may be on your side.
