On July 28, 2025, the Director of Civil Works for the United States Army Corps of Engineers (USACE), Eddie Belk, issued guidance for analyzing induced flooding. This guidance is intended to help USACE Districts and Divisions in managing an analysis of induced flooding in planning studies (and those projects under design or construction) as a result of “recent court decisions on the takings implications of induced flooding.” USACE has now concluded that “it should not be assumed, in lieu of a takings analysis, that takings will not result merely because any induced flooding will be slight, or because the induced flooding is temporary or intermittent in nature.”
While there are several cases that appear to be driving USACE’s new guidance, the primary case seems to be Ideker Farms v. United States, 71 F.4th 964 (Fed. Cir. 2023). This 2023 decision of the Federal Circuit appears to be causing USACE to think more conservatively about the possibility of USACE actions resulting in later “takings” of private property, and this is affecting the way in which USACE is thinking about real estate questions that come up in the context of planning studies.
The Fifth Amendment to the U.S. Constitution includes the Takings Clause which instructs: “nor shall private property be taken for public use, without just compensation.” When performing planning studies, USACE has always examined the hydraulic impacts of a proposed project to determine whether third-party lands would be affected by a takings, and therefore whether those third parties needed to be compensated for the impacts. In fact, guidance on the books from 1996, 1998, and 2000 all confirms this approach. But in doing so, USACE had historically only looked at certain events to determine impacts.
Influenced by Ideker, USACE’s guidance provides a framework for how to analyze these issues going forward. But to understand the guidance and to apply the judgment that is required by the new guidance, a proper understanding of takings law in the context of flooding is required. Click here for the full article to understand that context and to apply that context to the new guidance.