Fitzpatrick v. Okanogan County – Flood Control Projects

In Fitzpatrick v. Okanogan County, 169 Wn.2d 598 (2010),  the Supreme Court held that the County and Washington State had no immunity from liability for an inverse condemnation claim arising out of the construction of a flood control project.  The County and the State had made major improvements to a dike located one-half mile upstream of the plaintiffs’ property, which was designed to provide flood protection to Highway 20 and some other property.  Hydrogeologist reports indicated that the dike work impacted the river by cutting off natural overflow channels, thereby compressing more flood flow into the main channel and reducing the flood conveyance capacity of the river upon which the plaintiffs’ property was situated.  During a flood event, the water washed away the plaintiffs’ home.  The Supreme Court affirmed that the common enemy doctrine did not apply, which allows landowners to alter the flow of surface water to the detriment of neighbors, so long as they do not block a watercourse or natural drainway.  Instead, the Court applied the “natural watercouse rule,” which prevents parties from interfering or diverting water from a natural watercourse and damaging other properties.  Essentially, the Court concluded that the water damaging the plaintiffs’ property was water within a natural watercourse – not surface water – which subjected the County and State to liability. 

This case is troubling since many governmental agencies either actively engage in constructing flood control projects or indirectly support private citizens who sandbag their property to prevent flooding.  Apparently, now flood waters which have formed a channel when they jump the banks of the river cannot be prevented without providing for this capacity in another area of the floodplain.  Presumably flood waters that sheet flow over the floodplain would still be considered outlaw waters subject to the common enemy doctrine.

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