Engineering firm’s compliance with FEMA flood standards as a defense to subsequent negligence claims. Alexander v. The Woodlands Land Development Company. United States District Court for the Southern District of Texas (2018). by Hugh Anderson

Summary: The Woodlands Land Development Company and the Howard Hughes Corporation jointly developed a residential community called Timarron Park. They retained LJA Engineering and James Bowles to design the stormwater drainage system for the new development.

The tract of land on which Timarron Park was ultimately constructed was a low area that included both a FEMA-designated 500-year floodplain and a FEMA-designated 100-year floodplain. In 1994, just a few years before the design and development commenced, a storm had caused flooding that exceeded the 500-year flood levels. The development team located the houses of Timarron Park in the 500-year zone, while avoiding the lower 100-year zone. In 2017, heavy rainfall accompanying Hurricane Harvey caused several feet of water to inundate the streets and houses of Timarron Park.

Following the hurricane, a group of 487 Timarron Park residents sued the developers and the stormwater engineers, contending that the rainfall and flooding were foreseeable (especially in light of the 1994 flood) and the houses had been negligently sited, and further claiming that the developers had misrepresented the flood exposure of the houses. In response, the defendants argued that the National Flood Insurance Act preempted the plaintiffs’ claims. The gist of this argument was that the plaintiffs’ claims were in essence challenging the FEMA flood designations, and that such designations can only be challenged by following certain federal regulatory procedures—not by bringing traditional state-law negligence claims.

Decision: The federal court was not persuaded by the defendants’ arguments. The court noted that the plaintiffs were not challenging the FEMA flood designations, but rather were challenging the developers’ and engineers’ judgment in choosing to locate the houses in the 500-year floodplain, and pursuing claims of misrepresentation. As a result, the court ordered that the case be remanded to state court, where the negligence and misrepresentation claims could be adjudicated under Texas law.

Comment: Although much of the case concerns technical questions of federal court jurisdiction, it is significant that the court did not embrace the argument that FEMA designations are the sole source for determination of the soundness of planning and design decisions regarding flood exposure. By implication, the professional standard of care may require going beyond adherence to codes and FEMA maps, by also taking into account “foreseeable” conditions, perhaps based on recent trends or emerging scientific information.