Flowage Easements

Huntington District
Published Jan. 8, 2024


How it all began
The Great Flood of 1913 (March 23-March 26)

A Few Key Points

  • Death Toll estimated at 650
  • 250,000+ people left homeless
  • 40,000 + homes destroyed
  • Tens of thousands livestock deaths
  • Dayton had $73 million in damages, current value $1.75 billion

Flowage Easement
The perpetual right, power, privilege and easement to overflow, flood and submerge the lands affected; reserving, however, to the fee owner of the lands all such rights and privileges as may be used and enjoyed without interfering with or abridging the rights granted in the flowage easement.

  • Flowage Easements may or may not be in a natural flood plain.
  • Flood insurance may be required for properties in flowage easement. Usually the lender determines if it is needed.
  • Refer to the deed for individual rights pertaining to the flowage easement. Especially, in the Muskingum Basin.  
  • Rights were acquired at fair market value in late 1930’s and early 1940’s.

Why do we have Flowage Easements

  1. Increase flood stage storage capacity
  2. Reduce property damage

What can we do with land in a flowage easement?

  • Recreational activities: sports fields, hunting, wildlife habitat, campgrounds (transient)
  • Crop Production
  • Livestock
  • Timber harvest and production
  • Construction with prior approval

Grandfathered Structures

  1. If removed can not be replaced.
  2. Foot print can not be changed / increased.
  3. Can not be rebuilt if greater than 50% damage
  4. Upkeep and maintenance permitted

Encroachments on land encumbered by a flowage easement are violations of legal restrictions on the property and are subject to litigation. They also constitute a title defect “cloud” which may affect the future sale of the landowner’s property, and the Government cannot assist landowners in the resolution of title defects.

Why Encroachments Happen

  • The majority of, flowage easements in the Huntington District were acquired in the 1930s and 1940s. Additional flowage easements were acquired over time. A typical title search will most likely miss this important information due to the timeframe. Ohio Marketable Title Act only requires a title search to go back 40 years. ** Kentucky, Virginia, and West Virginia aren’t Marketable Title Act states, but generally research between 30-60 years depending on the property type. ** State law does not extinguish Federal land rights**
  • Poor title searches, easement information not brought forward to new title.
  • People unaware of the easements and their restrictions.
  • Sellers not disclosing information when they sell/transfer their property.
  • Real-estate professionals unaware of flowage easements and locations.

Suspected Encroachment Resolution

  1. Elevation survey performed;  structure above flowage easement.
  2. Structure below flowage easement elevation, structure legally in place.
  3. Structure below flowage easement elevation and land owner voluntarily removes structure.
  4. Structure below flowage easement elevation and Consent to Easement issued.
  5. Structure below flowage easement elevation, Landowner refuses to remove structure case is forwarded to U.S. Attorneys office. Court forces removal of encroaching structure.

Consent to Easement
Legal signed and recorded document between the Army Corps of Engineers and the involved party permitting a particular structure to remain or be constructed. Document has photograph, surveys and maps showing exact location of structure.

  •  Examples: culvert, driveway to match existing contour, pipeline, excavated pond, business sign…

Consent Terms

  1. NO new structures shall be built without prior approval!
  2. NO increased footprints to consented structure shall be made. (if there are changes structure will be removed)
  3. NO fill shall be placed in the easement area.
  4. Upon transfer of property consent must be disclosed and new owner shall be issued a consent.