Transcript Legal Aspects: No Adverse Impact Floodplain Management

Natural Hazard Mitigation Association
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BUILDING RESILIENCE
WORKSHOP II
March 17-19,
March 17-19, 2011
New Orleans, LA
Edward A. Thomas, Esq.
[email protected]
617-515-3849
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Natural Hazard Mitigation Association
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Good Day!
 I appear today representing:
The Natural Hazard Mitigation Association
This is not and cannot be legal advice
This is a statement of general principles of ethics, law
and policy
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Natural Hazard Mitigation Association
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The Choice of Development or No
Development is a False Choice!
The Choice We Have as a Society is Rather Between:
1. Well planned development that protects people and
property, our environment, and our precious Water
Resources while reducing the potential for litigation; or
2. Some current practices that are known to harm people,
property, and natural floodplain functions… and may lead to litigation
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and other challenges
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Key Themes
 We Need To Think Broadly To Solve Our Serious Problems
 We Must Stop Making Things Worse
 Right Now We Have A System Which Rewards Dangerous
Behavior
 We Need To Remove Bad Incentives, Reward Good
Planning, Safe Building, and Safe Reconstruction
The Concepts Which This Workshop Is Considering
Are Very Much a Step in The Right Direction
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To Set the Stage For Our Discussion
 Lets discuss some basics of Law
 In the Law-especially criminal law- Attorneys often
seek to identify someone else to take the blame
 For increased flood damages that “Someone Else” is
often…
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Mother Nature
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Does Nature Cause Disasters?
 Dr. Gilbert White, the late, great, founder of the
internationally recognized Natural Hazards Center,
headquartered in Colorado, stated the facts:
“Floods are Acts of Nature; But Flood Losses Are
Largely Acts of Man”
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I Hope All of You Will Agree
 Among the Most Clear Lessons of The Horrific Floods
of this Decade:
 There Is No Possibility of A Sustainable Economy
Without Safe Locations for Business and Industry to
Occupy
 We Need Safe Housing for Employees to Work at
Businesses and Industry – to Have an Economy at All
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USACE Slide courtesy of Pete Rabbon
Residual Risk Can Be Increased
All Shareholders Can Also Contribute to Increased Risk!
Initial Risk No Warning/Evacuation Plan- or A
Poorly Developed and Exercised Plan
RISK
Upstream Development or
Wildfires Increases Flows
Lack of Awareness of Flood Hazard-Lack of
Flood, Business Interruption, DIC Insurance
Critical Facilities Not Protected
From Flooding
Increased and more Costly
Development
Levees Not Properly
Designed/Maintained
Vastly Increased
Residual Risk
RISK Increase Factors
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Central Message
Even If We Perfectly Implement Current
National Minimum Standards,
Damages Will Continue or Increase.
Remember, we have done a number of positive things,
both non-structural and structural, but…
We’ll discuss why that is…
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But There Is Hope!
 New and exciting APA and ABA awareness and initiatives
 Improved FEMA Flood Mapping Program-Risk MAP
 The formation of the National Hazard Mitigation
Collaborative Alliance
 Formation of the Natural Hazard Mitigation Association
 USACE Silver Jackets Program
 The higher standards being considered by this Board and
other communities and states.
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Natural Hazard Mitigation Association
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With Improper Development Flood
Heights May Increase Dramatically More
Than One Foot
 No Adverse Impact: A New Direction in Floodplain
Management Policy
By Larry Larson PE, CFM and Doug Plasencia PE, CFM
 Published in Natural Hazards Review November
2001, IAAN 1527-6988
 Depending on the Watershed, Improper
Development Might Cause a 3-5 or more Foot
Increase in flood Heights
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Safe Development Is Affordable
 The American Institutes for Research has conducted a
detailed study on the cost of floodproofing and
elevation
 That study supports the idea that elevation and
floodproofing costs add very small sums and have a
significant societal payback
 The Multihazard Mitigation Council, a group which
includes private industry representatives, reports that
hazard mitigation has a proven 4-1 payback
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Deeper and Higher Water Results?
Serious Public Safety Issues
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A Solution
 Go Beyond NFIP Minimum Standards
 No Adverse Impact-CRS Type:
 Development decision-making
 Planning
 Emergency Preparedness
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No Adverse Impact Explained
NAI is a concept/policy/strategy that broadens one's focus from
the built environment to include how changes to the built
environment potentially impact other properties.
NAI broadens property rights by protecting the property rights
of those that would be adversely impacted by the actions of
others.
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What Is The Result Of Implementing
Higher Standards?
 PROTECTION OF THE PROPERTY RIGHTS OF ALL
 Legally Speaking, Prevention of Harm is Treated
Quite Differently Than Making the Community a
Better Place.
 Prevention of Harm to the Public Is Accorded
Enormous Deference by the Courts
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Higher Standards:
 Are consistent with the concept of sustainable
development
 Provide a pragmatic method for regulation
 Make sense on a local and regional basis
 May be rewarded by FEMA’s Community Rating
System, especially under the new CRS Manual
 Can reduce the potential for litigation against a
community
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No Adverse Impact Floodplain
Management
 New concept?
 No, it is a modern statement of an Ancient Legal Maxim
 “Sic utere tuo ut alienum non laedas”
 Use your property so you do not harm others
 Detailed Legal Papers by Jon Kusler and
Ed Thomas available at: www.floods.org
 More information in ASFPM’s A Toolkit on Common
Sense Floodplain Management at: www.floods.org
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Why Are Some Governments Not
Acting To Reduce Harmful
Development?
 NOAA Just Completed A Study Which Surveyed
Planners As To Impediments To Safe
Development. Two Major Reasons Cited:
 Fear of the “Taking Issue”
 Economic Pressure
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Natural Hazard Mitigation Association
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Natural Hazard Mitigation Association
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Reason #1 For Insufficient Standards:
Economics and Externality
 When One Group Pays Maintenance or
Replacement of Something Yet Different Person or
Group Uses That Same Something, We Often Have
Problems
 Disaster Assistance Is An Classic Example of
Externality
 Who Pays For Disaster Assistance?
 Who Benefits?
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Who Pays For Disaster Assistance?
 Costs of flooding are usually largely borne by:
a) The Federal and Sometimes the State Taxpayer
Through IRS Casualty Losses, SBA Loans,
Disaster CDBG Funds, and the Whole Panoply
of Federal and Private Disaster Relief
Described in the Ed Thomas and Sarah Bowen
Publication "Patchwork Quilt” (Located at:
http://www.floods.org/PDF/Post_Disaster_
Reconstruction_Patchwork_Quilt_ET.pdf
b) By Disaster Victims Themselves
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Cui Bono? (Who Benefits?)…
 From Unwise or Improper Floodplain Development-
a)Developers?
b) Communities?
c) State Government?
d) Mortgage Companies?
e) The Occupants of Floodplains?
Possibly in the short-term, but
definitely NOT in the long- term
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Why Should Government Do
Something About This?
 Fundamental Duty
 Protect The Present
 Preserve A Community’s Future
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Why Else Should Government
Do Something About This?
 In a Word:
Liability
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Litigation for Claimed Harm Is Easier
Now Than In Times Past
 Forensic Hydrologists
 Forensic Hydraulic Engineers
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Three Ways to Support Reconstruction
Following Disaster Damage
Self Help: Loans, Savings, Charity, Neighbors
2. Insurance: Disaster Relief is a Combination of
Social Insurance and Self Help
3. Litigation
1.
The preferred alternative is…
To have NO DAMAGE
Due to Land Use and Hazard Mitigation
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Situations Where Governments
Have Been Held Liable
 Construction of a Road Blocks Drainage
 Stormwater System Increases Flows
 Structure Blocks Watercourse
 Bridge Without Adequate Opening
 Grading Land Increases Runoff
 Flood Control Structure Causes Damage
 Filling Wetland Causes Damage
 Issuing Permits for Development Which Causes Harm to
a Third Party
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Natural Hazard Mitigation Association
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Reason #2 Why Safer Standards Are Not
Implemented:
Concerns About A “Taking”
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Increase in Cases Involving Land Use
 There has been a huge increase in Taking Issue Cases,
and related controversies involving development
 Thousands of cases reviewed by Jon Kusler, me and
others
 Common thread? Courts have modified Common Law
to require an Increased Standard of Care as the state
of the art of Hazard Management has improved
 Government is vastly more likely to be sued for
undertaking activity, or permitting others to take
action which causes harm than it is for strong,
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fair regulation
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Natural Hazard Mitigation Association
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Taking Lawsuit Results:
 Regulations clearly based on
Hazard Prevention and fairly
applied to all: successfully held to
be a Taking – almost none!
 Many, many cases where
communities and landowners held
liable for harming others
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Natural Hazard Mitigation Association
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Can Government Adopt Higher
Standards
Than FEMA Minimums?
 FEMA Regulations Encourage Adoption of Higher
Standards-”… any floodplain management
regulations adopted by a State or a community
which are more restrictive than (the FEMA
Regulations) are encouraged and shall take
precedence.” 44CFR section 60.1(d). (emphasis
added)
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A Conservative, Property Rights View
 The Cato Institute Indicates that Compensation is
Not Due When:
“… regulation prohibits wrongful uses, no
compensation is required.”
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Might All Communities Wish To Consider
Even Higher Standards?
Consider:
A) Uncertainties in flood elevations-50% Confidence
B) ASFPM No Adverse Impact Paper on flood
height increases due to future watershed development
C) Consequences if a factory, water treatment plant or other
critical facility is flooded
D) Consequences of a Levee overtopping
E) 50% Chance That 1% Flood will be exceeded
within 70 years according to Bulletin 17 B of the WRC
F) Changes in flood heights and velocities due to factors
such as upstream wildfires and mud slides/mudflow
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H) Climate Variability
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Hazard Based Regulation And The
Constitution
 Hazard based regulation is generally sustained
against Constitutional challenges
 Goal of protecting the public accorded
ENORMOUS DEFERENCE by the Courts
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Summary
 Higher Regulatory Standards Are:
A) Legal
B) Equitable
C) Practical
D) Defensible in Court
E) Supported by good economic analysis
F) The very basis of sustainability
G) Rewarded under the Community Rating
System
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Natural Hazard Mitigation Association
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Take Away Messages For Today
Prevention
 We Throw Money At Problems After They
Occur
 We Can Pay A Little Now; Or Society Pays
Lots Later
 The Legal System Is Ready To Help Society
Pay Later
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Take Away Message
 Community Leaders Have Responsibility for
Public Safety and Need To Be Aware:
 Many Areas Can Flood
 Uninsured Victims Will Likely Sue- and will try to
find someone to blame
 Fair Harm Prevention Regulations Help Everyone
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Message For All Involved In
Community Development
 The Fundamental Rules of Development
Articulated, By Law, Envision Housing and
Development Which Is:
 Decent
 Safe
 Sanitary
 Affordable
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Flooded Development Fails That Vision!
 Housing And Development Which Flood Are:
 Indecent
 Unsafe
 Unsanitary
 Unaffordable- by the Flood Victims, By Their
Community, By The State, and By Our Nation.
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Questions and Answers
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