MANAGING THE NEXT BIG FLOOD: POLICY, LIABILITY & THE LAW

Living With Floods: From Science to Policy March 11-12, 2009 University of Iowa

Sam Riley Medlock, CFM, JD ASFPM Policy Counsel

MANAGING THE NEXT BIG FLOOD

  Association of State Floodplain Managers   Who we are, what we do, why we’re here

 Community Liability & Floods   Basics & current state of the law   Managing community liability

 No Adverse Impact Flood Risk Management   How NAI risk management can prevent loss &

reduce liability

  But first, a friendly disclaimer…

 This presentation addresses general principles of law and does not constitute legal advice.

 For legal advice, please consult a lawyer licensed in your jurisdiction.

MANAGING THE NEXT BIG FLOOD

ASSOCIATION OF STATE FLOODPLAIN MANAGERS The mission of ASFPM is  to promote education, policies, and activities that mitigate current and future losses, costs, and human suffering caused by flooding, and  to protect the natural and beneficial functions of floodplains –  all without causing adverse impacts.

IA

14,000  members    27  Chapters    State  Associa7ons  &  Pending  Chapters  

WI

MN

IL

MI NY

IN OH

VA

NC

SC

FL

MS AR

LA TX

OK NM AZ

CO

MO FMA

NORFMA MT

UT NE

KS

GA

KY

NJ

MD

RI

AL

ASSOCIATION OF STATE FLOODPLAIN MANAGERS

What’s missing?

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Source: NWS Hydrologic Info. Ctr. - Flood Losses: Compilation of Flood Loss Statistics

FLOOD RISK MANAGEMENT

 Increasing Flood Damages  Risk = Probability x Consequences  As more property at risk, consequences of floods rise

FLOOD RISK MANAGEMENT: ROLES

 So, who manages flood risk, anyway?  Federal Role

  National Flood Insurance Program   FEMA, Corps, EPA & other federal

agencies  State Role  Local Role  Personal Role

FLOOD RISK MANAGEMENT: ROLES

 So, who manages flood risk, anyway?  Federal Role  State Role

  State Floodplain Managers   State Emergency Management   Statutes   State Land Use Programs & Policies

 Local Role  Personal Role

FLOOD RISK MANAGEMENT: ROLES

 So, who manages flood risk, anyway?  Federal Role  State Role  Local Role

  Development Standards & Review   Permitting & Codes Enforcement   Local Emergency Management

Programs   NFIP & the Community Rating System

 Personal Role

FLOOD RISK MANAGEMENT: ROLES

 So, who manages flood risk, anyway?  Federal Role  State Role  Local Role  Personal Role

  Risks & Decisions   Information & Preparation   Responsibility & Expectations

FLOOD RISK MANAGEMENT: NFIP

 NFIP Quid Pro Quo  Local governments join the NFIP & manage development to prevent flood losses

  In exchange, federally-backed flood insurance is available to property owners in that community.

FLOOD RISK MANAGEMENT: NFIP

 NFIP = Insurance Program  NFIP = NOT Floodplain Management

NFIP minimum standards will not protect lives and property,

esp. in future

FLOOD RISK MANAGEMENT: ROLES

 So, who manages flood risk, anyway?  Federal Role  State Role  Local Role

  Development Standards & Review   Permitting & Codes Enforcement   Local Emergency Management

Programs   NFIP & the Community Rating System

 Personal Role

FLOOD RISK MANAGEMENT: ROLES

 So, who manages flood risk, anyway?  Federal Role  State Role  Local Role

  Development Standards & Review   Permitting & Codes Enforcement   Local Emergency Management

Programs   NFIP & the Community Rating System

 Personal Role

MANAGE FLOOD RISK - NATURALLY

 Structural Flood “Control”   Flawed Benefit-Cost Analysis   Single-purpose = impound or move as

much water as possible downstream as quickly as possible

  Higher peaks & lower troughs

  Subject to failure   Ex. most levees,

channels, dams

MANAGE FLOOD RISK - NATURALLY

 Nonstructural Flood Risk Management   Inclusive Benefit-Cost Analysis   Multi-purpose: water quality, habitat,

amenity, flood damage reduction   Smoother peaks & troughs   Minimal failure risk   Ex. watershed-based planning,

preserved & restored floodplains

LOCAL ROLES & RESPONSIBILITIES

 Establish & enforce local development standards   Review proposed development for

watershed impacts   Ensure mitigation of impacts

 Higher standards   Protect lives & property   Minimize economic disruption   Prevent misery   Manages community liability

COMMUNITY LIABILITY: THE LAW

 Federal Law   U.S. Constitution   Flood Control Act of 1928   Federal Tort Claims Act of 1946   National Flood Insurance Act of 1968

 State Law   State Constitutions   State Legislation

 Local / County

COMMUNITY LIABILITY: THE LAW

U.S. Constitution & 5th Amendment Takings “[N]or shall private property be taken for public use, without just compensation.”

 Eminent Domain  Regulatory Takings  5th Amendment & Flood Risk Management

COMMUNITY LIABILITY: THE LAW

 Takings Factors   Economic impact on the property owner   Public purpose of the regulation   Character of government action

 Generally, measures will be upheld if   Valid public purpose   Leaves the owner with some viable use

COMMUNITY LIABILITY: THE LAW

 Upheld   Environmental regulations

 Preventing pollution  Protection of important community resource

 Historic preservation  Design controls  Scenic viewsheds

COMMUNITY LIABILITY: THE LAW

 Upheld   Public safety regulations

 Flood damage prevention  Temporary Moratoria  Nuisance  Post-disaster redevelopment

MANAGING COMMUNITY LIABILITY

 Myths & Realities   “If I can’t build it, then you took it.”   “NFIP minimum standards are enough.”   “Higher standards will result in takings,

making us liable to landowners and developers.”

  “No community has been held liable for issuing a permit.”

MANAGING COMMUNITY LIABILITY

Reality

Public officials and the communities

they serve are far more likely to be

successfully sued for permitting

development that causes harm

than for preventing it.

NO ADVERSE IMPACT (NAI)

 No Adverse Impact Flood Risk Management

 Sic utere tuo ut alienum non laedas So use your own as not to injure another’s property.

 How to follow the No Adverse Impact principle:   Identify ALL the impacts of a proposed

development   Notify impacted stakeholders of the

impacts of the proposed development

NAI FLOOD RISK MANAGEMENT

 How to follow the No Adverse Impact principle:   Design or re-design the project to

avoid adverse impacts   Require appropriate mitigation

measures acceptable to the community & the affected members of the community

NAI FLOOD RISK MANAGEMENT

NAI & THE COURTS

 Legal Trends   Takings statutes & claims on the rise   Technological advances & improved

hazards modeling result in increased standards of care

  Possible strict liability standard for O&M of flood control structures

NAI & THE COURTS

 Hazard based regulations successfully held to be a taking—almost none!

 Many, many cases where communities & landowners held liable for harming others

LESSONS FROM THE COURTS

 Do your homework & present your findings   Be open & inclusive

  Collaborate with upstream & downstream neighbors

  Involve & engage your public

  Get it on the record  Data, studies & testimony   Cost savings, short-term & long-term

benefits

LESSONS FROM THE COURTS

 Hazards-based regulation   Direct connection between measures

adopted and harms prevented   Apply standards consistently & fairly   Allow alternative uses   Provide for appeals

 Be Bold!   Back your staff   Defend decisions

GOVE V. CHATHAM (MASS. 2005)

“It is undisputed that [the parcel at issue] falls within a floodplain, and that its potential flooding would adversely affect the surrounding areas if the property were developed with a house. Reasonable government action mitigating such harm . . . typically does not require compensation.”

THE TOWN OF CHATHAM WON

 Bylaw designed to protect people & property

 Bylaw fair & consistently applied  Allows for alternative uses  Testimony of risk to emergency workers  Town willing to defend itself

NAI FLOOD RISK MANAGEMENT

 Protective Standards  Engaged Public  Cooperative Relationships

NAI FLOOD RISK MANAGEMENT

 Protective Standards   Freeboard & Setbacks   Maintain Valley Storage   “No Rise” Floodplains   Ensure safety & accessibility of critical

facilities   Future Conditions   Easements, exactions   Transferable Dev.

Rights

NAI FLOOD RISK MANAGEMENT

 Integrated Resource Management   Land Use   Flood Risk   Stormwater   Infrastructure

NAI FLOOD RISK MANAGEMENT

 Partners & Funding   Special Purpose Levies & Districts   Land Trusts & other NGOs   NRCS Conservation Programs   FEMA Mitigation Programs   USACE Non-structural authorities   EPA water programs   State conservation & stewardship funds   Regional entities

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CONCLUSION

 It costs less to prevent flood damages than to recover from disaster, or to protect poorly-sited development.

 Through a cooperative effort of effectively managing growth, flood risks can be stabilized, even reduced.

WHAT WILL BE YOUR LEGACY?

LAWS & NATURE FAVOR THE PREPARED

YOU ARE NOT ALONE…

TEAMWORK FOR SUCCESS!

 Regional, state & national teams work   To define, communicate & manage risk   Promote sustainable land use and

practices   Prevent future flood disasters