natural hazard mitigation association 1 cwcb proposed floodplain rules and regulations expert...

Natural Hazard Mitigation Associationwww.nhma.info

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CWCB Proposed FloodplainRules and Regulations

Expert Testimony for Rulemaking HearingNovember 15, 2010

Edward A. Thomas, Esq.

[email protected]

mailto:[email protected]


Good Day! I appear today representing: The Natural Hazard Mitigation Association The Natural Hazards Center of the University of Colorado The Association of State Floodplain Managers

This is not and cannot be legal adviceThis is a statement of general principles of ethics, law and policy

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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 and other challenges 3


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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 ReconstructionThe Regulations Which This Board 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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Trends in Flood Damages

Flood losses and reported flood heights are increasing

Demographic trends indicate great future challenges


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Demographic Projection: Colorado Population in 2050

Colorado's population is expected to nearly double by 2050. In 2008, approximately 5 million people resided in the state. By 2050, Colorado's population is projected to be between 8.7 and 10.3 million people, with the majority residing in the Arkansas, South Platte and Metro Basins. However, the western slope of Colorado will see the greatest percentage increase in population during the next 40 years

Citation:A 2050 VISION FOR COLORADO'S WATER SUPPLY FUTURE Authors: Nicole Rowan, CDM, Susan Morea, CDM , Eric Hecox, Colorado Water Conservation Board

Colorado's population is expected to nearly double by 2050.

Where Will These Folks Wish to Live?


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$6 billion annually Four-fold increase

from early 1900s Per capita damages

increased by morethan a factor of 2.5 inthe previous century inreal dollar terms

In the 2000’s Think About Nashville, Atlanta, the Red River of the North

ASFPM Analysis of Trends in Flood Damages$2.2

$2.9

$2.4

$3.4

$2.2

$4.9

$3.3

$5.6

$25

$2.0

0 5 10 15 20 25 30

1910s

1920s

1930s

1940s

1950s

1960s

1970s

1980s

1990s

2000s

Billions (adjusted to 1999 dollars)

USACE Slide courtesy of Pete Rabbon

All Shareholders Can Also Contribute to Increased Risk!

Residual Risk Can Be IncreasedRI

SK

RISK Increase Factors

Vastly Increased Residual Risk

Initial Risk

Critical Facilities Not Protected From Flooding

Levees Not Properly Designed/Maintained

Lack of Awareness of Flood Hazard-Lack of Flood, Business Interruption, DIC Insurance

Increased and more Costly Development

No Warning/Evacuation Plan- or A Poorly Developed and Exercised Plan

Upstream Development or Wildfires Increases Flows

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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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Paul Farmer: Executive Director of the American Planning AssociationJune 2009

“APA's Hazards Planning Research Center is currently preparing FEMA-funded best practice materials showing how hazard-mitigation and adaptation plans can be integrated into comprehensive planning efforts at all scales — from the neighborhood to the region.”

This Document Has Just Been Released and Is Available Excellent in My Opinion


American Bar Association Resolutions 107 A-G Adopted by the ABA House of DelegatesJanuary 2009

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coverages

Summary of Resolution 107 E“The following recommendations of the Financial Services Round Table Blue Ribbon Commission on Megacatastrophes are highly desirable loss mitigationsuggestions:State of the art building codesCost-effective retrofittingLand use policies that discourage construction posing high risk to personal safety or property loss. Property tax credits to encourage retrofittingThese and related elements of loss mitigation are designed to ultimately bring to market affordable insurance policies with broadened coverages.”


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Why Are Floods Getting Worse?Fundamental Misunderstandings:Where is the Floodplain?


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Special Flood Hazard Area

If you prevent floodplain fill,you keep existing development safe.


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Large areas of thefloodplain are filled

and developed.

Fill

Larger Special Flood Hazard Area After Filling


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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


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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Serious Public Safety Issues

Deeper and Higher Water Results?


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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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Why Go Beyond the Current Minimum Standards?

Flood damages are continuing and/or increasing

unnecessarily!

Current approaches deal primarily with how to build in a floodplain vs. how to minimize future damages


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No Adverse Impact Floodplain Management(Such as Higher Standards for Floodplain Management)

What is “No Adverse Impact” Floodplain Management”?

ASFPM defines it as “…an Approach that ensures the action of any property owner, public or private, does not adversely impact the property and rights of others”


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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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According To the Writings of One of Our Greatest Moral Philosophers -Mohandas K. Gandhi:

“Sic Utere Tuo Ut Alienum Non Laedas” That Is, In English: Use Your Property So You Do Not

Harm Others is: “A Grand Doctrine Of Life And The Basis Of (Loving

Relationships) Between Neighbors”


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Who Else Likes Sic Utere…? Colorado Supreme Court

The police power is an attribute of sovereignty and exists without any reservation in the constitution, being founded upon the duty of the state to protect its citizens and provide for the safety and good order of society. * * * It is founded largely on the maxim sic utere tuo, ut alienum non laedas."

People v. Hupp, 53 Colo. 80, 83 (Colo. 1912)


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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

Why Are Some Governments Not Acting To Reduce Harmful Development?


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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?

Reason #1 For Insufficient Standards:Economics and Externality


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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

1. Self Help: Loans, Savings, Charity, Neighbors2. Insurance: Disaster Relief is a Combination of

Social Insurance and Self Help3. Litigation

The preferred alternative is…To have NO DAMAGE

Due to Land Use and Hazard Mitigation


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Lincoln, Nebraska

Flooded Homes May Cost City MillionsCity Held Liable – Damages Still To Be Determined

Photo: Lincoln Star Journal


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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


Short Legal Summary from Colorado

City owed a duty to landowner not to interfere with natural flow of river, either by plan of improvement adopted, or by a failure to maintain it such that flood burden on land was greater than if channel were left in natural state.

Denver v. Pilo, Supreme Court of Colorado, 102 Colo. 326; 79 P.2d 270 (1938)

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How About Immunity? Where revised off-ramp caused flooding…under the Colorado

Governmental Immunity Act, county was required to exercise reasonable care to correct condition….

Larry H. Miller Corp.-Denver v. Bd. of County Comm'rs, Court of Appeals No. 02CA0545 , COURT OF APPEALS OF COLORADO, DIVISION FOUR , 77 P.3d 870 (2003)

And- “…city's storm drainage system flooding plaintiff's adjacent property

constituted continuing trespass….” Docheff v. City of Broomfield, 623 P.2d 69 (Colo. App. 1980)


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Reason #2 Why Safer Standards Are Not Implemented:

Concerns About A “Taking”


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,

fair regulation 48 48


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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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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)


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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Other Contributing Factors: Think about the following scenarios-

Future Conditions Hydrology (increased hydrographs) Debris blockage (models assumes no blockage) Wildfires (exacerbated flows from burned vegetation) Technical assumptions and other uncertainties


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Might Colorado 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 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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Take Away Messages For TodayPrevention 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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