FEMA Issues Draft Regulatory Amendments to Implement President Obama’s Executive Order 13690 and the Federal Flood Risk Management Standard; Comments Due by October 21, 2016


Executive Order 11988 (EO 11988) requires Federal agencies to avoid, to the extent possible, the long- and short-term adverse impacts associated with the occupancy and modification of floodplains where there is a practicable alternative. The Federal Emergency Management Agency (FEMA) is now proposing to amend its regulations (found in 44 CFR Part 9) which describes the traditional 8-step process that FEMA uses to implement EO 11988. The amendment is being driven by Executive Order 13690 (EO 13690), issued by President Obama in 2015 to address increased risks as a result of climate change, which changed the definition of “floodplain” for projects that are “Federally funded” (defined as actions involving the use of Federal funds for new construction, substantial improvement, or to address substantial damage to a structure or facility). In these cases, the new broader definition of floodplain (developed under one of three approaches described below) will likely result in a larger floodplain and a requirement to design projects such that they are resilient to a higher vertical elevation. However, for actions that don’t meet the definition of a Federally funded project, FEMA will continue to use the historical definition. Continue Reading

2016 Water Resources Development Act (WRDA) Advances in the Senate with a Good CBO Score

5 DucksIntroduction

The Senate’s Water Resources Development Act (WRDA – S.2848) would reduce the deficit by $6 million in its first decade, the Congressional Budget Office has said. This score makes it more likely that the bill may get floor time, although the very limited number of Congressional sessions between now and the election makes passage of the bill increasingly unlikely.


WRDA is the act by which Congress authorizes new water resources projects, including new ports, locks and levee projects while also advancing improvements to the country’s municipal water programs. Once upon a time, WRDA was passed about every two years, but starting in the late 80’s the time between acts started slipping, culminating in acts in 2000, 2007, and 2014. The Republican leadership, in particular Congressman Schuster in the House, has been pushing to pass a bill this year, returning Congress to its every other year schedule. Supporting this effort is a series of Chief’s Reports that have been finalized, a necessary precursor to the U.S. Army Corps of Engineers advancing flood risk reduction and ecosystem restoration projects.

The Congressional Budget Office (CBO) scores bills based on their costs to the nation. The lower the score, the less costs, and the more likely that the act will receive floor time in light of the Majority’s PayGo (“pay as you go”) philosophy. The CBO has concluded that the Senate bill would cost $10.6 billion overall in its first decade. But because those are just authorizations, Congress would still need to appropriate funds. Continue Reading

Call for Projects Forthcoming from the Army Corps of Engineers

Call for ProjectsToday’s post features guest author Julie Minerva.

During an appearance before the House Transportation & Infrastructure Committee Major General Donald “Ed” Jackson, Deputy Commanding General – Civil and Emergency Operations, United States Army Corps of Engineers announced that a call for projects for the Section 7001 Report to Congress for 2017 is forthcoming. The Section 7001 Report, as authorized in the Water Resources Development Act of 2014, provides an opportunity for local project sponsors to request new project feasibility studies or modifications to existing Corps projects. It is anticipated that the May 19th publication of the Federal Register will include a formal solicitation for Section 7001 requests and interested parties will have 120-days to submit responses.

In the absence of earmarks, the Section 7001 Report has been the primary vehicle for recommending water resources projects for congressional approval in a Water Resources Development Act. So far the Corps has delivered two such reports to Congress, in 2015 and 2016 respectively, and by law the Corps is required to provide these reports on an annual basis. While these reports have not been without controversy, one could say that Congress and the Administration have stylistic differences about what should appear in the body of the report vs the appendix, they have provided local stakeholders with a seat at that table and it is an opportunity that should not be missed.

For reference and ideas on projects to be submitted, check out the 2016 report on the future of water resources development.

Author Julie Minerva is a Washington, DC based infrastructure advocate who specializes in Civil Works and all things related to the US Army Corps of Engineers. You can find her at: jminerva@carpiclay.com

“Changes Ahead at the US Army Corps” – and with all of the changes that are forthcoming this could be a series!

Today’s post features guest author Julie Minerva.

Starting on May 11th, the US Army Corps of Engineers will see a change of command in 19 Districts, Battalions and Centers. From Japan to Afghanistan, Honolulu to Buffalo the old guard will be making way for fresh leadership. While there is nothing out of the ordinary with this type of rotation, local sponsors with ongoing Corps needs should be actively looking for opportunities to introduce their organizations and their projects to these new-fangled decision makers. For those of you tuning in from Sacramento or Albuquerque it’s time to make some new friends as your rotations will be the first to take place on May 11th and May 12th respectively. View a full list of the changes ahead.

Author Julie Minerva is a Washington, DC based infrastructure advocate who specializes in Civil Works and all things related to the US Army Corps of Engineers. You can find her at: jminerva@carpiclay.com

Update on El Niño, and Some Recent Flood Control History in the Central Valley

Last fall we crossed our fingers that the predicted El Niño weather pattern would drench us just enough to alleviate California’s critical drought conditions, but not so much that the flood control system would be overwhelmed (even though, as I explained here, past El Niño patterns have not been associated with big flooding events).

The critical factors for past major floods have been how early in the year water falls (earlier means reservoirs fill up and there’s less room for additional rains) and whether there is significant rainfall in a short period of time.

So, did El Niño come through? Yes and no.

Yes, it came through, because we got a lot of rain and snow, at least compared to what we’ve received in the past four years of drought. It’s been the wettest year since the drought began in 2012. Our critical Northern California reservoirs (Shasta, Folsom and Oroville) were each over 100% of historical average levels as of April 7. The State Water Project Contractors, who receive water by contract with the Department of Water Resources, are expecting to get 45 percent of requested water for 2016 (that’s comparatively high based on the last few years of precipitation).

Our statewide snowpack has also fared well in the winter of 2016. As of April 1 it was 89 percent of average; skiers have rejoiced after a few dismal years.

But no, it didn’t come through, because our precipitation remains below average in both Northern and Southern California, and Southern California is particularly low. Reservoirs in the San Joaquin Valley have not recovered the way northern reservoirs have.

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NFIP Rates are Going Up on April 1… But Do Enough People Care for Congress to Change its Mind?

Flood Insurance. ProgramjpgPeople definitely care. But not enough people are likely to care to make a political issue out of it due to how the rate increases were designed. The National Flood Insurance Program (NFIP) rate increases called for by the last two acts of Congress are designed as slow and modest increases for the vast majority of folks holding policies. Indeed, this appears to be the reason Congress passed the Homeowner Flood Insurance Affordability Act of 2014 (HFIAA), in order to amend and soften the rate increases called for by the Biggert-Waters Flood Insurance Reform Act of 2012. During this current election year it takes a lot to get Congress focused on action, and the rate increases do not appear to fall on a large enough group to generate the noise that gets Congress’ attention. Added to that, the Republican Party is currently focused on demonstrating fiscal restraint, and rate increases designed to repay an approximately $20 billion deficit fit right into the current messaging.

I think that the following headline would have gotten the attention of people and politicians and possibly caused Congress to change its mind: “NFIP rates for homes to grow more than 20% a year!” However, that is only a true statement for non-primary residences located in AE and VE zones that were constructed before the first NFIP flood insurance rate map (FIRM) issued for the relevant region (so called “pre-FIRM” structures). A pretty small group of folks would be affected by this. Or perhaps a headline like: “25% annual rate increases by FEMA will apply to businesses!” But that is only a true statement for businesses located in AE and VE zones that were also constructed before the first NFIP flood insurance rate map issued for the relevant region. Again, a small group of folks to lobby Congress.

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New Chief of Engineers Nominated by President Obama

President Obama has signed and forwarded to the Senate the nomination of Major General Todd Semonite to be the 54th Chief of Engineers. The nomination will shortly appear on the Senate’s website. The hope is that MG Semonite will be confirmed before Lieutenant General Tom Bostick (the 53rd Chief of Engineers) plans to leave the position in May.

MG Semonite is currently the Deputy Commanding General, Combined Security Transition Command in Afghanistan supporting Operation Enduring Freedom. Prior to that he was the Deputy Commanding General for the United States Army Corps of Engineers. MG Semonite obtained his B.S. from the United States Military Academy and then his M.S. in Civil Engineering from the University of Vermont. He also has an M.A. in Military Science from the United States Army Command and General Staff College.

More information on MG Semonite is available here.

Tips for Surviving a Civil Works Review Board

Washtington DCToday’s post features guest author Julie Minerva, a Civil Works Review Board veteran who has been engaging with the US Army Corps of Engineers at the federal level for the better part of 15 years.

As part of the Corps SMART Planning Process, all feasibility studies must complete a formal presentation process called a Civil Works Review Board. While the CWRB lasts only a few hours, the in DC preparation involved lasts several days. Here’s how to not only survive, but thrive:

1. Be prepared to visit history
You’ll answer more questions about issues that were resolved years ago then Hilary Clinton has had to answer about her private email server. Be patient.

2. Brush off your power point skills
With input from Corps Headquarters, power points will be redrafted, reworked and refined in the 48 hours leading up to the main event. The same thing applies for your talking points.

3. Bring snacks
Once you’re in the building, you’re “in the building” so come armed with snacks and water. The nearby Bed Bath & Beyond in Chinatown offers a nice selection of salty and sweet individual sized options.

4. Engage congressional stakeholders
Having a Member of Congress make opening remarks sets a positive tone and puts an emphasis on importance of your project. Likewise congressional staff attendance reflects the support of the member.

5. Have a back up printing option
Avoid unnecessary stress by identifying someone on deck for a last minute color print jobs. Key documents include “the placemat”, power point, and letters of support.

6. Practice your Oscar award speech
Brush off you inner theatre major and deliver your remarks with passion, urgency, excitement and confidence. Vocal warm ups, jumping jacks, and the Superwoman power pose all help.

7. Embrace that this milestone will bring more work
As the saying goes, “No good deed goes unpunished,” approval by the CWRB is not the end of the SMART planning process. Public review and comment follows before a signed Chief’s Report is within reach.

8. Get ready for your close up
You will rehearse, rehearse and rehearse again. After all, practice makes perfect. Behind the scenes it will be hectic and chaotic, but when the curtain rises it will all come together.

9. Don’t plan on seeing the monuments at night
You’ll be working. But honestly it’s worth it. Instead plan a post CWRB group outing to a local watering hole to celebrate your victory.

10. Don’t expect a cell signal
“Can you hear me now?” There are too many theories to count, but the fact remains that many of the internal rooms within the Corps HQ building are dead zones.

11. Do your homework
CWRB board members will be briefed by HQ in advance, but in the months leading up to the main event it is a good investment of your time and resources to brief them from your local perspective. The same is true for the Office of the Assistant Secretary of the Army and the Office of Management and Budget.

12. Repeat after me: Build Strong Building Security
GAO runs a tight ship and you will need to be escorted at all times. That includes even trips to the first floor cafeteria. Also Corps staff traveling from district and division will not have the authority to serve as escorts. You will need an HQ contact.

Author Julie Minerva is a Civil Works Review Board veteran and has been engaging with the US Army Corps of Engineers at the federal level for the better part of 15 years. She credits her double major in Political Science & Dance for achieving strategic and effective results in the water and transportation infrastructure realm. You can find her at: jminerva@carpiclay.com

USACE Issues Draft Guidance on Federal Credit; Comments Due By September 28, 2015

A little more than a year after the passage of the Water Resources Reform and Develop Act (WRRDA), the U.S. Army Corps of Engineers (USACE) has issued the draft guidance required by section 1018. And, from a local perspective, the draft guidance is quite good and appears to reflect a softening on some crediting issues that have plagued locally constructed projects for nearly five years.


If we climbed into the “wayback” machine we would find that over the past decades Congress has passed a number of provisions that allowed non-Federal sponsors to do work in advance of Federal planning or construction and then treat those costs as a credit toward the non-Federal sponsor’s cost share on the related Federal project. One of the most popular provisions for this was Section 104 of the Water Resources Development Act of 1986. Section 104 was highly liberal in its ability to lock in potential credit, with very few limitations. Unfortunately for aggressive non-Federal sponsors, the Office of the Assistant Secretary of the Army (ASA) became concerned that as non-Federal sponsors were able to “lock in credit” for planning or construction activities, each of those investments made it harder and harder for USACE to ultimately recommend a project which didn’t align perfectly with the already-constructed and locally-performed work. In other words, USACE awarding credit was actually driving USACE decisions to be made later. As a result, the ASA decided that credit could no longer be issued under Section 104, and instead should be evaluated under Section 221 of the Flood Control Act of 1970 (as that section was amended by section 2003 of WRDA 2007).

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Will an El Niño Weather Pattern Lead to Flooding in California’s Central Valley?

If you have been reading major California newspapers over the past few weeks, you have seen a number of stories about a “monster” El Niño event headed our way this winter.  Most of those articles address whether such an event would end California’s four-year drought.  A small handful of them address what I consider a more interesting question: could record precipitation following a period of record drought result in major floods?

Note: I am not a climate scientist, hydrologist, or historian by trade; I’m a water and flood control attorney.  But I do know the Central Valley flood control system pretty well, and I am curious about whether there is really a connection between the El Niño phenomenon and the likelihood of flooding.

What is El Niño?

El Niño is a weather pattern characterized by unusually warm ocean temperatures in the Pacific, with weather consequences around the world including increased rainfall in the southern part of the United States.  You can get much more information on El Niño events here or here .

The Last Time We Had a Monster El Niño

Many articles discuss the 1997 El Niño event, because it was one of the strongest El Niño events in recorded history.  Indeed, that El Niño produced significant precipitation in California.  During the 1998 water year (which ran from October 1, 1997 to September 30, 1998), statewide precipitation was about 170% of the historic average.  (By comparison, during the 2014 water year the state received about 55% of historic average precipitation; and through July 1, 2015 the state has received just under 73% of historic average for the 2015 water year.) See the California Data Exchange Center for more detailed historic hydrologic data.

Did California Experience Major Flooding During the 1997 El Niño?

Also in 1997, California experienced one of the most significant flooding events in modern history.  At first glance there appears to be a connection between that flooding and the record El Niño conditions.  But as it turns out, they weren’t actually related.  The historic flooding in early January 1997 (which caused over $2 billion in damages, over 120,000 people evacuated from their homes, and more than 30 breaks on federal project levees) resulted from a three-day period during which 30 inches of rain fell over Northern California as part of a “pineapple express” storm event.  What’s more, reservoir levels were well above average coming into January 1997 after a wet December.  To add insult to injury, the early January event was followed by another significant storm in late January, when not all flood control facilities had recovered from the early January event.

The 1997 El Niño event didn’t actually develop until a few months later.

In fact, the other well-known significant flooding event in California’s recent history, in 1986, also was not associated with an El Niño year.  Flooding in 1986 also resulted from a “pineapple express” storm, which is typically warm with relatively high snow levels, and which is characterized by enormous amounts of precipitation over a short period (a few days), straining and in some cases overwhelming flood protection facilities.

El Niño events, by contrast, tend to be associated with colder storms with snow levels at average or even below average levels. What’s more, typical El Niño events usually bring wetter winters to Central and Southern California (but not always, which makes the actual effects of an El Niño event difficult to predict).

The Bottom Line

The bottom line is: whether the coming El Niño event leads to major flooding depends on a number of factors impossible to predict at this point, including:

  • How early in the water year rain falls.  Our major reservoirs are very low, in some cases at historically low levels, after four years of record drought conditions.  If fall and early winter rains fill them up, it is more likely that continued rains or large storms in early 2016 will overwhelm flood control facilities.
  • Whether there is significant rainfall in a short period of time.  These are the conditions that have led to major flooding in the Central Valley in the past, but these kinds of events are not typically associated with El Niño.

The best case scenario, of course, is that the El Niño event does materialize and fills up the State’s reservoirs (alleviating our drought situation) without overwhelming the flood control system (and causing a significant flood event).  Our fingers are crossed.

That Begs the Question(s)…

  1. Did the 1997 floods lead to changes in the flood protection system to protect against future pineapple express storms?
  2. What is the flood protection community doing to address future uncertainties related to water and flood control in the context of climate change?

Stay tuned for answers in future blog posts!


  1. California Data Exchange Center
  2. Flood Emergency Action Team Final Report, May 1997
  3. “Flood Warnings: Responding to California’s Flood Crisis,” California Department of Water Resources, January 2005
  4. “The California Winter of 1997-98: Status Report for Federal Emergency Management Agency,” Western Regional Climate Center, March 1998
  5. “The El Nino Winter of ’97 – ’98: National Climatic Data Center Technical Report No. 98-02,” National Oceanic and Atmospheric Administration, April 1998