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Scott L. Shapiro

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Scott Shapiro is known for his expertise in flood protection improvement projects throughout California’s Central Valley. He is helping clients with more than a billion dollars in projects in California's Central Valley and issues involving the Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USACE) throughout the Western United States.

With a special focus on massive flood protection improvement projects, Scott advises clients through regulatory, contractual, financing, and legislative challenges. Acting as general or special counsel, he regularly interacts with senior management at USACE (Headquarters, South Pacific Division, and Sacramento District), the California Department of Water Resources, and the Central Valley Flood Protection Board. He was named to the National Section 408 Task Force and has been invited to give testimony to the National Academies. Scott was instrumental in helping the first regional flood improvement agency that took a basin threatened by flood risk from less than 30-year level of protection to a level of protection approaching 200-year.

Having worked with FEMA on issues of floodplain mapping and levee accreditation for many years, Scott has developed collaborative environments in which he fosters win-win solutions for his clients. He is also currently serving as the lead counsel on a flood insurance rate map (FIRM) appeal and has drafted Federal legislation to modify the National Flood Insurance Program (NFIP) several times.

Scott is known throughout the region for his extensive litigation experience focusing on cases arising from levee failures. He has litigated levee failures resulting from underseepage, failed encroachments, and rodent burrows as well as briefing levee overtopping cases at the appellate level. Scott is one of the few attorneys with experience litigating flood cases on behalf of plaintiffs as well as defendant government entities.

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Today’s guest-post is from Laura Morgan-Kessler of Van Scoyoc Associates.

It is almost impossible to turn on the news or open your twitter feed today without seeing words like gridlock, partisan, or contentious used to describe the current climate in Washington, D.C. The constant negativity surrounding the events and activities in our nation’s capital has led many to feel disheartened with the political process. However, as has often been the case in Washington, D.C., the times of greatest uncertainly provide the greatest opportunity. A strong federal advocacy effort is exactly what is needed to take advantage of these opportunities.

On a recent visit to Washington, D.C. to work on client issues, I attended any number of meetings where we discussed Federal appropriations.  But before we get to an observation or two, here is a recap on the process for how Congress can choose to invest money into a flood risk management project with the U.S. Army Corps of Engineers:

The National Flood Insurance Program (NFIP) will expire at the end of the month. For anyone that has read the newspaper lately, this is a lousy time for the program to expire with two hurricanes bearing down on the Eastern seaboard, and Texas’ largest city recovering from a 100-year storm. But politically, it is a wonderful time for the program to expire. First, there are suddenly many members of Congress motivated to ensure it doesn’t expire. Secondly, the risk of flood, and the shortfalls of the program, are fresh in our minds as we consider changes that might be made to the program as part of the reauthorization. While what will happen is still akin to a drinking game with people placing bets, here’s what we currently know.

Despite reticence in Washington, D.C. about the term “climate change” (see yesterday’s blog post on this topic), there is plenty of discussion in the media and in scientific circles about whether intense, off-the-charts storms like Hurricane Harvey are the result of, or are associated with, climate change. Unfortunately, we are unlikely to see a widely agreed-upon answer to that question (at least in political circles) in the near future. The good news is that the flood management community doesn’t need to have a precise answer to that question in order to consider how to deal with the uncertainty associated with changes in climate that scientists are predicting over the next few decades.

The democratic members of the Senate Environment & Public Works (EPW) Committee took the initiative to lay out their priorities for a future infrastructure package. Those priorities, totaling over $500 billion, are included in a July 21, 2017 EPW Minority Letter on Infrastructure to Chairman Barrasso (WY).  They include only the types of infrastructure which are under EPW’s jurisdiction, but the Senators do make clear their desire to see a comprehensive infrastructure package that would extend well beyond EPW’s purview.  As well the letter specifies the need for direct federal investments rather than relying on private financing.  Interestingly, within the list of priorities is a proposal for $25 billion for resiliency for extreme weather events.

All eyes are appropriately on Houston right now, where record rainfall has led to catastrophic flooding, loss of life, inestimable damages, and years if not decades of recovery and re-building. Around the country, many communities are now sitting up and paying more attention to that question, “what if that happened here?” Here in Sacramento, where Hurricane Katrina served as a stark warning in 2005 of what can happen when a large storm event overwhelms a flood protection system, the State and local flood protection and maintenance agencies have been hard at work bringing urban levees up to higher standards of protection, consistent with the State’s Central Valley Flood Protection Plan. That Plan was required by Legislation passed in 2007 and paid for by a bond initiative passed by California voters in 2006 – both a clear response to the damage and loss of life in New Orleans due to Hurricane Katrina.

August 15, 2017 was a busy day for the Trump Administration. While interacting with the press and other politicians regarding the protests and counter-protests in Charlottesville, Virginia, the White House was also issuing an Executive Order with potentially far-reaching effects on flood management.

Guidance

As many in the industry have learned recently, the FY 17 budget only included approximately $3 million nationwide for processing 33 U.S.C. Section 408 review. This is the Section under which the U.S. Army Corps of Engineers (USACE) claims jurisdiction to review and approve any alterations or encroachments to Federally authorized water resources facilities such as levees and channels. As a result, in the last few weeks the funds were all expended and, even after a $500,000 reprogramming, the USACE has only been able to fund a limited number of 408 reviews nationwide. In order to address this issue, and keep review moving, USACE just issued new guidance for a simpler form of funding USACE’s review.

Process

One of the best ways to learn about the direction of national flood risk management is to attend the annual conference of the National Association of Flood and Stormwater Management Agencies (NAFSMA). The NAFSMA conference is an amazing meeting of decision-makers and thought-leaders from around the country, with important topics discussed at a plenary session-only conference. And one of my favorite sessions is where the Director of Civil Works for the U.S. Army Corps of Engineers has a chance to present. Following are some high-level thoughts shared by Mr. Dalton on his June 21 Memorandum that we highlighted yesterday: