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passage of the Water Resources Reform and Develop Act (WRRDA), the U.S. Army Corps of Engineers (USACE) has issued the draft guidance required by section 1018. And, from a local perspective, the draft guidance is quite good and appears to reflect a softening on some crediting issues that have plagued locally constructed projects for nearly five years.

Background

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).

I am thrilled to be heading to Jackson Hole, Wyoming this afternoon to attend the annual conference of the National Association of Flood and Stormwater Management Agencies (NAFSMA). Susan Gilson and the Board always do a great job of putting together a conference that brings together the leaders from Federal,…

The House Appropriations Committee has passed the fiscal year 2016 Energy and Water Appropriations bill this last week. That bill, which does not yet have the authority of law, includes the following content regarding the Federal Flood Risk Management Standard. If the bill passes the House, and then the Senate,…

May 6th is the deadline for comments to be submitted on the draft guidelines for the Federal Flood Risk Management Standard. While there have been further attempts at extending the comment period (see for example this letter from 33 members of the House of Representatives), it appears that the deadline will not be changing. Here are some of our current musing on what sorts of comments should be submitted. Please feel free to share these comments around, and to share your comments with us for inclusion in our final letter.

Dear _______:

The [agency or entity name] is pleased to provide comments on the draft Revised Guidelines for Implementing Executive Order 11988, Floodplain Management issued on January 28, 2015 (“Draft Guidelines”). We are a [describe agency or entity].

As a preliminary matter, we are very supportive of the stated goal which appears to underlie the Draft Guidelines and Executive Order 13690 (“EO 13690”): to more fully consider climate change in predicting flood risk and to ensure that this is considered in the context of Federal investments in infrastructure. Indeed, to know that climate change will almost certainly affect flood risk, and to not consider this in the context of federal investments would be foolhardy and could shorten the useful life of Federal infrastructure. But the question is not whether climate change should be considered. Rather, the questions are (1) how it should be considered, (2) whether the Draft Guidelines provide a clear, consistent, and predictable framework for managing the process within the Federal family, and (3) whether other areas have been accidently swept into the consideration of the Draft Guidelines. It is our belief that the current Draft Guidelines do a disservice to the Federal Government by not providing a clear, consistent, and predictable framework and by accidently sweeping other areas into coverage of the Draft Guidelines. We therefore recommend that changes be made to the Draft Guidelines and that they then be released for a further comment period.

This letter is organized into two sections, consisting of general comments that are thematic in nature, and then specific comments on specific sections of the Draft Guidelines.

There is significant uncertainty as to the intent and effect of the new Federal Flood Risk Management Standard, released as part of the Obama Administration’s issuance of Executive Order 13690, issued in January to amend Executive Order 11988. Based on the chatter in the flood risk management community, the…

The Federal Emergency Management Agency (FEMA) has announced the first four listening sessions for the newly proposed draft guidance to implement the Federal Flood Risk Management Standard (FFRMS) arising out of President Obama’s recent amendment of Executive Order 11988.  As we noted in previous blog entries, the President has amended…

Eight Republican Senators have issued a letter to President Obama questioning the legality of the President’s newly issued Executive Order (EO) amending Executive Order 11988 issued by President Carter in 1997.  The letter was signed by Senators Cochran (Mississippi), Vitter (Louisiana), Cornyn (Texas), Isakson (Georgia), Wicker (Mississippi), Blunt (Missouri), Boozeman (Arkansas), and Cassidy (Louisiana) on February 5, 2015.

Discussion
While some commentators have begun questioning whether the new EO may exceed the President’s authority, the Republican Senators have instead focused on a procedural issue, noting that Public Law 113-235 (providing for FY2015 appropriations) requires the Executive Branch to solicit and consider input from governors, mayors, and other stakeholders before issuing a new Federal Flood Risk Management Standard (FFRMS). The Senators then allege that this act required solicitation and consultation that did not occur.

President Obama recently  issued an Executive Order “Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input.” The Order sets forth President Obama’s administration’s floodplain management policy and significantly amends Executive Order 11988 issued by President Carter.  Downey Brand has created a redline for your reference.

Background
In 1977, then President Carter issued Executive Order No. 11988 (“EO 11988” or “Order”) in order to avoid to the extent possible the long and short term adverse impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect support of floodplain development wherever there is a practicable alternative.  While Federal enforcement of this Order has been inconsistent over the years, recently Federal agencies have begun to apply the Order to Federal permitting, studies, decisions, and funding.

The U.S. Army Corps of Engineers (USACE) issued what can only be described as the mother of all Requests for Proposal (RFP). Under section 7001 of the Water Resources Reform and Development Act of 2014 the USACE is to seek proposals for feasibility studies for, or modifications to existing Federal water resources development projects. USACE is to then compile the information into an annual report to be issued in February of each year.

The U.S. Army Corps of Engineers (USACE) issued a new engineering circular (EC 1165-2-216) to provide policy and guidance for processing requests to alter USACE civil works projects pursuant to 33 U.S.C. section 408. This new circular collects existing guidance from several informal documents, codifies USACE practice from some USACE Districts that process many 408 requests, and expands the guidance to cover other objectives beyond flood risk reduction, such as water supply, hydroelectric, and ecosystem restoration. Section 408 (33 U.S.C. section) is a decades old provision of Federal law that prohibits a non-Federal interest from altering a Federally authorized water resources development project without advance permission from the Secretary of the Army. That authority has been delegated to the Assistant Secretary of the Army, then to the Chief of Engineers, and then to the Director of Civil Works.  This new Engineering Circular provides the rules associated with that delegation.