Federal: Wise Use of the Floodplain

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.

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.