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.
Things have appeared relatively quiet at Oroville Dam for the past couple of weeks, but a lot has been happening. DWR has been clearing debris from the diversion pool and has successfully started up releases through the Hyatt Powerplant, but the drawdown had some negative impacts downstream. Here is our latest update.
As always, if you find this blog helpful or interesting, please feel free to share it with others who may be interested. And if you would like to be updated when we post a new entry, please add your email on the right or below where it says “stay connected.”
Here’s our Saturday morning update on flood control issues in the Central Valley and beyond. Things have been quieter this week at Oroville Dam, but there’s plenty to report on from around the state.
As always, if you find this blog helpful or interesting, please feel free to share it with others who may be interested. And if you would like to be updated when we post a new entry, please add your email on the right or below where it says “stay connected.”
This is a follow-up to our blog post last week, “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.”
Many of the proposed amendments to the regulations focus on the details for the implementation methodologies as well as the inter-relationship between them. For example, what should one do when there are contradictory scientific approaches? What should one do when the best available science indicates a flood elevation that is lower than would be used under the freeboard value approach? Is it practical to use the .2 percentage approach when only 18% of FEMA’s maps contain data on the .2% event? Based on these and other questions, on page 35 of the proposed amendment package FEMA proposes to make the freeboard value approach the standard approach for all events that are not critical actions, and to make the freeboard value approach the chosen approach for critical actions unless the agency finds that the climate-informed science approach results in a higher elevation.
IntroductionExecutive 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.
A recent Texas Supreme Court case on inverse condemnation has opened the door for a group of homeowners to continue in a lawsuit against their county and flood control district over property damage that was allegedly a known possibility when the government entities approved the housing development. These cases are rare, so it’s an unusual opportunity to take a look at the concept of “takings” in a flood control context.
What is inverse condemnation?
There’s a fundamental concept in Federal and State Constitutions that the taking or damaging of private property for a public use must be compensated. When private property is taken for public use without compensation, the property owner can file an inverse condemnation action to force the government to pay for the damage. The policy underlying inverse condemnation claims is that a private individual should not be forced to bear a disproportionate share of the costs of a public project.
Can flooding lead to inverse condemnation claims?
Inverse condemnation cases arise in the context of flood control where a government action results in the flooding of private property.
In California, for example, current case-law suggests that an inverse condemnation action will be successful only if the deliberate design and construction of a project or public improvement causes physical injury to real property. In other words, the project as planned must be the cause of the damage rather than faulty construction or maintenance of a project. This high bar for success in an inverse condemnation case makes sense; if public agencies could be sued for just negligent maintenance, they may not choose to embark on projects that protect the public.
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.
Since 2008 the Natomas area in the City of Sacramento has been under an effective moratorium on new development due to insufficient flood protection. The area is preparing to re-start development once the City receives a letter from the Federal Emergency Management Agency (FEMA) that lifts a flood hazard designation
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