A lawsuit brought in 2013 by the Southeast Louisiana Flood Protection Authority-East has been dismissed by a federal judge who found that the Authority had failed to support its claims against dozens of oil, gas and pipeline companies. The Authority sued the companies for damages, arguing that their oil and gas exploration activities had damaged wetland areas, making the coast more vulnerable to flooding during hurricane events such as Hurricane Katrina in 2005.

Background

The Southeast Louisiana Flood Protection Authority-East (Authority) is one of two levee authorities that service the metropolitan New Orleans area. The authorities are responsible for protecting residents, businesses and properties from flooding, including adopting rules and regulations for carrying into effect a comprehensive levee system (which includes levees, floodwalls, drainage structures and floodgates).

In July 2013, the Authority filed suit against 97 oil, gas and pipeline companies on the theory that their exploratory activities over time have damaged wetlands, which in turn has left New Orleans vulnerable to catastrophic flooding. Specifically, the suit alleges that the dredging of canals by the oil and gas companies allowed for destruction of wetlands that protect the New Orleans area from flood damages, and that those damages complicated and increased the cost of management of the levee system. 

The Federal Emergency Management Agency (FEMA) has announced the first four listening sessions for the newly proposed draft guidance to implement the Federal Flood Risk Management Standard (FFRMS) arising out of President Obama’s recent amendment of Executive Order 11988.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.

When it comes to federal legislative actions that impact flood control, the passage of water infrastructure legislation was undoubtedly the most significant action in 2014. After months of difficult negotiations in Congress, the House and Senate passed the Water Resources Reform and Development Act (WRRDA) and the President signed the bill into law in late spring of 2014. The legislation streamlines environmental review, increases flexibility for non-Federal sponsors, and authorizes key projects, most notably flood risk management projects.

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.

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