Today’s post features guest author Julie Minerva, a Civil Works Review Board veteran who has been engaging with the US Army Corps of Engineers at the federal level for the better part of 15 years.
As part of the Corps SMART Planning Process, all feasibility studies must complete a formal
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passage of the Water Resources Reform and Develop Act (WRRDA), the U.S. Army Corps of Engineers (USACE) has issued the draft guidance required by section 1018. And, from a local perspective, the draft guidance is quite good and appears to reflect a softening on some crediting issues that have plagued locally constructed projects for nearly five years.
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).
If you have been reading major California newspapers over the past few weeks, you have seen a number of stories about a “monster” El Niño event headed our way this winter. Most of those articles address whether such an event would end California’s four-year drought. A small handful of them
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,
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.
Most flood control projects require environmental review triggered by a federal, state, or local agency permit or decision. For example, federal agencies must consider the environmental impacts of their proposed actions under the National Environmental Policy Act (NEPA), and many states have their own “mini-NEPA” laws that require state and
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