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Will revised floodplain rules put your project underwater?

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Ten years after Katrina devastated New Orleans, floodplain management is again in the forefront.

flooded street

Since 1980, flood damage in the United States has cost more than $260 billion, according to FEMA. Hurricanes, a common cause of floods, have potential not only for torrential rain but the dangerous and costly phenomenon of storm surges.

The National Weather Service defines storm surges as an abnormal rise of water generated by a storm. At their worst – such as in Katrina – surges can reach almost 30 feet.

Of concern are rising populations in areas that might be affected. The National Weather Service reports that population in Gulf Coast areas has increased 32 percent since 1990 and in Atlantic-side counties, the increase is 17 percent.

The problem is that much of the land is less than 10 feet above sea level so is prone to flooding. In addition to buildings, roads, ports and rail lines are all subject to devastating floods in those areas.

In an effort to mitigate losses due to floods, Congress passed the National Flood Insurance Act in 1968 so homes in coastal and other flood-prone areas had coverage specifically for those events. In 1973, the purchase of flood insurance became mandatory for these homeowners, affecting about 20,000 communities nationally. This practical measure has helped cover disaster costs, but the government decided to take another step to proactively prevent floods.

As a result, a 1977 executive order required federal agencies to take action to mitigate losses and impacts if federally funded activities occur within a 100-year floodplain, deemed as 1 percent chance of flooding in any given year. Federal funding for projects triggers a review by the Federal Emergency Management Agency (FEMA) of any proposed developments in 100-year floodplains and can have a major impact on the cost and scope of the project.

Not satisfied with the provisions of the 1977 order, another executive order was issued in February 2015 that dramatically increased the scope of the previous rules. For new or rebuilt structures using federal funds to be considered “resilient,” one of the following approaches must be used to establish the flood hazard area:

  • Using the most current methods to determine current and future flood hazard
  • Adding two or three feet in elevation to the 100-year floodplain
  • Using the 500-year floodplain

Although the 500-year floodplain has less than .02 percent chance of flooding annually, the inclusion of that measure greatly expands the geographic area that will be impacted by floodplain rules. This has major impacts on the cost of design, engineering and construction, as well as adding to the time and complexity of the approval process.

Industry associations are opposed to this change, with the National Association of Homebuilders (NAHB) charging that it was, “taken without any congressional oversight or input from state and local governments, and lacks any supporting economic analysis, scientific data or mapping.”

Since the order gives a broad definition of scope – property affected by “any federal action” – the concern is how far will it reach and when it will be applied.

A major area of concern is housing, since many projects, especially for low-income residents, use federal housing finance programs. Deeming the properties to be in flood plains and therefore subject to flood insurance will increase costs for these homeowners.

The National Waterways Conference, with a mission to effect common sense policies and programs while recognizing the public value of water resources, is also opposed to the new order and how it was implemented.

The nonprofit organization supports a rider currently appearing in several 2016 bipartisan bills that would stall the implementation of the rule. While realizing the value of prudent floodplain management, both NAHB and NWC agree that this rule is unwieldy, cumbersome and contradictory, thus creating a negative impact on local land use and the construction industry, as well as the public.

Another recent rule expanding jurisdiction under the Clean Water Act, the so-called Waters of the U.S., is being challenged in court by numerous states and by five bills passed in both the Senate and the House.

The new rule expands the definition of regulated waterways to include ditches, isolated ponds and mudflats. This action was also opposed for its sweeping oversight as well as lack of public input or analysis regarding its impacts on stakeholders. It remains to be seen whether the floodplain order will also end up in court.