1 No Adverse Impact Association of State Floodplain Managers A Common Sense Strategy for Floodplain...

1

No Adverse Impact

Association of State Floodplain

Managers

A Common Sense Strategy for Floodplain

Management

2

No Adverse Impact

Association of State Floodplain

Managers

A Common Sense Strategy for Floodplain

Management

3

ASFPM MissionMitigate the losses, costs, and human suffering caused by flooding.

and

Protect the natural and beneficial functions of floodplains.

4

Association of State Floodplain ManagersChapters & Other State FPM Associations

11,000 Members

27 Chapters

Several State Associations & Pending Chapters

WI

MN

IL

MI NY

IN OH

VA

NC

SC

FL

MSAR

LATX

OKNM

AZ

CO

MOFMA

NORFMA MT

UT NE

KS

GA

KY

NJ

MD

RI

AL

5

Trends in Flood Damages

$6 billion annuallyFour-fold increase from early 1900s

Per capita damages increased by more than a factor of 2.5 in the previous century in real dollar terms

And then there was Katrina…

6

$2.2

$2.9

$2.4

$3.4

$2.2

$4.9

$3.3

$5.6

$25

$2.0

0 5 10 15 20 25 30

1910s

1920s

1930s

1940s

1950s

1960s

1970s

1980s

1990s

2000s

Billions (adjusted to 1999 dollars)

7

Florida Katrina $ 0.2 BLouisiana Katrina $ 28.0 BMississippi Katrina $ 10.6 BAlabama Katrina $ 1.2 BTexas Rita $ 2.3 BLouisiana Rita $ 2.2 BFlorida Wilma $ 2.5 B

2005 Hurricane Damage Costs

= $47 Billion

8

What is Influencing the Trend?

Increased Property at Risk

Current Policy: Promotes intensification in

risk areas Ignores changing conditions Ignores adverse impacts to

existing properties Undervalues natural floodplain

functions

9

NFIP Evaluation - AIRNFIP Limitations

Few Restricted Areas Seaward of mean high tide Floodways

No Requirement to Protect Natural Functions

No Limits on Siting Critical Facilities Fill in Floodplain Allowed and

Facilitated

10

No Adverse Impact Defined

Activities that could adversely impact flood damage to another property or community will be allowed only to the extent that the impacts are mitigated or have been accounted for within an adopted community-based plan.

11

No Adverse Impact ExplainedNAI is a concept/policy/strategy

that broadens one's focus from the built environment to include how changes to the built environment potentially impact other properties.NAI broadens property rights by protecting the property rights of those that would be adversely impacted by the actions of others.

12

No Adverse ImpactFloodplain Management

NAI Regulations make the “takings issue” a non-issue

Detailed Legal Paper in notebook

13

Landowner Does Not Have All Rights Under

The Law No “Right” to be a Nuisance No “Right to Violate the Property

Rights of Others No Right to Trespass No Right to be Negligent No Right to Violate Laws of

Reasonable Surface Water Use; or Riparian Laws

No Right to Violate “Public Trust”

14

Governments May Be Held Liable if…

Construction of a Road Blocks Drainage

Stormwater System Increases Flows

Structure Blocks Watercourse

Bridge Built Without Adequate Opening

15

Government Liability (cont.)…

Grading Land Increases Runoff Flood Control Structure Causes

Damage Filling Wetland Causes Damage Issuing Permits for

Development that Causes Harm to a Third Party

16

NAI Benefits

Helps ensure the actions of any community or property owner do not adversely impact others/coastal resources

Incorporates multi-objective-management (MOM) and watershed planning principles

17

NAI Benefits (cont.)

Benefits of NAI to your community: Reduce your flood losses and costs over time

Reduce likelihood of your actions increasing flood damage to others

Reduce challenges and lawsuits

18

NAI Benefits (cont.)

Benefits of NAI to your community: Reduce flood insurance premiums through the Community Rating System

Incorporate multiple objectives Protect natural resources and values of floodplains

19

No Adverse Impact (NAI)

Principle developed

NAI Toolkit Legal Aspects of

NAI Coastal NAI

funded by NOAA

20

Why Coastal NAI is needed…

53% of US Population lives w/in 50 miles of coast

71% of annual disaster losses in coastal areas

Population movement to coast continuing

85% of coastal residents have never experienced a major hurricane

21

How To Follow the No Adverse Impact Principle?

Identify ALL the Impacts of a Proposed Development

Notify Impacted Persons of the Impact of Any Proposed Development

Mitigate Impacts

22

No Adverse Impact

OVERVIEW OF COASTAL NO ADVERSE

IMPACT (CNAI) STRATEGIES

23

Community Activities that can Incorporate NAI:

Hazard Identification Planning Regulations and Standards Mitigation Actions Infrastructure Emergency Services Education and Outreach

24

Mitigate while not transferring the problem elsewhere

Non-structural mitigation on individual

structures:elevationacquisitionflood proofing

Structural---often cause adverse impacts to others

levees, dams, channels

Mitigation Actions

25

Consider impacts of maintenance, repair

and new constructionConsider individual and

cumulativeimpactsMitigate infrastructure while not transferring the problem elsewhere

Infrastructure

26

Disaster response should consider

cumulative impacts Sand bags--levees, etc.

Plan flood fighting to avoid adverse

impactsEmergency actions should not increase flooding on others

Emergency Services

27

Target specific audiences

Modify existing outreach efforts

Your message should be: Know your hazards

Understand how your actions could adversely impact others

Identify how community members can protect themselves and others

Education and Outreach

28

Community Activities That Will Be Discussed In Today’s

Workshop:Hazard Identification & Mapping

PlanningRegulations and Standards

29

Current Approaches Create Future Disasters

If we continue to encourage at-risk development and ignore the impact to others, can we accept the consequences…

… and, are you willing to pay for it?

30

31

32

No Adverse Impact Background The Coastal Zone and

Coastal Hazards NAI Strategies “7 Building Blocks” Institutional Framework

33

Public Trust DoctrineBy the law of nature these things are common toall mankind, the air, running water, the sea andconsequently the shores of the sea… Theseashore extends as far as the greatest winterflood runs up. - Institutes of Justinian

535 CE

34

Federal, State and Local Roles

The Constitution of the United States of America

Amendment X (1791): The powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reserved to the States Respectively, or to the people

35

Legal Origins

US Constitution States retain ownership of the

lands beneath navigable waters Federal government retains

supreme, but not exclusive, control over

navigation

36

Public Trust Doctrine Colonies followed English common

law Recognized public rights in

navigable waters & their shores Public uses

Access for commerce & transportation

Environmental protectionRecreation

37

38

Waters/Lands held in Public Trust

Tidewaters to their farthest reachesTidelandsNavigable-in-fact watersPermanently submerged landsAdjacent wetlands (varies greatly among States)

39

Public Trust Boundaries

NO

AA

Coa

stal

Ser

vice

s C

ente

r

40

Arnold vs. Mundy (1821)

New Jersey Supreme Court - Arnold v. Mundy, 6 N.J.L. 1, 1-2 (Sup. Ct. 1821)

First major articulation of the public trust doctrine in America

41

Arnold vs. Mundy (1821)

Waters and land under water (i.e., “tidal lands”) belong to all the people of New Jersey for purposes of “passing and re-passing, navigation, fishing, fowling, sustenance, and all other uses of the water and its products”.

“Ancillary use” of dry sand

42

Illinois Central

Illinois Central RR v. Illinois (1892) State had abdicated its

responsibility to preserve the waters for public use

43

44

45

THE PUBLIC TRUST DOCTRINE IN NEW JERSEY

1984–Matthews v. Bay Head Improvement Ass’n

Issue: “…[w]hether, ancillary to the public’s right to enjoy the tidal lands, the public has a right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body.”

46

THE PUBLIC TRUST DOCTRINE IN NEW JERSEY

1984– Matthews v. Bay Head Improvement Ass’n:

Two aspects: (i) “right to cross privately owned dry sand beaches in order to gain access to the foreshore”; (ii) “right to sunbathe and generally enjoy recreational activities” as enjoyed by the public in municipal beaches.

47

Trust rights in New Jersey include dry sand area…

48

The Matthews Factors:

2. Availability of public dry sand areas

3. Extent of public demand

4. Prior usage of upland by owner

1. “Location of dry sand in relation to the foreshore”

49

NAI Strategies

Hazard Identification & Mapping

Planning

Regulations and Development Standards

50

Coastal Hazards in the U.S.

Severe coastal storms Storm surge Waves Tidal flooding Relative sea-level change Subsidence Shoreline change

(erosion/accretion) Tsunami

51

FEMA National Flood Insurance Program

(NFIP) National Flood Insurance Act of 1968

and the Flood Disaster Protection Act of 1973

Provides insurance and disaster relief to communities who agree and adhere to the program guidelines

Coastal inundation and wave impacts are quantitatively evaluated and mapped, presented in the form of Flood Insurance Rate Maps

52

FEMA Coastal Flood Studies

Storm surge analysis, with wave setup (regional)

Wave analyses along coastal transects (local) Storm-induced erosion Wave heights Wave runup Consideration of coastal structures

(e.g., seawalls, revetments, levees)

Mapping - Flood zones and BFEs

53

Flood Insurance Rate Map (FIRM)

54

Hazard IdentificationBasic/Better Strategies

Examine flood risk for critical facilities, and relocate beyond 0.2%-annual-chance (500-year) floodplain

Purchase flood insurance for community property in (or near) the floodplain

Document High Water Marks from significant storms to aid in FIS/FIRM updates and to build a case for policies exceeding the minimum NFIP requirements

55

Hazard IdentificationNAI Strategies

Higher Mapping Standards

Natural & Beneficial Functions

Information Sharing

56

Hazard Identification - NAIHigher Mapping Standards

– Hazards Not on FIRM

Historic Flood Inundation Coastal A Zones Tsunami Inundation (Historic or

Predicted) Unstable Bluffs/Mud Slides/Debris

Flow Levee & Dam Failure Inundation Overwash and Inlet/Breach Hazards

57

Hazard Identification - NAIHigher Mapping Standards

- Future Conditions

Sea-Level Rise Chronic Erosion Rates/Areas Increased Storm Intensity –

add factor of safety onto BFEs Future Land Use in Upstream

Watersheds

58

Sea Level Rise

Source: NOAA

8518750 The Battery, New YorkTrend is 2.77 millimeters/year (0.91

feet/century).

59

Sea Level Rise (SLR) ESTIMATESInformation Sharing

2.5 – 3 m (EPA 1983) 0.45 – 1.2 m (Titus 1995) 0.3 m (Church and White 2006) 0.18 – 0.59 m (IPCC 2007) 0.5 – 1.4 m (Rahmstorf 2007)

60

Sea-Level Rise Impacts

USGS Coastal Vulnerability Index

(CVI)

http://pubs.usgs.gov/of/1999/of99-593/

61

Identify Sensitive Resources - NAINatural & Beneficial Functions

Environmentally Sensitive Areas

Wetlands Barrier Islands and Beaches Cheniers Critical Habitat for Threatened &

Endangered Species Submerged Aquatic Vegetation Shellfish Reefs and Beds

62

Hazard Identification - NAIInformation Sharing

Make Community Data Available Limit Fee and/or Licensing

Requirements Host Website for Downloading Data Develop Disaster Contingency for

Data Access

63

64

65

66

67

NAI Strategies

Hazard Identification & Mapping

Planning

Regulations and Development Standards

68

PlanningBasic Strategies

Prepare comprehensive land use plans Identify hazard areas Identify appropriate land uses

Develop special subject plans to supplement comprehensive plans Economic development plan Habitat protection plan Watershed management plan

Adopt zoning or other ordinances to enforce plans

69

PlanningBetter Strategies – Risk Analysis

and Management

Identify flood-risk areas on plans and restrict development

Adopt low-density zoning in floodplains Use specialized tools (ex: GIS, HAZUS, etc.) Prepare FPM, storm water management

plans to supplement comprehensive plans Prepare multi-hazard mitigation plans

70

Planning Better Strategies

Floodplain Management Plans Identify flood prone/repetitive loss areas Evaluate various flood damage reduction

measures Recommend actions for the community Identify mapping needs

Multi-Hazard Management Plans Identify all natural hazard areas Evaluate various hazard mitigation

measures Recommend actions for the community

71

PlanningNAI Strategies

Include watershed, MOM and sustainable development

principles in land use planning Consider current and future development Coordinate floodplain planning with other

planning activities (economic development, housing, recreation, ecosystem restoration, water quality, etc.)

Identify long-term implications of alternative land uses

Promote “sustainable” development

72

PlanningNAI Strategies

Sustainable development is “…meeting the needs of the present without compromising the ability of future

generations to meet their own needs.”

(ASFPM, NAI Toolkit: Source The 1987 Brundtland Report to the United

Nations)

73

Special Area Management Plans

(SAMPs)Coastal Zone Management Act

(CZMA) SAMPs defined as resource

management plans and implementation programs to improve the management of discreet geographical areas.

CZMA encourages States to prepare SAMPs

74

Good Examples of SAMPs are…

Ashley River Corridor, South Carolina; Local Waterfront

Development, NY;and Port of Pascagoula,

Mississippi

http://coastalmanagement.noaa.gov/special.html

75

NAI Strategies

Hazard Identification & Mapping

Planning

Regulations and Development Standards

76

Regulation & Development StandardsBasic Strategies

Adopt separate FPM ordinance with minimum FPM

regulations

NFIP estimates that buildings built to minimum standards suffer 70% less than unprotected buildings

Flood damage can still occur with minimum standards

BFEs subject to change, particularly as development occurs in watershed

77

Regulation & Development Standards

Basic StrategiesExample minimum FPM regulations

All development in 100-yr floodplain must have a permit

Development in floodway must not cause increase in base flood levels

New residential buildings in riverine floodplains must have top of lowest floor elevated above BFE

New non-residential buildings in riverine floodplains must have top of lowest floor elevated to the BFE or flood proofed 1 foot above BFE

Substantially improved buildings (costs exceeding 50% of market value) are considered “new” buildings

78

Regulation & Development Standards

Better StrategiesAdopt NFIP regulations with

higherstandards

Receive Community Rating System Credit for higher standards and lower insurance premiums for your community

State Model Ordinances

79

Regulation & Development Standards

Better Strategies Require additional height requirement

above BFE (“freeboard”)

Strengthen “substantially improved” building requirements

Adopt International Building Codes which include flood reduction standards

Adopt subdivision standards that require structures to be built outside of hazard areas

80

Regulation & Development Standards

Better Strategies Utilize “green infrastructure” Adopt storm water

regulations Adopt higher health and

safety standards

81

82

Regulation & Development Standards

NAI StrategiesPreserve beneficial natural floodplain

functions Adopt setback standards to establish

minimum distances from river channels or shorelines

Adopt buffer zone requirements between sensitive and developed areas

Adopt proactive development requirements

Implement stream restoration programs

83

To Summarize…ASFPM No Adverse Impact

strategies: Hazard identification Regulations and development

standards Planning Mitigation Infrastructure Emergency services Education and outreach

84

Strategies grouped by: Basic Better No Adverse Impact

Communities are encouraged to go beyond basic strategies

Summary (cont.)…

www.floods.org/NoAdverseImpact/NAI_Toolkit_2003.pdfwww.floods.org/NoAdverseImpact/whitepaper.asp