1. Natural Hazard Mitigation Association www.nhma.info 1 CWCB Proposed Floodplain Rules and Regulations Expert Testimony for Rulemaking Hearing November 15, 2010 Edward A. Thomas, Esq. edwathomas@aol.com 617-515-3849

2. Natural Hazard Mitigation Association www.nhma.info Good Day!  I appear today representing: The Natural Hazard Mitigation Association The Natural Hazards Center of the University of Colorado The Association of State Floodplain Managers This is not and cannot be legal advice This is a statement of general principles of ethics, law and policy 2

3. Natural Hazard Mitigation Association www.nhma.info The Choice of Development or No Development is a False Choice! The Choice We Have as a Society is Rather Between: 1. Well planned development that protects people and property, our environment, and our precious Water Resources while reducing the potential for litigation; or 2. Some current practices that are known to harm people, property, and natural floodplain functions- … and may lead to litigation and other challenges 3

4. Natural Hazard Mitigation Association www.nhma.info 4 Key Themes  We Need To Think Broadly To Solve Our Serious Problems  We Must Stop Making Things Worse  Right Now We Have A System Which Rewards Dangerous Behavior  We Need To Remove Bad Incentives, Reward Good Planning, Safe Building, and Safe Reconstruction The Regulations Which This Board Is Considering Are Very Much a Step in The Right Direction

5. Natural Hazard Mitigation Association www.nhma.info 5 5 To Set the Stage For Our Discussion  Lets discuss some basics of Law  In the Law-especially criminal law- Attorneys often seek to identify someone else to take the blame  For increased flood damages that “Someone Else” is often…

6. Natural Hazard Mitigation Association www.nhma.info 6 6 Mother Nature

7. Natural Hazard Mitigation Association www.nhma.info 7 7 Does Nature Cause Disasters?  Dr. Gilbert White, the late, great, founder of the internationally recognized Natural Hazards Center, headquartered in Colorado, stated the facts: “Floods are Acts of Nature; But Flood Losses Are Largely Acts of Man”

8. Natural Hazard Mitigation Association www.nhma.info 8 8 I Hope All of You Will Agree  Among the Most Clear Lessons of The Horrific Floods of this Decade:  There Is No Possibility of A Sustainable Economy Without Safe Locations for Business and Industry to Occupy  We Need Safe Housing for Employees to Work at Businesses and Industry – to Have an Economy at All

9. Natural Hazard Mitigation Association www.nhma.info 9 9 Trends in Flood Damages  Flood losses and reported flood heights are increasing  Demographic trends indicate great future challenges

10. Natural Hazard Mitigation Association www.nhma.info 10 Demographic Projection: Colorado Population in 2050 Colorado's population is expected to nearly double by 2050. In 2008, approximately 5 million people resided in the state. By 2050, Colorado's population is projected to be between 8.7 and 10.3 million people, with the majority residing in the Arkansas, South Platte and Metro Basins. However, the western slope of Colorado will see the greatest percentage increase in population during the next 40 years Citation: A 2050 VISION FOR COLORADO'S WATER SUPPLY FUTURE Authors: Nicole Rowan, CDM, Susan Morea, CDM, Eric Hecox, Colorado Water Conservation Board Colorado's population is expected to nearly double by 2050. Where Will These Folks Wish to Live?

11. Natural Hazard Mitigation Association www.nhma.info 11  $6 billion annually  Four-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  In the 2000’s Think About Nashville, Atlanta, the Red River of the North ASFPM Analysis of Trends in Flood Damages

12. USACE Slide courtesy of Pete Rabbon

13. All Shareholders Can Also Contribute to Increased Risk! Residual Risk Can Be Increased RISK RISK Increase Factors Vastly Increased Residual Risk Initial Risk Critical Facilities Not Protected From Flooding Levees Not Properly Designed/Maintained Lack of Awareness of Flood Hazard-Lack of Flood, Business Interruption, DIC Insurance Increased and more Costly Development No Warning/Evacuation Plan- or A Poorly Developed and Exercised Plan Upstream Development or Wildfires Increases Flows 13

14. Natural Hazard Mitigation Association www.nhma.info 14 Central Message Even If We Perfectly Implement Current National Minimum Standards, Damages Will Continue or Increase. Remember, we have done a number of positive things, both non-structural and structural, but… We’ll discuss why that is…

15. Natural Hazard Mitigation Association www.nhma.info 15 But There Is Hope!  New and exciting APA and ABA awareness and initiatives  Improved FEMA Flood Mapping Program-Risk MAP  The formation of the National Hazard Mitigation Collaborative Alliance  Formation of the Natural Hazard Mitigation Association  USACE Silver Jackets Program  The higher standards being considered by this Board and other communities and states.

16. Natural Hazard Mitigation Association www.nhma.info 16 Paul Farmer: Executive Director of the American Planning Association June 2009  “APA's Hazards Planning Research Center is currently preparing FEMA-funded best practice materials showing how hazard-mitigation and adaptation plans can be integrated into comprehensive planning efforts at all scales — from the neighborhood to the region.”  This Document Has Just Been Released and Is Available  Excellent in My Opinion

17. Natural Hazard Mitigation Association www.nhma.info American Bar Association Resolutions 107 A-G Adopted by the ABA House of Delegates January 2009 17 coverages Summary of Resolution 107 E “The following recommendations of the Financial Services Round Table Blue Ribbon Commission on Megacatastrophes are highly desirable loss mitigation suggestions: State of the art building codes Cost-effective retrofitting Land use policies that discourage construction posing high risk to personal safety or property loss. Property tax credits to encourage retrofitting These and related elements of loss mitigation are designed to ultimately bring to market affordable insurance policies with broadened coverages.”

18. Natural Hazard Mitigation Association www.nhma.info 18 Why Are Floods Getting Worse? Fundamental Misunderstandings: Where is the Floodplain?

19. Natural Hazard Mitigation Association www.nhma.info 19 Special Flood Hazard Area If you prevent floodplain fill, you keep existing development safe.

20. Natural Hazard Mitigation Association www.nhma.info 20 Large areas of the floodplain are filled and developed. Fill

21. Larger Special Flood Hazard Area After Filling

22. Natural Hazard Mitigation Association www.nhma.info 22 With Improper Development Flood Heights May Increase Dramatically More Than One Foot  No Adverse Impact: A New Direction in Floodplain Management Policy By Larry Larson PE, CFM and Doug Plasencia PE, CFM  Published in Natural Hazards Review November 2001, IAAN 1527-6988  Depending on the Watershed, Improper Development Might Cause a 3-5 or more Foot Increase in flood Heights

23. Natural Hazard Mitigation Association www.nhma.info Safe Development Is Affordable  The American Institutes for Research has conducted a detailed study on the cost of floodproofing and elevation  That study supports the idea that elevation and floodproofing costs add very small sums and have a significant societal payback  The Multihazard Mitigation Council, a group which includes private industry representatives, reports that hazard mitigation has a proven 4-1 payback 23

24. Serious Public Safety Issues Deeper and Higher Water Results?

25. Natural Hazard Mitigation Association www.nhma.info 25 A Solution  Go Beyond NFIP Minimum Standards  No Adverse Impact-CRS Type:  Development decision-making  Planning  Emergency Preparedness

26. Natural Hazard Mitigation Association www.nhma.info 26 Why Go Beyond the Current Minimum Standards? Flood damages are continuing and/or increasing unnecessarily! Current approaches deal primarily with how to build in a floodplain vs. how to minimize future damages

27. Natural Hazard Mitigation Association www.nhma.info 27 No Adverse Impact Floodplain Management (Such as Higher Standards for Floodplain Management)  What is “No Adverse Impact” Floodplain Management”?  ASFPM defines it as “…an Approach that ensures the action of any property owner, public or private, does not adversely impact the property and rights of others”

28. Natural Hazard Mitigation Association www.nhma.info 28 No Adverse Impact Explained NAI 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.

29. Natural Hazard Mitigation Association www.nhma.info 29 What Is The Result Of Implementing Higher Standards?  PROTECTION OF THE PROPERTY RIGHTS OF ALL  Legally Speaking, Prevention of Harm is Treated Quite Differently Than Making the Community a Better Place.  Prevention of Harm to the Public Is Accorded Enormous Deference by the Courts

30. Natural Hazard Mitigation Association www.nhma.info 30 Higher Standards:  Are consistent with the concept of sustainable development  Provide a pragmatic method for regulation  Make sense on a local and regional basis  May be rewarded by FEMA’s Community Rating System, especially under the new CRS Manual  Can reduce the potential for litigation against a community

31. Natural Hazard Mitigation Association www.nhma.info 31 No Adverse Impact Floodplain Management  New concept?  No, it is a modern statement of an Ancient Legal Maxim  “Sic utere tuo ut alienum non laedas”  Use your property so you do not harm others  Detailed Legal Papers by Jon Kusler and Ed Thomas available at: www.floods.org  More information in ASFPM’s A Toolkit on Common Sense Floodplain Management at: www.floods.org

32. Natural Hazard Mitigation Association www.nhma.info 32 According To the Writings of One of Our Greatest Moral Philosophers - Mohandas K. Gandhi:  “Sic Utere Tuo Ut Alienum Non Laedas”  That Is, In English: Use Your Property So You Do Not Harm Others is:  “A Grand Doctrine Of Life And The Basis Of (Loving Relationships) Between Neighbors”

33. Natural Hazard Mitigation Association www.nhma.info 33 Who Else Likes Sic Utere…?  Colorado Supreme Court  The police power is an attribute of sovereignty and exists without any reservation in the constitution, being founded upon the duty of the state to protect its citizens and provide for the safety and good order of society. * * * It is founded largely on the maxim sic utere tuo, ut alienum non laedas." People v. Hupp, 53 Colo. 80, 83 (Colo. 1912) People v. Hupp, 53 Colo. 80, 83 (Colo. 1912)

34. Natural Hazard Mitigation Association www.nhma.info 34  NOAA Just Completed A Study Which Surveyed Planners As To Impediments To Safe Development. Two Major Reasons Cited:  Fear of the “Taking Issue”  Economic Pressure Why Are Some Governments Not Acting To Reduce Harmful Development?

35. Natural Hazard Mitigation Association www.nhma.info 35  When One Group Pays Maintenance or Replacement of Something Yet Different Person or Group Uses That Same Something, We Often Have Problems  Disaster Assistance Is An Classic Example of Externality  Who Pays For Disaster Assistance?  Who Benefits? Reason #1 For Insufficient Standards: Economics and Externality

36. Natural Hazard Mitigation Association www.nhma.info 36 Who Pays For Disaster Assistance?  Costs of flooding are usually largely borne by: a) The Federal and Sometimes the State Taxpayer Through IRS Casualty Losses, SBA Loans, Disaster CDBG Funds, and the Whole Panoply of Federal and Private Disaster Relief Described in the Ed Thomas and Sarah Bowen Publication "Patchwork Quilt” (Located at: http://www.floods.org/PDF/Post_Disaster_ Reconstruction_Patchwork_Quilt_ET.pdf b) By Disaster Victims Themselves

37. Natural Hazard Mitigation Association www.nhma.info 37 Cui Bono? (Who Benefits?)…  From Unwise or Improper Floodplain Development- a)Developers? b) Communities? c) State Government? d) Mortgage Companies? e) The Occupants of Floodplains? Possibly in the short-term, but definitely NOT in the long- term

38. Natural Hazard Mitigation Association www.nhma.info 38 Why Should Government Do Something About This?  Fundamental Duty  Protect The Present  Preserve A Community’s Future

39. Natural Hazard Mitigation Association www.nhma.info 39 Why Else Should Government Do Something About This?  In a Word: Liability

40. Natural Hazard Mitigation Association www.nhma.info 40 Litigation for Claimed Harm Is Easier Now Than In Times Past  Forensic Hydrologists  Forensic Hydraulic Engineers

41. Natural Hazard Mitigation Association www.nhma.info 41 Three Ways to Support Reconstruction Following Disaster Damage 1. Self Help: Loans, Savings, Charity, Neighbors 2. Insurance: Disaster Relief is a Combination of Social Insurance and Self Help 3. Litigation The preferred alternative is… To have NO DAMAGE Due to Land Use and Hazard Mitigation

42. Natural Hazard Mitigation Association www.nhma.info 42 Lincoln, Nebraska Flooded Homes May Cost City Millions City Held Liable – Damages Still To Be Determined Photo: Lincoln Star Journal

43. Natural Hazard Mitigation Association www.nhma.info 43

44. Natural Hazard Mitigation Association www.nhma.info 44 Situations Where Governments Have Been Held Liable  Construction of a Road Blocks Drainage  Stormwater System Increases Flows  Structure Blocks Watercourse  Bridge Without Adequate Opening  Grading Land Increases Runoff  Flood Control Structure Causes Damage  Filling Wetland Causes Damage  Issuing Permits for Development Which Causes Harm to a Third Party

45. Natural Hazard Mitigation Association www.nhma.info Short Legal Summary from Colorado  City owed a duty to landowner not to interfere with natural flow of river, either by plan of improvement adopted, or by a failure to maintain it such that flood burden on land was greater than if channel were left in natural state.  Denver v. Pilo, Supreme Court of Colorado, 102 Colo. 326; 79 P.2d 270 (1938) Denver v. Pilo 45

46. Natural Hazard Mitigation Association www.nhma.info 46 How About Immunity?  Where revised off-ramp caused flooding…under the Colorado Governmental Immunity Act, county was required to exercise reasonable care to correct condition….  Larry H. Miller Corp.-Denver v. Bd. of County Comm'rs, Court of Appeals No. 02CA0545, COURT OF APPEALS OF COLORADO, DIVISION FOUR, 77 P.3d 870 (2003)  And-  “…city's storm drainage system flooding plaintiff's adjacent property constituted continuing trespass….”  Docheff v. City of Broomfield, 623 P.2d 69 (Colo. App. 1980)

47. Natural Hazard Mitigation Association www.nhma.info 47 Reason #2 Why Safer Standards Are Not Implemented: Concerns About A “Taking”

48. Natural Hazard Mitigation Association www.nhma.info Increase in Cases Involving Land Use  There has been a huge increase in Taking Issue Cases, and related controversies involving development  Thousands of cases reviewed by Jon Kusler, me and others  Common thread? Courts have modified Common Law to require an Increased Standard of Care as the state of the art of Hazard Management has improved  Government is vastly more likely to be sued for undertaking activity, or permitting others to take action which causes harm than it is for strong, fair regulation 48

49. Natural Hazard Mitigation Association www.nhma.info 49 Taking Lawsuit Results:  Regulations clearly based on Hazard Prevention and fairly applied to all: successfully held to be a Taking – almost none!  Many, many cases where communities and landowners held liable for harming others

50. Natural Hazard Mitigation Association www.nhma.info 50 Can Government Adopt Higher Standards Than FEMA Minimums?  FEMA Regulations Encourage Adoption of Higher Standards-”… any floodplain management regulations adopted by a State or a community which are more restrictive than (the FEMA Regulations) are encouraged and shall take precedence.” 44CFR section 60.1(d). (emphasis added)

51. Natural Hazard Mitigation Association www.nhma.info A Conservative, Property Rights View  The Cato Institute Indicates that Compensation is Not Due When: “… regulation prohibits wrongful uses, no compensation is required.”

52. Natural Hazard Mitigation Association www.nhma.info 52 Other Contributing Factors:  Think about the following scenarios-  Future Conditions Hydrology (increased hydrographs)  Debris blockage (models assumes no blockage)  Wildfires (exacerbated flows from burned vegetation)  Technical assumptions and other uncertainties

53. Natural Hazard Mitigation Association www.nhma.info 53 Might Colorado Communities Wish To Consider Even Higher Standards? Consider: A) Uncertainties in flood elevations-50% Confidence B) ASFPM No Adverse Impact Paper on flood height increases due to future watershed development C) Consequences if a factory, water treatment plant or other critical facility is flooded D) Consequences of a Levee overtopping E) 50% Chance That 1% Flood will be exceeded within 70 years according to Bulletin 17 B of the WRC F) Changes in flood heights and velocities due to factors such as upstream wildfires and mud slides/mudflow H) Climate Variability

54. Natural Hazard Mitigation Association www.nhma.info 54

55. Natural Hazard Mitigation Association www.nhma.info 55 Hazard Based Regulation And The Constitution  Hazard based regulation is generally sustained against Constitutional challenges  Goal of protecting the public accorded ENORMOUS DEFERENCE by the Courts

56. Natural Hazard Mitigation Association www.nhma.info 56 Summary  Higher Regulatory Standards Are: A) Legal B) Equitable C) Practical D) Defensible in Court E) Supported by good economic analysis F) The very basis of sustainability G) Rewarded under the Community Rating System

57. Natural Hazard Mitigation Association www.nhma.info 57 Take Away Messages For Today Prevention  We Throw Money At Problems After They Occur  We Can Pay A Little Now; Or Society Pays Lots Later  The Legal System Is Ready To Help Society Pay Later

58. Natural Hazard Mitigation Association www.nhma.info 58 Take Away Message  Community Leaders Have Responsibility for Public Safety and Need To Be Aware:  Many Areas Can Flood  Uninsured Victims Will Likely Sue- and will try to find someone to blame  Fair Harm Prevention Regulations Help Everyone

59. Natural Hazard Mitigation Association www.nhma.info 59 Message For All Involved In Community Development  The Fundamental Rules of Development Articulated, By Law, Envision Housing and Development Which Is:  Decent  Safe  Sanitary  Affordable

60. Natural Hazard Mitigation Association www.nhma.info 60 Flooded Development Fails That Vision!  Housing And Development Which Flood Are:  Indecent  Unsafe  Unsanitary  Unaffordable- by the Flood Victims, By Their Community, By The State, and By Our Nation.

61. Natural Hazard Mitigation Association www.nhma.info 61 Questions and Answers