A Disaster in the Making

Proposed federal legislation (Section 311 in HR 1471) weakens FEMA’s ability to discourage development in high-risk flood zones and undermines the Endangered Species Act.

Image courtesy of FEMA

Earlier this month, Congress passed HR 1471, the Federal Emergency Management Agency (FEMA) Disaster Assistance Reform Act of 2015 with a provision that actually does the opposite of what the bill should do — improve public safety. A last minute amendment included Section 311 to restrict FEMA’s existing ability to discourage development in high-risk flood areas as part of the Nation Flood Insurance Program (NFIP) — which is exactly what the program is supposed to do. The ill-conceived provision is an attempt to short-circuit the on-going efforts between FEMA and the National Marine Fisheries Service (NMFS) to ensure FEMA’s actions protect endangered species. As a result of Section 311, HR 1471 undermines public safety and cost-saving provisions that are the core purpose and benefit of the NFIP itself, which provides subsidized flood insurance rates to property owners in exchange for adopting sensible floodplain management practices and standards. Making matters worse, this legislative end run also weakens the Endangered Species Act (ESA). The bill is now in the Senate, where legislators should strike Section 311 and preserve FEMA’s ability to advance the nation’s interest in reducing the risk and cost of flooding.

Section 311 undermines public safety and increases taxpayer costs. The bill’s sponsor, Rep. Lou Barletta testified that the FEMA Disaster Assistance Reform Act has two primary goals “to help save lives and to save taxpayer money.” Section 311 would undermine both. A primary objective of the NFIP is to:

Image courtesy of FEMA

…encourage State and local governments to make appropriate land use adjustments to constrict the development of land which is exposed to flood damage and minimize damage caused by flood losses … [and] guide the development of proposed future construction, where practicable, away from locations which are threatened by flood hazards(42 US Code Sec 4001).

Section 311 would eliminate existing FEMA authorities to incentivize local communities to engage in cost-saving and flood-risk reducing floodplain management through their participation in the NFIP. Furthermore, the section would delay desperately needed actions to improve public safety, such as updating federal flood risk maps.

Section 311 substitutes political judgment for a legally required scientific process. The primary purpose of Section 311 is to undermine an ongoing consultation between FEMA and NMFS regarding how implementation of the NFIP affects endangered salmon and orca populations, as required by the ESA. NMFS has drafted recommended actions that would improve the management of high-risk floodplain areas to protect listed species and help reduce the risk of flooding. FEMA and NMFS are in the process of discussing those recommendations and finalizing the consultation process. Therefore, legislative interference is unnecessary and inappropriate.

Section 311 weakens the floodplain management benefits of the NFIP. Promoting sound floodplain development in hazardous flood-prone areas is the central purpose of the NFIP and FEMA’s authorities. The NFIP incentivizes communities to guide future development out of flood-prone areas to not only reduce the number of properties at risk of flooding but to also preserve the ability of existing flood system to convey flood waters. However, implementing the program consistent with its intent, the floodplain management provisions of the NFIP also provide other public benefits. Preserving undeveloped floodplain areas where flood waters can be safely managed helps increase the recharge of groundwater aquifers that are essential to regional water supplies. Furthermore, discouraging development in flood-prone areas helps to protect water quality and preserve habitat for fish and wildlife. Section 311 misguidedly strips away essential FEMA authorities that guide floodplain development. Doing so robs the public of the broadest benefits of the NFIP they deserve and fund with their tax dollars.

Image courtesy of Bureau of Land Management

Section 311 gravely undermines the Endangered Species Act. Section 7 of the ESA requires federal agencies taking actions that “may affect” threatened or endangered species or designated critical habitat to consult with either the Fish and Wildlife Service or NMFS regarding the effects of the action. The purpose of consultation is to avoid harming listed species, both directly and through impacts to their habitat. Section 311 would fundamentally alter the ESA by redefining which federal actions are subject to Section 7 consultations. The provision would exclude the environmental impacts of the NFIP from consideration under the ESA, using the excuse that it is a voluntary program. The notion that the federal government should not have to consider the impacts of a program that affects more than 5 million properties and land uses in high-risk areas in more than 22,000 communities across the entire country is without sound reason.

Section 311 of HR 1471 is a disaster in the making. The Senate should act quickly to strike this provision and preserve FEMA’s ability to improve public safety, reduce the cost of flooding and avoid impacts to endangered species.