DAY 19: MICROSOFT ACCESS – CHAPTER 3 CONTD. Aliya Farheen [email protected] March 17, 2015.
March 17-19, March 17-19, 2011 New Orleans, LA
description
Transcript of March 17-19, March 17-19, 2011 New Orleans, LA
Natural Hazard Mitigation Associationwww.nhma.info
1
March 17-19, March 17-19, 2011 New Orleans, LA
Edward A. Thomas, Esq.
BUILDING RESILIENCE WORKSHOP II
Natural Hazard Mitigation Associationwww.nhma.info
Good Day! I appear today representing: The Natural Hazard Mitigation Association
This is not and cannot be legal adviceThis is a statement of general principles of ethics, law and policy
2
Natural Hazard Mitigation Associationwww.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
Natural Hazard Mitigation Associationwww.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 ReconstructionThe Concepts Which This Workshop Is Considering Are Very Much a Step in The Right Direction
Natural Hazard Mitigation Associationwww.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…
Natural Hazard Mitigation Associationwww.nhma.info
6 6
Mother Nature
Natural Hazard Mitigation Associationwww.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”
Natural Hazard Mitigation Associationwww.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
USACE Slide courtesy of Pete Rabbon
All Shareholders Can Also Contribute to Increased Risk!
Residual Risk Can Be IncreasedRI
SK
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
10
Natural Hazard Mitigation Associationwww.nhma.info
11 11
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…
Natural Hazard Mitigation Associationwww.nhma.info
12
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.
Natural Hazard Mitigation Associationwww.nhma.info
13 13
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
Natural Hazard Mitigation Associationwww.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
14
Serious Public Safety Issues
Deeper and Higher Water Results?
Natural Hazard Mitigation Associationwww.nhma.info
16 16
A Solution
Go Beyond NFIP Minimum Standards No Adverse Impact-CRS Type:
Development decision-making Planning Emergency Preparedness
Natural Hazard Mitigation Associationwww.nhma.info
17 17
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.
Natural Hazard Mitigation Associationwww.nhma.info
18 18
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
Natural Hazard Mitigation Associationwww.nhma.info
19 19
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
Natural Hazard Mitigation Associationwww.nhma.info
20 20
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
Natural Hazard Mitigation Associationwww.nhma.info
21
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?
Natural Hazard Mitigation Associationwww.nhma.info
Natural Hazard Mitigation Associationwww.nhma.info
23
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
Natural Hazard Mitigation Associationwww.nhma.info
24
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
Natural Hazard Mitigation Associationwww.nhma.info
25 25
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
Natural Hazard Mitigation Associationwww.nhma.info
26 26
Why Should Government Do Something About This?
Fundamental Duty Protect The Present Preserve A Community’s Future
Natural Hazard Mitigation Associationwww.nhma.info
27 27
Why Else Should Government Do Something About This?
In a Word:
Liability
Natural Hazard Mitigation Associationwww.nhma.info
28 28
Litigation for Claimed Harm Is Easier Now Than In Times Past
Forensic Hydrologists
Forensic Hydraulic Engineers
Natural Hazard Mitigation Associationwww.nhma.info
29
Three Ways to Support Reconstruction Following Disaster Damage
1. Self Help: Loans, Savings, Charity, Neighbors2. Insurance: Disaster Relief is a Combination of
Social Insurance and Self Help3. Litigation
The preferred alternative is…To have NO DAMAGE
Due to Land Use and Hazard Mitigation
Natural Hazard Mitigation Associationwww.nhma.info
30
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
Natural Hazard Mitigation Associationwww.nhma.info
31 31
Reason #2 Why Safer Standards Are Not Implemented:
Concerns About A “Taking”
Natural Hazard Mitigation Associationwww.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 32 32
Natural Hazard Mitigation Associationwww.nhma.info
33 33
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
Natural Hazard Mitigation Associationwww.nhma.info
34 34
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)
Natural Hazard Mitigation Associationwww.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.”
Natural Hazard Mitigation Associationwww.nhma.info
36
Might All 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
Natural Hazard Mitigation Associationwww.nhma.info
37
Natural Hazard Mitigation Associationwww.nhma.info
38 38
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
Natural Hazard Mitigation Associationwww.nhma.info
39
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
Natural Hazard Mitigation Associationwww.nhma.info
40 40
Take Away Messages For TodayPrevention 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
Natural Hazard Mitigation Associationwww.nhma.info
41 41
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
Natural Hazard Mitigation Associationwww.nhma.info
42 42
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
Natural Hazard Mitigation Associationwww.nhma.info
43 43
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.
Natural Hazard Mitigation Associationwww.nhma.info
44
Questions and Answers