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BUILDING RESILIENCE WORKSHOP II


March 17-19, 2011 New Orleans, LA Edward A. Thomas, Esq. edwathomas@aol.com 617-515-3849 1

Natural Hazard Mi-ga-on Associa-on www.nhma.info

Good Day!
I appear today represen-ng:

The Natural Hazard Mi-ga-on Associa-on This is not and cannot be legal advice This is a statement of general principles of ethics, law and policy

Natural Hazard Mi-ga-on Associa-on www.nhma.info

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 Incen-ves, Reward Good

Planning, Safe Building, and Safe Reconstruc-on 3

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To Set the Stage For Our Discussion


Lets discuss some basics of Law


In the Law-especially criminal law- AQorneys oRen

seek to iden-fy someone else to take the blame


For increased ood damages that Someone Else is

oRen

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Mother Nature

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Does Nature Cause Disasters?


Dr. Gilbert White, the late, great, founder of the

interna-onally recognized Natural Hazards Center, headquartered in Colorado, stated the facts:
Floods are Acts of Nature; But Flood Losses Are Largely Acts of Man

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I Hope All of You Will Agree


Among the Most Clear Lessons of The Horric Floods

of this Decade:

There Is No Possibility of A Sustainable Economy

Without Safe Loca-ons for Business and Industry to Occupy


We Need Safe Housing for Employees to Work at

Businesses and Industry to Have an Economy at All

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Trends in Flood Damages


Flood losses and reported ood heights

are increasing

Demographic trends indicate great future

challenges

Ini-al Risk No Warning/Evacua-on Plan- or A

Risk! All Shareholders Can Also Contribute to Increased


Residual Risk Can Be Increased
Poorly Developed and Exercised Plan Fill in oodplain or Wildres Increases Flows Lack of Awareness of Flood Hazard-Lack of Flood, Business Interrup-on, DIC Insurance Cri-cal Facili-es Not Protected From Flooding Increased and more Costly Development Levees Not Properly Designed/Maintained

Vastly Increased Residual Risk RISK


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Safe Development Is Aordable


The American Ins-tutes for Research has conducted a

detailed study on the cost of oodproong and eleva-on That study supports the idea that eleva-on and oodproong costs add very small sums and have a signicant societal payback The Mul-hazard Mi-ga-on Council, a group which includes private industry representa-ves, reports that hazard mi-ga-on has a proven 4-1 payback 11

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Choice We Have as a Society is Rather Between: The


1. Well planned development that protects people and property, our environment, and our precious Water Resources while reducing the poten-al for li-ga-on; or 2. Some current prac-ces that are known to harm people, property, and natural oodplain func-ons- and may lead to li-ga-on 12 and other challenges

The Choice of Development or No Development is a False Choice!

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Why Are Governments Not Ac-ng To Prevent Harmful Development?


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

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Reason #1 For Insucient Standards: Economics and Externality


When One Group Pays Maintenance or

Replacement of Something Yet Dierent Person or Group Uses That Same Something, We ORen Have Problems Disaster Assistance Is An Classic Example of Externality Who Pays For Disaster Assistance? Who Benets? 15

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Who Pays For Disaster Assistance?


Costs of ooding are usually largely borne by: a) The Federal and Some-mes 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 Publica-on "Patchwork Quilt (Located at: h*p://www.oods.org/PDF/Post_Disaster_ Reconstruc>on_Patchwork_Quilt_ET.pdf b) By Disaster Vic-ms Themselves 16

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Cui Bono? (Who Benets?)


From Unwise or Improper Floodplain Development- a) Developers?

b) Communi-es? c) State Government? d) Mortgage Companies? e) The Occupants of Floodplains?

Possibly in the short-term, but denitely NOT in the long- term


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Why Should Government Do Something About This?

Fundamental Duty Protect The Present Preserve A Communitys Future

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Why Else Should Government Do Something About This?


In a Word:

Liability
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Floods and Li-ga-on


When Someone Is Allegedly Damaged by the

Ac-ons of Others Who Pays?

This is a Fundamental Ques-on of Law.

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Three Ways to Support Reconstruc-on Following Disaster Damage


1. Self Help: Loans, Savings, Charity, Neighbors 2. Insurance: Disaster Relief is a Combina-on of

Social Insurance and Self Help 3. Li-ga-on


The preferred alterna-ve is To have NO DAMAGE Due to Land Use and Hazard Mi-ga-on

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Reason #2 Why Safer Standards Are Not Implemented: Concerns About A Taking

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Taking Lawsuit Results: Regula-ons clearly based on Hazard Preven-on and fairly applied to all: successfully held to be a Taking almost none! Many, many cases where communi-es and landowners held liable for harming others
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Examples of Situations Where Governments Have Been Held Liable


Construc-on of a Road Blocks Drainage Stormwater System Increases Flows Structure Blocks Watercourse Bridge Without Adequate Opening Grading Land Increases Runo Flood Control Structure Causes Damage Filling Wetland Causes Damage Issuing Permits for Development Which Causes Harm

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to a Third Party

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Hazard Based Regulation And The Constitution


Hazard Based Regula-on Generally Sustained

Against Cons-tu-onal Challenges

Goal of Protec-ng the Public Accorded

ENORMOUS DEFERENCE by the Courts

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Why Should Government Do Something About This?


Fundamental Duty Protect The Present Preserve A Communitys Future

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Is There A Government Right to Prevent Harm?


Does Government Have a Duty to Prevent

Injurious Consequences from Floods?

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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 28
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No Adverse Impact Floodplain Management


What is No Adverse Impact Floodplain

(Such as Higher Standards for Floodplain Management)

Management? ASFPM denes it as an Approach that ensures the ac/on of any property owner, public or private, does not adversely impact the property and rights of others 29
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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.

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What Is The Result Of Implemen-ng Higher Standards?


PROTECTION OF THE PROPERTY RIGHTS OF ALL Legally Speaking, Preven-on of Harm is Treated

Quite Dierently Than Making the Community a BeQer Place. Preven-on of Harm to the Public Is Accorded Enormous Deference by the Courts 31

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Higher Standards:
Are consistent with the concept of sustainable

development Provide a pragma-c method for regula-on Make sense on a local and regional basis May be rewarded by FEMAs Community Ra-ng System, especially under the new CRS Manual Can reduce the poten-al for li-ga-on against a community 32

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A Conserva-ve, Property Rights View


The Cato Ins-tute Indicates that Compensa-on is

Not Due When:

regula/on prohibits wrongful uses, no compensa/on is required.

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Hazard Based Regulation And The Constitution


Hazard based regula-on is generally sustained

against Cons-tu-onal challenges

Goal of protec-ng the public accorded

ENORMOUS DEFERENCE by the Courts

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Summary
Higher Regulatory Standards Are: A) Legal

B) Equitable C) Prac-cal D) Defensible in Court E) Supported by good economic analysis F) The very basis of sustainability G) Rewarded under the Community Ra-ng System

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Take Away Messages For Today Preven-on


We Throw Money At Problems ARer They

Occur We Can Pay A LiQle Now; Or Society Pays Lots Later The Legal System Is Ready To Help Society Pay Later
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Some Messages to Floodplain & Emergency Managers From My Nego-a-ons Training


Floodplain & Emergency Mangers Have to Stop

Being The Abominable No People!!

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Find A Yes
We Are For Development We Are For Safe Place For Our Ci-zens To Live We Must Consider Others When We Develop Channel Any Emo-on Into Ac-on

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Steps to Uncover the Yes


Never Start With NO! We Are Against NO Start With What We Are For We Want Your Development! We Need The Tax Revenue

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If Needed: Develop A Well Thought Out-Clear NO!


Know Your Stu Develop a Plan B Build a Coali-on-Partnerships Who Shares Your Interests? Take Away Their Ability To Launch A Surprise AQack Consider The Worst Case Consider The Worst Case If You Have To Live With A

Yes, When You Should Have Said No The Mirror Test

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If It Is A Good Project...
Yes.


Yes.

Yes!

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Take Away Message


Responsible For Community Development? Many Areas Can Flood
Uninsured Vic-ms Will Likely Sue-If They Can Find

Someone to Blame Fair Harm Preven-on Regula-on Helps Everyone

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Take Away Message


Community Leaders Have Responsibility for

Public Safety and Need To Be Aware:


Many Areas Can Flood

Uninsured Vic-ms Will Likely Sue- and will try to

nd someone to blame Fair Harm Preven-on Regula-ons Help Everyone

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Message For All Involved In Community Development


The Fundamental Rules of Development

Ar-culated, By Law, Envision Housing and Development Which Is:


Decent Safe Sanitary Aordable

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Flooded Development Fails That Vision!


Housing And Development Which Flood Are: Indecent
Unsafe Unsanitary Unaordable- by the Flood Vic-ms, By Their

Community, By The State, and By Our Na-on.

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Summary
Fundamentally Our Society Must Choose Either:

BeQer Standards to Protect Resources and People or Standards Which Inevitably Will Result in Destruc-on and Li-ga-on

The higher regula-ons which this Workshop is promo-ng are a step in the Right Direc-on 46

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Questions and Answers

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