Living with water in a climate-changed world: will federal flood policy sink or swim?

• Author: Tarlock, A. Dan

1. INTRODUCTION II. CLIMATE RESILIENCE REFORM A. Executive Action B. Federal Agency Implementation III. EXISTING FEDERAL LAW RELATED TO FLOOD MANAGEMENT A. The Army Corps of Engineers' Flood Control Efforts 1. Funding Woes 2. Failing Hard Structures B. The National Flood Insurance Act 1. Outdated and Inaccurate Maps 2. Insufficient Land-Use Requirements C. Coastal Management Law and Flood Control 1. Coastal Zone Management Act 2. Coastal Barrier Resources Act D. Disaster and Housing Law and Flood Control 1. Hazard Mitigation Planning 2. Community Development Block Grants IV. WILL CLIMATE RESILIENCE REFORMS IMPROVE FEDERAL FLOOD MANAGEMENT? A. Limits of Climate Resilience Executive Actions B. Climate Resilience Reforms and Federal Law 1. Positive Impacts on Federal La w/Policy a. Leadership b. Agency Action c. Legislative Baby Steps (and Falls) 2. Obstacles for Implementing Climate Reforms into Federal Flood Policy a. Fiscal Issues b. Lack of Coordination c. Weak Enforcement V. WILL THE CLIMATE REFORMS IMPROVE LOCAL FLOOD MANAGEMENT? A. Local, Adaptive Planning B. Adaptation Tools and Obstacles 1. Local Power to Limit Floodplain Development 2. State Response to Local Limits on Floodplain Development 3. The Supreme Court Takings Jurisprudence's Influence on Flood Plain Regulation C. Federal Climate Reforms Can Boost Local Government Resilience Efforts VI. CONCLUSION I. INTRODUCTION

   In the face of rising sea levels and increasingly frequent extreme weather events, (1) the Obama Administration has started to promote climate change adaptation. Because Congress has failed to pass any climate change mitigation or adaptation legislation, (2) the Administration has created two task forces, issued several executive orders, and pushed federal agencies to develop adaptation plans. (3)

   The President's actions reflect the reality that "[m]ore than 50 percent of Americans live in coastal counties, where key infrastructure and evacuation routes are increasingly vulnerable to impacts like higher sea levels, storm surges, and flooding." (4) Inland urban settlement areas near rivers and lakes also face increased flood risks caused by more frequent extreme rain events. (5) People are drawn to live alongside or near water but tend to discount the risks inherent in this choice. This moral hazard behavior is no longer sustainable. Losses from worldwide flood events nearly doubled in the ten years from 2000 to 2009 compared with the prior decade. (6)

   Will the Obama Administration's climate resilience reforms provide the appropriate fix to existing, inadequate federal flood management legislation? We consider the reforms in the context of existing federal flood-related programs and local land-use regulation of floodplains. The United States lacks comprehensive, federal flood management legislation, compared to the European Union, but rather relies on a hodgepodge of flood-related laws with differing missions and distinct lead federal agencies. (7) Historically, these myriad programs did not employ integrated flood management techniques, but rather relied heavily on structural solutions. Local governments retained responsibility for coping with the remaining risks. In light of this history, we argue that these reforms will substantially improve the federal flood management program but represent only a first step toward risk-based flood damage reduction.

   We also consider whether the Obama Administration's climate resilience reforms will encourage and support more consistent local government flood management. With little historical support or guidance from the federal government, local governments have managed flood control with varying degrees of effectiveness. Some have engaged in a futile race with nature while others have moved forward with innovative, integrated flood management plans. In the months since these executive directives were issued, federal agencies already have released studies advancing more integrated planning and incorporating likely climate impacts. (8) The federal government has participated in public-private partnerships to fund innovative, flood protection projects, including nonstructural flood management approaches. (8) These incentive programs have the potential to encourage more local flood preparation as well. As executive branch measures, however, the climate resilience reforms will work only when the federal agencies willingly implement the guidelines. (10)

   The biggest problem with the Administration's approach is that it leaves in place the existing patchwork of flood-related legislation. The current, competing missions could hinder the reforms' effectiveness. Local governments face their own political, fiscal, and legal barriers to adapt to the increased risks of climate change-induced floods. The federal government must induce local governments to align their land-use policies with emerging federal policies because we can no longer rely almost exclusively on structural solutions to coastal sea level rise, storm surges, and inland floods. Science does not support that position.

   Local governments should lead on flood management because they are on the front lines of flooding; they also can most readily control land-use to manage floodplain development, a key strategy for reducing flood damage. (11) The federal and state governments must encourage integrated flood management by providing guidelines and increasing incentives. The proposed federal flood risk management standard, new commitments to regional climate data collection, and existing federal grant programs--such as hazard mitigation planning grants, and community block development grants--can provide important direction to local governments.

   Ultimately, the United States should move toward the European Union's risk-based flood management approach (12) and adopt integrated floodplain and coastal management in a comprehensive federal statutory scheme. Floodplains and coastal areas must be managed through a combination of structural defenses, upstream storage, design modifications, and land-use controls including both retreat from vulnerable areas and integrated floodplain management. The formulation and adoption of an integrated policy will be extremely difficult, but it will avoid rising damage costs, increased public risks and social disruption, and will promote water security. (13)

   Part II of this Article details the Obama Administration's climate resilience reform measures. Part III considers the effectiveness of existing flood-related federal laws. Part IV analyzes the climate resilience reforms' ability to improve existing federal programs. Part V explores local government flood management, the available adaptation tools, and the obstacles posed by the Supreme Court's takings jurisprudence.

2. Climate Resilience Reform

   1. Executive Action

      In the face of legislative resistance, indifference, and gridlock, President Obama has acted unilaterally to promote climate resilience planning. He has issued several executive orders to date. (14) The first,

      Executive Order 13,514, issued on October 5, 2009, directed agencies to participate actively in the Interagency Climate Change Adaptation Task Force. (15) In 2010, the Council on Environmental Quality (CEQ) issued a task force progress report that called for adaptation based on science, integrated and risk-based approaches. (16) CEQ subsequently issued instructions and a deadline for federal agencies to develop a climate adaptation plan. (17)

      After Congress failed to pass climate change legislation in 2010, President Obama began in earnest to assert his executive powers to promote climate change mitigation and adaptation. The enormous impact of Hurricane Sandy in 2012 further motivated climate resilience reform. Executive Order 13,632 created the Hurricane Sandy Rebuilding Task Force and has enabled federal, state, and local actors to proceed with the recovery with an eye toward future climate change impacts. (15) The Hurricane Sandy Task Force made several recommendations: 1) Facilitate the incorporation of future risk assessment, such as sea level rise, into rebuilding efforts with the development of a sea level rise tool; 2) develop a minimum flood risk reduction standard for major Federal investment that takes into account data on current and future flood risk; and 3) create a design competition to develop innovative resilient design solutions that address the Sandy-affected region's most pressing vulnerabilities. (19)

      The task force's work led to the development of shared federal resilience guidelines to govern Sandy-related infrastructure investment. (20) The Task Force specifically recommended more integrated and regional planning that will "promote better decision making, create more efficient and effective projects, and ... avoid unintended impacts." (21) State and local stakeholders will be able to design more effective projects based on knowledge of other related investments, and the integrated and regional planning will reduce the "risk of unplanned redundancies or gaps in resilience." (22)

      In response to the Task Force's findings, President Obama's next executive action, the Climate Action Plan (Plan), promotes climate change mitigation and adaptation. (21) Executive Order 13, 653 supplemented the Plan and required federal agencies to consider removing barriers to investment in climate change resilience as well as reforming policies that increase vulnerability to climate change related risks. (24) Federal agencies also must identify opportunities to support state and local investment in resilience. (25) The 2014 Climate Data Initiative supports the Climate Action Plan by improving the reliability of information as well as access to information that can help private and public entities plan for resilience. (26) The Climate Data Initiative also encourages entrepreneurs to develop more useful and accurate modeling. (2)

      On January 30, 2015, President Obama issued another...