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For Peat’s Sake: The Risk of Action vs Inaction for Mitigating Future Flood Losses

For Peats Sake LogoBy Marla J. Stelk, Policy Analyst, ASWM

Losses due to flooding and severe storm events have been and continue to be on the rise due to both naturally occurring extreme weather events and human activity. According to the National Oceanic and Atmospheric Administration (NOAA), the U.S. experienced four (4) billion dollar inland flood events during 2016, “doubling the previous record as no more than 2 inland flood events have occurred in a year since 1980.”[1] Sea level rise is exacerbating the issue in coastal areas, and with more and more development happening along U.S. coastlines, more infrastructure and lives are at risk than ever. The Intergovernmental Panel on Climate Change (IPCC) reported that during the 20th century, sea level rose .07 inches on average per year. Recent satellite observations report a significant increase at .12 inches per year since 1993. A 2015 report released by NOAA, entitled Population Trends Along the Coastal United States: 1980 – 2008, found that in 2003 more than half of the U.S. population (53%) lived in 673 coastal counties – a land mass that only accounts for 17 percent of the nation’s contiguous land area. This was an increase of 33 million people since 1980.[2]

katrina052517From 1980 – 2017, there were 27 billion-dollar flooding events totalling $114.4 billion dollars (CPI-adjusted) for an average of $4.2 billion per event, involving a total of 520 deaths. The Weather Channel reports that on average, there are typically around 82 flood-related deaths per year in the U.S., making it the second most deadly weather-related event behind extreme heat. In contrast, in just one 18-month time window, from January 2015 and June 25, 2016 there were an estimated 234 flooding deaths.[3] According to information from the Association of State Floodplain Managers (ASFPM) website, flood damages now cost an average of $6 billion annually – a four-fold increase from the early 1900s.[4] See Chart A for a graphic illustration of flood related losses between the years 1980–2016.

With all of these financial impacts, not to mention the loss of thousands of lives, it’s no wonder that state and local governments are trying to find ways to mitigate their risk to natural hazards. But what legal and financial risks do they face in their attempts to reduce their risks for future disasters? On the one hand, they could face legal challenges for not taking enough preventative measures if they have sufficient data to show that with inaction they have increased the risk of disaster-induced damages in their communities. On the other hand, if they are more proactive, what kinds of legal challenges may they face in regard to potential “takings” claims from private property owners as they try to move people and infrastructure out of harm’s way?  This is exactly the quandary that many states and local governments currently face, and it is what Dr. Jon Kusler, Esq. has so meticulously examined in his most recent book, Government Liability for Flood Hazards. As Dr. Kusler comments in his Forward, they are “Damned if they do; damaged if they don’t.”

As a local elected official in my home town, it’s an issue that I think about constantly. My small town in Maine only has a population of around 17,000, and we are not located on the coast, so our risks are not as great as many other communities along the coast of Maine. We do, however, have flooding issues from time to time along the Presumpscot and Little Rivers. We are also the fastest growing community in Maine, so we are seeing an increase in run-off from newly developed impervious surfaces, which can exacerbate flooding intensity. With forecasts for increased precipitation events in the Northeast[5], flood risk is something our community is eventually going to have to take seriously.  Jon’s book is an excellent resource chock full of annotated legal cases and textual discussion that state and local governments can use with their attorneys to avoid or address potential legal challenges as they figure out how to prepare – or not – for potential future flood damages.

glfhI’ve had the immense honor of getting to know Jon over the past four years. Many of you have likely known him for far longer. For those of you who have not been lucky enough to get to know him, Jon is a lawyer, scientist, prolific writer, and educator with more than 35 years of experience working with legal/science/policy issues in water resources, wetland and floodplain management, and natural hazards. He is one of only a handful of active wetland scientists/managers with the valuable combination of both a law degree and Ph.D. In 1983, Jon helped found the Association of State Wetland Managers and served as its Executive Director from 1990 to 2001. He was recipient of the Gilbert White award in floodplain management in 1979, the Environmental Law Institute’s National Wetland Lifetime Achievement Award in 1990 and the Society of Wetland Scientist’s Lifetime Achievement Award in 2009. He has authored a wealth of articles, books and reports specializing in mitigation of natural hazards, wetland and floodplain management, and water resources planning. This book is truly a signature achievement and is the culmination of Dr. Kusler’s flood/liability related research (and that of his colleagues) from over the last three decades, so For Peat’s Sake, order your copy now and keep it close at hand.

[1] NOAA National Centers for Environmental Information (NCEI) U.S. Billion-Dollar Weather and Climate Disasters (2017).

This entry was posted in adaptation, climate change, environmental law, flooding, floodplains, hurricanes, Infrastructure, Land use planning, law, natural hazards, resiliency, sea level rise, stormwater, watershed management, wetlands. Bookmark the permalink.

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