FEMA Turning Blind Eye to NFIP's Influence on Land Use (1)

Flooding in Louisiana – Aug. 2016| Photo Credit: USDA.gov

Floods risks are increasing nationwide. The National Flood Insurance Program (NFIP), created in 1968 to reduce the nation’s flood exposure through a unique combination of land use standards and federally-subsidized insurance, is a crucial tool in the nation’s arsenal for managing flood risk. Most importantly, the NFIP’s land use criteria helps reduce our nation's exposure to flooding by limiting risky development.   

Disconcertingly, FEMA, in a recently published draft Nationwide Programmatic Environmental Impact Statement (NPEIS) for the NFIP, handicaps the program’s ability influence development in floodplains.  Per the draft NPEIS, FEMA narrowly interprets the concept of land use authority and finds the agency lacks the power to proscribe the type of development which may occur in a floodplain. FEMA’s inaccurate assertion contradicts Congress’s intentions, the agency’s own regulations, which reflect its authority to link flood insurance controls on floodplain development, and well-established Constitutional principles.  FEMA’s position is disconcerting because it leads one to conclude the NFIP is a weak tool for effectively managing our nation’s floodplains to address the increasing threat of major flood disasters. In contrast, the NFIP is one of the nation’s most important mechanisms for combating this threat due, precisely, to its influence over sound land use management.

As such, NRDC, in conjunction with American Rivers and Defenders of Wildlife, has directly challenged FEMA’s inaccurate position in its draft NPEIS by submitting an extensive comment letter (PDF iconarnrdcdefenders_nfip_dnpeis_comments.pdf) clearly explaining why FEMA has the authority to influence floodplain development, including restricting it in certain instances.  (Blog post Pt. 2 will address other concerns NRDC has with FEMA’s draft NPEIS). Because flood disasters place too great a burden on our nation’s resources, FEMA must not turn a blind eye to the NFIP’s ability to influence land use decisions in floodplains.

The National Flood Insurance Program

Congress created the NFIP to be a key mechanism for reducing flood damages nationwide. A primary goal of the program is to encourage states and local governments to constrict development in and guide development away from flood prone areas by enacting land use regulations.  Toward this goal, the NFIP requires states and local governments to adopt and enforce adequate land use measures, as established by FEMA, before flood insurance can be sold in the community. 

The NFIP is a completely voluntary program. Participating communities are free to join and leave the program at will. Presently, 22,000 communities across the nation have chosen to participate due to the benefit of federally-subsidized insurance the program provides to their residents.

Communities that voluntarily choose to participate in the program must enforce, at a minimum, the land use criteria FEMA issues to manage floodplain development. FEMA’s land use criteria, once adopted by the community, take precedence over any less restrictive or conflicting local laws, ordinances or codes for floodplain management.  However, NFIP-participating communities are permitted and encouraged to go above and beyond the minimum land use criteria set by FEMA due to the additional economic and environmental benefits of limiting risky development in floodplains.

Flooding in Minot, ND. | 5th Bomb Wing Public Affairs Photo by Senior Airman Jesse Lopez

FEMA’s Authority Over Floodplain Development

FEMA’s characterization of its land use authority in the draft NPEIS is misleading. While FEMA is correct that land use authority, in the narrowest sense of the term, is a power typically exercised by states and localities, FEMA is incorrect to imply the agency lacks the authority to establish land use standards to guard against risky floodplain development. FEMA’s interpretation of land use authority is inappropriately narrow, as FEMA can act to positively influence floodplain development and minimize the related economic and environmental impacts through its existing statutory authority.

Congress fully intended for FEMA (HUD when the NFIP was originally implemented) to use the NFIP to limit floodplain development. Congress declared a central purpose of the NFIP was to (1) encourage state and local governments to make appropriate land use adjustments to constrict the development of land which is exposed to flood damage and (2) to guide the development of proposed future construction, where practicable away from locations threatened by flood hazards. Congress stipulated states and local governments must adopt “adequate land use and control measures” (with effective enforcement provisions) to reduce or avoid future flood losses in order to participate in the program. Otherwise, federally-subsidized flood insurance would not be made available to their residents. Congress gave FEMA explicit authority to develop land use standards that would achieve these goals. Therefore, FEMA through the NFIP has significant influence over floodplain development; FEMA has clear authority to establish the minimum land use standards by which all states and local government must abide to participate in the NFIP.

Additionally, FEMA’s regulations confirm the agency’s authority to influence, including proscribing, floodplain development. Per 44 CFR § 59.2(b), FEMA requires state and local governments to adopt and enforce floodplain management regulations that satisfy, at minimum, FEMA-established criteria for land use management. And FEMA already prohibits certain types of development under these criteria. For example, FEMA prohibits any development in a regulated floodway that potentially could elevate flood levels in a NFIP participating community during the occurrence of the 100-year flood.  Thus, FEMA is not without recourse to impose floodplain development restrictions as the draft NPEIS implies.    

Lastly, FEMA does not need “land use authority,” as it narrowly defines it, to modify federal floodplain management criteria to limit floodplain development. Under the “spending clause” of the U.S. Constitution, Congress may require compliance with federal standards in exchange for receipt of federal funds. So long as the funds are expended for the “general welfare,” the funding conditions are unambiguous enabling states and communities to exercise their choice knowingly, and the financial inducement is not unduly coercive, Congress may require states and local governments to take action that the federal government could not normally require them to take.

The NFIP plainly satisfies these requirements. The program is for the “general welfare” as the intended purpose is to reduce the nation’s exposure to flooding. Additionally, the NFIP is a voluntary program.  States and local communities are free to choose whether to participate. Further, the requirements are not unduly coercive. As FEMA notes in the draft NPEIS, private flood insurance is already an option under the NFIP, and is becoming more readily available. Hence, States and local governments do not have to join the NFIP for flood insurance to be available to their residents.

Thus, FEMA can directly influence how development occurs in a floodplain, including imposing certain restrictions, to minimize damage and preserve the natural functions of the floodplains.

Why Correcting FEMA Is Important

As the climate changes, flood risks will likely become more severe for most of the United States. According to a FEMA-commissioned study, many areas of the country will suffer higher amounts of flood damage due to substantial expansions of high-flood risk areas. FEMA must be able to account for these changes by fostering mitigation, which includes proscribing sustainable land use practices in the nation’s floodplains.  Unfortunately, FEMA is hamstringing its ability to prepare for this future by narrowly interpreting land use authority. Congress clearly envisioned the NFIP would directly influence floodplain development and granted FEMA such authority. FEMA must stop turning a blind eye to its authority under the NFIP to impact floodplain development. 

About the Authors

Joel Scata

Water and Climate Attorney, Water Initiatives, Healthy People & Thriving Communities Program

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