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No Adverse Impact

No Adverse Impact. Association of State Floodplain Managers. A Common Sense Strategy for Floodplain Management. No Adverse Impact. Association of State Floodplain Managers. A Common Sense Strategy for Floodplain Management. ASFPM Mission.

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No Adverse Impact

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  1. No Adverse Impact Association of State Floodplain Managers ACommon Sense Strategy for Floodplain Management

  2. No Adverse Impact Association of State Floodplain Managers ACommon Sense Strategy for Floodplain Management

  3. ASFPM Mission Mitigate the losses, costs, and human suffering caused by flooding. and Protect the natural and beneficial functions of floodplains.

  4. Association of State Floodplain ManagersChapters & Other State FPM Associations MN MT NORFMA RI WI MI NY OH IL NJ IN NE UT CO MD MO VA KS FMA KY NC OK AZ AR SC NM MS AL GA LA TX 11,000 Members • 27 Chapters Several State Associations & Pending Chapters FL

  5. Trends in Flood Damages • $6 billion annually • Four-fold increase from early 1900s • Per capita damages increased by more than a factor of 2.5 in the previous century in real dollar terms • And then there was Katrina…

  6. 2005 Hurricane Damage Costs = $47 Billion

  7. What is Influencing the Trend? Increased Property at Risk Current Policy: • Promotes intensification in risk areas • Ignores changing conditions • Ignores adverse impacts to existing properties • Undervalues natural floodplain functions

  8. NFIP Evaluation - AIR NFIP Limitations • Few Restricted Areas • Seaward of mean high tide • Floodways • No Requirement to Protect Natural Functions • No Limits on Siting Critical Facilities • Fill in Floodplain Allowed and Facilitated

  9. No Adverse Impact Defined Activities that could adversely impact flood damage to another property or community will be allowed only to the extent that the impacts are mitigated or have been accounted for within an adopted community-based plan.

  10. 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.

  11. No Adverse ImpactFloodplain Management • NAI Regulations make the “takings issue” a non-issue • Detailed Legal Paper in notebook

  12. Landowner Does Not Have All Rights Under The Law • No “Right” to be a Nuisance • No “Right to Violate the Property Rights of Others • No Right to Trespass • No Right to be Negligent • No Right to Violate Laws of Reasonable Surface Water Use; or Riparian Laws • No Right to Violate “Public Trust”

  13. Governments May Be Held Liable if… • Construction of a Road Blocks Drainage • Stormwater System Increases Flows • Structure Blocks Watercourse • Bridge Built Without Adequate Opening

  14. Government Liability (cont.)… • Grading Land Increases Runoff • Flood Control Structure Causes Damage • Filling Wetland Causes Damage • Issuing Permits for Development that Causes Harm to a Third Party

  15. NAI Benefits • Helpsensure the actions of any community or property owner do not adversely impact others/coastal resources • Incorporates multi-objective-management (MOM) and watershed planning principles

  16. NAI Benefits (cont.) Benefits of NAI to your community: • Reduce your flood losses and costs over time • Reduce likelihood of your actions increasing flood damage to others • Reduce challenges and lawsuits

  17. NAI Benefits (cont.) Benefits of NAI to your community: • Reduce flood insurance premiums through the Community Rating System • Incorporate multiple objectives • Protect natural resources and values of floodplains

  18. No Adverse Impact (NAI) • Principle developed • NAI Toolkit • Legal Aspects of NAI • Coastal NAI funded by NOAA

  19. Why Coastal NAI is needed… • 53% of US Population lives w/in 50 miles of coast • 71% of annual disaster losses in coastal areas • Population movement to coast continuing • 85% of coastal residents have never experienced a major hurricane

  20. How To Follow the No Adverse Impact Principle? • Identify ALL the Impacts of a Proposed Development • Notify Impacted Persons of the Impact of Any Proposed Development • Mitigate Impacts

  21. No Adverse Impact OVERVIEW OF COASTAL NO ADVERSE IMPACT (CNAI) STRATEGIES

  22. Community Activities that can Incorporate NAI: • Hazard Identification • Planning • Regulations and Standards • Mitigation Actions • Infrastructure • Emergency Services • Education and Outreach

  23. Mitigation Actions • Mitigate while not transferring the problem elsewhere • Non-structural mitigation on individual structures: • elevation • acquisition • flood proofing • Structural---often cause adverse impacts to others • levees, dams, channels

  24. Infrastructure • Consider impacts of maintenance, repair and new construction • Consider individual and cumulative impacts • Mitigate infrastructure while not transferring the problem elsewhere

  25. Emergency Services • Disaster response should consider cumulative impacts • Sand bags--levees, etc. • Plan flood fighting to avoid adverse impacts • Emergency actions should not increase flooding on others

  26. Education and Outreach • Target specificaudiences • Modify existing outreach efforts • Your message should be: • Know your hazards • Understand how your actions could adversely impact others • Identify how community members can protect themselvesand others

  27. Community Activities That Will Be Discussed In Today’s Workshop: • Hazard Identification & Mapping • Planning • Regulations and Standards

  28. If we continue to encourage at-risk development and ignore the impact to others, can we accept the consequences… … and, are you willing to pay for it? Current Approaches Create Future Disasters

  29. No Adverse Impact • Background • The Coastal Zone and Coastal Hazards • NAI Strategies “7 Building Blocks” • Institutional Framework

  30. Public Trust Doctrine By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea… The seashore extends as far as the greatest winter flood runs up. - Institutes of Justinian 535 CE

  31. Federal, State and Local Roles • The Constitution of the United States of America • Amendment X (1791): The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States Respectively, or to the people

  32. Legal Origins US Constitution • States retain ownership of the lands beneath navigable waters • Federal government retains supreme, but not exclusive, control over navigation

  33. Public Trust Doctrine • Colonies followed English common law • Recognized public rights in navigable waters & their shores • Public uses • Access for commerce & transportation • Environmental protection • Recreation

  34. Waters/Lands held in Public Trust • Tidewaters to their farthest reaches • Tidelands • Navigable-in-fact waters • Permanently submerged lands • Adjacent wetlands (varies greatly among States)

  35. Public Trust Boundaries NOAA Coastal Services Center

  36. Arnold vs. Mundy (1821) • New Jersey Supreme Court -Arnold v. Mundy, 6 N.J.L. 1, 1-2 (Sup. Ct. 1821) • First major articulation of the public trust doctrine in America

  37. Arnold vs. Mundy (1821) Waters and land under water (i.e., “tidal lands”) belong to all the people of New Jersey for purposes of “passing and re-passing, navigation, fishing, fowling, sustenance, and all other uses of the water and its products”. “Ancillary use” of dry sand

  38. Illinois Central Illinois Central RR v. Illinois (1892) • State had abdicated its responsibility to preserve the waters for public use

  39. THE PUBLIC TRUST DOCTRINE IN NEWJERSEY • 1984–Matthews v. Bay Head Improvement Ass’n Issue: “…[w]hether, ancillary to the public’s right to enjoy the tidal lands, the public has a right to gain access through and to use the dry sand area not owned by a municipality but by a quasi-public body.”

  40. THE PUBLIC TRUST DOCTRINE IN NEWJERSEY • 1984– Matthews v. Bay Head Improvement Ass’n: • Two aspects: (i) “right to cross privately owned dry sand beaches in order to gain access to the foreshore”; (ii) “right to sunbathe and generally enjoy recreational activities” as enjoyed by the public in municipal beaches.

  41. Trust rights in New Jersey include dry sand area…

  42. The Matthews Factors: 1. “Location of dry sand in relation to the foreshore” 2. Availability of public dry sand areas 3. Extent of public demand 4. Prior usage of upland by owner

  43. NAI Strategies • Hazard Identification & Mapping • Planning • Regulations and Development Standards

  44. Coastal Hazards in the U.S. • Severe coastal storms • Storm surge • Waves • Tidal flooding • Relative sea-level change • Subsidence • Shoreline change (erosion/accretion) • Tsunami

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