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December 30, 2019 | Jaffe Law

With the impacts of climate change, it is no surprise that storms have gotten larger and flooding more significant

 

With the impacts of climate change, it is no surprise that storms have gotten larger and flooding more significant. In the last two years, Michigan had greater flooding, particularly of its farm fields, than had been seen in decades. https://www.crainsdetroit.com/news/farmers-plans-wash-away-michigans-wettest-season-record

The national flood insurance program (NFIP) operations have remained pretty much the same since its founding in 1968.  However, the program has been insolvent since 2005, the year Katrina hit and failure has been avoided with regular infusions of cash by the US Congress.  In the last few years, the NFIP has been extended by stopgap legislation on a one and two month cycle, which is not particularly productive.  The program has been renewed multiple times since 2008 and has lapsed (briefly) at least four times.  On December 20, 2019, the President signed legislation extending the flood program to September 30, 2020.   https://www.congress.gov/bill/116th-congress/house-bill/1865/text?q=%7B%22search%22%3A%5B%22national+flood+insurance+program%22%5D%7D&r=17&s=6

Beyond the simple extension of the program, there are those who are thinking about ways to improve and modify the insurance program.  Since its inception, the program has operated like traditional insurance, with homeowners being paid to rebuild their homes in the same flood prone locations. FEMA studies indicate that in the next 80 years, floodplains subject to insurance will grow by some 40%! 

Consideration should be given to programs: to encourage people to move away from coastal areas and floodplains, possibly through programs where NFIP will buy, rather than replace flood damaged homes; that will require heightened construction standards to reduce the potential of flood damage; to provide greater information to homebuyers at the time of purchase; and to generally gather and manage data better. Given that the trend in flooding has been in only one Direction (more) because of the increasing size, frequency and severity of storm events over the last 15 years, Congress has been discussing allowing insurance rates to rise while attempting not to “price out” middle and lower income families living in floodplains. Two bills on this topic are pending now, HR 3167 and S2187, but neither seems to be making much progress. There are two parallel bills, HR 2462 and S1267 both of which would establish a pilot program making grants to local governments to improve their mapping of flood potential to help homeowners, businesses and local units of government to minimize the risk of urban flooding.  Those bills remain stuck in Congress. These do not touch on the need for better building codes and better zoning by local governments to further address flood risks in this era of ever increasing storms

Albert Einstein is reportedly said to have defined insanity is doing the same thing over and over and expecting a different result.  The US has pursued basically the same approach with respect to flooding over the last 15+ years apparently expecting a different outcome. What does that say about us?

The above is intended as general information only by the author and should not be construed as legal advice or as creating or soliciting an attorney-client relationship.  You should consult your attorney for guidance with respect to any particular issue or legal inquiry.