Another illegal action unlikely to be challenged in court?

Mil­lions of Amer­i­cans liv­ing and work­ing in flood­plains and oth­er low-lying areas are at acute risk of being inun­dat­ed – not by ris­ing water, but by a tidal wave of fed­er­al reg­u­la­tions – cour­tesy of the Oba­ma Administration.

With pub­lic atten­tion riv­et­ed on the chaot­ic devel­op­ments in the Mid­dle East and the severe cold weath­er that gripped much of the nation over the win­ter, the White House on Jan­u­ary 30 qui­et­ly issued Exec­u­tive Order (EO) 13690, “Estab­lish­ing a Fed­er­al Flood Risk Man­age­ment Stan­dard and a Process for Fur­ther Solic­it­ing and Con­sid­er­ing Stake­hold­er Input.”  https://whitehouse.gov/the-press-office/2015/01/30/executive-order-establishing-federal-flood-risk-management-standard-and-

Violating existing law

The exec­u­tive order is more than just a mouth­ful; it is the lat­est fed­er­al intru­sion into what have tra­di­tion­al­ly been pre­dom­i­nant­ly self-gov­ern­ing com­mu­ni­ties.  In defi­ance of exist­ing law, the EO rede­fines the term “flood­plain” to expand the area of the coun­try to be reg­u­lat­ed as such.  The Oba­ma EO was issued in direct vio­la­tion of lan­guage Con­gress includ­ed in a FY 2015 appro­pri­a­tions bill that pro­hib­it­ed the Admin­is­tra­tion from imple­ment­ing new stan­dards until it had solicit­ed and con­sid­ered input from gov­er­nors, may­ors, and oth­er affect­ed parties.

In a March 30 “Dear Col­league” let­ter, Rep. John Rat­cliffe (R‑TX) point­ed out that, “To date, there has been no pub­lic dis­clo­sure on the basis of the alter­na­tives includ­ed in the EO, how they were devel­oped and decid­ed upon, or a cost-ben­e­fit analy­sis of them.” Rat­cliffe fur­ther not­ed that the EO calls for the Nation­al Water Coun­cil “to issue

Guide­lines to pro­vide guid­ance to agen­cies on [the EO’s] imple­men­ta­tion,” even though the Nation­al Water Coun­cil hasn’t received a cent of fed­er­al fund­ing since 1982.

Federal Flood Risk Management Standard

The cen­ter­piece of the Oba­ma exec­u­tive order is some­thing called the Fed­er­al Flood Risk Man­age­ment Stan­dard (FFRMS).  Under the exec­u­tive order, the FFRMS applies to new con­struc­tion and sub­stan­tial improve­ments to exist­ing struc­tures in flood­plains and oth­er low-lying areas. Speak­ing for the Admin­is­tra­tion, the Fed­er­al Emer­gency Man­age­ment Agency (FEMA) has claimed repeat­ed­ly that the FFRMS will not affect pri­vate devel­op­ment.  Noth­ing could be fur­ther from the truth.

Indeed, the new fed­er­al stan­dard will “in fact sub­stan­tial­ly lim­it pri­vate devel­op­ment,” says Rep. Rat­cliffe.  “Because fed­er­al agen­cies must avoid or min­i­mize actions that impact flood­plains when tak­ing ‘fed­er­al action’ – includ­ing when they issue fed­er­al per­mits, licens­es, and approvals – the EO is expect­ed to impede or dra­mat­i­cal­ly increase the cost of con­struc­tion and labor in low-lying com­mu­ni­ties.”  Fail­ure to adopt the new stan­dard could make com­mu­ni­ties inel­i­gi­ble for fed­er­al pro­grams, includ­ing port devel­op­ment projects, haz­ard mit­i­ga­tion grants, flood con­trol projects, Brown­fields rede­vel­op­ment, Com­mu­ni­ty Devel­op­ment Block Grants, fed­er­al­ly backed mort­gages, and fed­er­al trans­porta­tion projects.

While the EO is vague on the details of the FFRMS, it says that incor­po­rat­ing the new stan­dard “will ensure that [fed­er­al] agen­cies expand man­age­ment from the cur­rent base flood lev­el to a high­er ver­ti­cal ele­va­tion and cor­re­spond­ing hor­i­zon­tal flood­plain to address cur­rent and future flood risk and ensure that projects fund­ed with tax­pay­er dol­lars last as long as intended.

New regulatory regime

Deter­min­ing what con­sti­tutes “future flood risk” is close­ly tied to, in the President’s words, “a nation­al pol­i­cy on resilience and risk reduc­tion con­sis­tent with my Cli­mate Action Plan.”  In oth­er words, the administration’s poli­cies to “com­bat cli­mate change” will serve to jus­ti­fy the myr­i­ad rules, reg­u­la­tions, and stan­dards Wash­ing­ton will impose on com­mu­ni­ties through­out the coun­try in the name of pro­tect­ing them from flood­ing. A reg­u­la­to­ry regime is being put into place that will give Wash­ing­ton final say over what can and can­not be built and how struc­tures – res­i­den­tial and com­mer­cial – are to be con­struct­ed and where.

In tak­ing its micro­man­age­ment of Amer­i­can soci­ety down to the lev­el of writ­ing local build­ing codes, the Oba­ma Admin­is­tra­tion is bypass­ing both Con­gress and the fed­er­al rule­mak­ing process. The goal is very sim­ple:  Make the pop­u­lace, and the elect­ed offi­cials who sup­pos­ed­ly rep­re­sent them, sub­servient to Washington.