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Table of Contents


I.Disasters Are the Rule, Not the Exception 1

II.Responding to Disasters 3

A.Broad Emergency Powers Affect Private Property 3

1.Statutory Provisions 3

2.Tort Immunity for Actions 5

3.Eminent Domain and Inverse Condemnation in Emergencies 7

B.Occupying or Demolishing Buildings 9

1.Standards for Limiting Occupancy 9

2.Demolishing or Renovating Historic Buildings 11

C.Housing Refugees 13

1.Federal and State Authority and Actions 14

2.Conflict with Local Zoning 14

D.Rebuilding Non-Conforming Uses 16

E.Environmental Issues 17

1.Superfund Sites 17

2.Human Health Risks 18

3.Liability for Oil Spills 19

4.Solid and Hazardous Waste Disposal 21

5.Mold Issues 23

6.Water Pollution Issues 24

7.Air Pollution Issues 25

III.(Re)Construction on Dangerous Ground 25

A.Floods, Storm Surges and Tsunamis 25

1.National Flood Insurance Program 26

2.“No Adverse Impact” Flood Plain Management 31

3.Constitutional Issues 32

4.Reconstruction After Katrina and Rita 34

5.Reconstruction in Missouri After the 1993 Floods 38

6.Pacific Coast Tsunamis 40

B.Earthquake Country 41

1.Seismic Design and Building Standards 41

2.Zoning 44

C.Wildfires 45

Katrina, Rita and More:

Can Land Use and Environmental Laws Help in Recovering from Disasters

and Preparing for The
Next Big One?

Timothy N. Brown1

Spring 2006

Where can you live in the United States where you are safe from natural disasters? If a tsunami hit, would they fix homes on the beaches? You are damn right they would. Why are we any different?”2

I.Disasters Are the Rule, Not the Exception

The death, devastation and misery wrought by Hurricane Katrina, the memory of September 11, 2001 and the April 18 centennial of the 1906 San Francisco Earthquake remind us of the terrible effects of catastrophic disasters in the United States. Whether caused by earthquake, tornado, fire, flood or hurricane, natural disasters are frequent in our country, and the same type of disaster often recurs in the same place, as the many hurricanes in recent years remind us.

The frequency of disasters can be tracked through Federal Disaster Declarations; the Federal Emergency Management Agency’s web site lists declared disasters by calendar year from 1953 to the present.3 During 2005, major disaster declarations affecting six states were issued for Hurricanes Dennis, Katrina, Ophelia, Rita and Wilma, as well twenty-eight declarations for severe storms and flooding, three for tornados, four for severe winter storms and two for Pacific typhoons affecting Pacific Ocean island territories. Similar numbers of declarations were issued in previous years.

The cost in lives, injuries and property damage from the largest of these disasters was well-covered by the media. Katrina, with its thirty-foot storm surge, fifty-five foot high waves and 127 mile-per-hour winds at landfall in Louisiana, and the failure of levees in and around New Orleans, left over 1,300 persons dead in Florida, Louisiana and Mississippi, and estimated property damage of over $75 billion.4 Nearly 100,000 homes in New Orleans were flooded or damaged. One source estimated that as many as 43,000 homes in Orleans Parish and three neighboring parishes may need to be demolished.5

Before Katrina, the most damaging ”flood event” in U.S. history was the Great Midwest Flood of 1993. During a several-month period in 1993, floods inundated the upper Mississippi River basin6 and the Missouri River basin. Floods submerged ancient flood plains in ten states, and significant flooding of both the Mississippi and Missouri Rivers occurred around St. Louis. The volume of water involved in the floods and the duration of the floods were unprecedented. Approximately 10,000 homes were destroyed and another 16,000 were damaged, seventy-five towns were completely flooded, over 15 million acres of farm land were flooded and fifty persons were killed. Damages approached $15 billion.7

Major fires have been a continuing problem in the arid western states. The California wildfires of 2003 burned over 750,000 acres, caused 24 deaths and 217 injuries, and destroyed over 15,000 structures, including 3,600 homes, causing over $1.7 billion.8 The 1991 Oakland Hills fires in northern California claimed 25 lives, destroyed 3,200 homes and caused about $1.7 billion in damage.9 Fires in Oklahoma and Texas in late 2005 and early 2006 remind us that many states are affected by fires.

The risk of earthquakes along the Pacific Coast of the United States is well known and demonstrated by recent history. The 1994 Northridge Earthquake in the Los Angeles area, with a magnitude of 6.8 on the Richter scale, and the 7.0 1989 Loma Prieta Earthquake in the San Francisco area, each killed dozens of persons, injured thousands, and caused billions of dollars in property damage.10 The magnitude of the great 1906 San Francisco Earthquake is estimated at 7.7 to 7.9, or as much as ten times the severity of the 1989 and 1994 earthquakes. The risk of earthquakes is not limited to the Pacific Coast. The strongest earthquakes in the continental United States during the past two centuries were the three magnitude 8 earthquakes centered on the New Madrid, Missouri fault system in late 1811 and early 1812.11 Those earthquakes have been estimated to have caused damage in an area of 600,000 square kilometers.12 Undersea earthquakes are a threat because they can cause deadly tsunamis, as demonstrated by the great tsunami in the Indian Ocean on December 26, 2004. A magnitude 9.2 undersea earthquake in 1964 near Anchorage, Alaska, caused a tsunami felt across the Pacific Ocean that killed 103 persons in Alaska and sixteen persons in California and Oregon.13

This paper discusses how the land use and environmental laws of the states and the federal government assist in responding to disasters, and how they can mitigate the effect of future disasters. The next section, on responding to disasters, discusses how governmental emergency powers can affect private property, limitations on occupying or demolishing buildings after a disaster, housing refugees, and environmental law issues. The third section discusses how the effects of disasters can be mitigated by building code and zoning ordinances.

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