III.(Re)Construction on Dangerous Ground

III.(Re)Construction on Dangerous Ground

A.Floods, Storm Surges and Tsunamis

1.National Flood Insurance Program

Congress enacted the National Flood Insurance Program (“NFIP”) under the National Flood Insurance Act of 1968 to make flood insurance available to property owners in flood-prone areas.¹⁴¹ Under the NFIP, FEMA identifies “Special Flood Hazard Areas” prone to flood; it also identifies areas prone to mudslide and/or flood-related erosion, discussion of which is outside the scope of this paper. The regulations require loans made by federally-regulated financial institutions secured by properties in Special Hazard Areas to require flood insurance as a condition to making the loan. To obtain the insurance, the Act requires communities to adopt flood plain management regulations consistent with federal criteria.¹⁴²

The largest payout -- $1.5 billion -- from the federal flood insurance program before Hurricane Katrina was for damage caused by Hurricane Ivan. The flood insurance program will face many claims from Hurricane Katrina victims, perhaps as much as $23 billion in claims from 200,000 property owners.¹⁴³

a.Identifying Special Flood Hazard Areas

FEMA has issued guidelines that provide technical requirements and specifications for FIRMs and related matters. A draft Flood Insurance Study is developed under procedures found in 44 C.F.R. Part 65 and Part 66. Before the Study becomes final, it is subject to a statutory public comment and appeals period, where property owners and tenants have an opportunity to challenge elevation determinations based on scientific or technical objections. (See the comments below about the new draft FIRMs issued for coastal Mississippi.) FEMA also has developed several procedures for amending current FIRMs, including a Letter of Map Amendment to correct a map when a specific property has been inadvertently included in an SFHA, a Letter of Map Revision, a Letter of Map Revision based on Fill and a Physical Revision, and Republication to document changes, generally based on man-made changes to the flood plain.

Communities can remove areas from an SFHA by installing a “Flood Protection System,” often a “Levee System.” FEMA’s regulations describe such a system as one that “typically includes hurricane tidal barriers, dams, reservoirs, levees or dikes. These specialized flood modifying works are those constructed in conformance with sound engineering practices.” Specifications for such systems are described in some detail in the regulations.¹⁴⁶ The levee system protecting much of New Orleans apparently was designed to be such a system, as were the levee systems near St. Louis described below. With an approved system in place, the protected area is not in an SFHA, and neither flood insurance nor flood plain management regulations (such as elevating a building) is required.

b.Qualifying for Flood Insurance

The most important part of the required regulations is that after adoption of the FIRM for a SFHA, new structures, substantially improved structures, and structures repaired after “substantial damage” must be elevated so the lowest floor is at or above the Base Flood Elevation. “Substantial” improvement or damage means that the cost to improve or cost of restoration equals or exceeds 50% of the market value of the structure (i.e., excluding land value) before the damage or start of construction. A variety of other requirements are included in the regulations regarding construction methods for residences, to prevent flotation or collapse and to minimize flood damage. The application of the requirement that substantially-damaged structures be elevated to the area damaged by the 2005 hurricanes is discussed below.

Construction of new buildings and repair of substantially-damaged structures in a Coastal High Hazard Area face additional requirements. The bottom of the lowest horizontal structural member of the lowest floor must be at or above the Base Flood Elevation. Rather than using fill, the structure must be elevated on pilings and columns, with the structure, piles and columns anchored to resist flotation, collapse and lateral movement.¹⁴⁸ Improvements in portions of the building below the Base Flood Elevation must permit the passage of water during a flood. Accordingly, the space below the lowest floor must either be free from obstruction or be constructed with non-supporting breakaway walls, open wood lattice work or insect screening intended to collapse under wind and water loads without causing collapse, displacement or other structural damage to the building or its foundation. ¹⁴⁹

Developers of non-residential structures can choose either to elevate or to “dryfloodproof” the building, which refers to designing the building such that “below the base flood level the structure is water-tight with substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.”¹⁵⁰

c.When Flood Insurance is Required

Owners of structures with no mortgages or those who receive financing from lenders not regulated by the federal government are not required to purchase flood insurance even if their property is in a special hazard area and their community participates in the flood insurance program.¹⁵³

d.Issues facing the NFIP

One major cause of NFIP’s financial woes is that NFIP makes subsidized flood insurance available to owners of buildings built before its community FIRM was prepared and flood insurance under the program was required.¹⁵⁶ These properties receive insurance at subsidized rates that do not reflect the flood risk facing them. Currently, about 29% of the $4.4 million policies in force are subsidized, which means that the program takes in about $500 million per year less in premiums than it would if all policies were based on the actuarial tables. Second, the program suffers because of claims from "repetitive loss properties" (discussed below). The costs associated with repetitive loss properties is driven up because these properties are damaged repeatedly, but often not beyond 50% of the pre-damage market value and, thus, they do not trigger the requirements imposed on structures that are “substantially damaged.”¹⁵⁷ Although repetitive loss properties represent only about one percent of the 4.4 million properties insured under the NFIP, they are responsible for about 38% of all claims historically and $200 million dollars in claims annually. Fifteen states account for 90% of the total payments made for repetitive loss properties, and over half of all repetitive loss property insurance payments were for properties in Texas and Louisiana. The total cost to NFIP from repetitive loss properties has been about $3.8 billion.¹⁵⁸

A type of development that can cause flood maps to be outdated is improvement to a flood control system. One common response to the Great Midwest Floods of 1993 has been to improve the levees that protect natural flood plain areas so they are designed to protect against a more serious flood. Many areas along the Missouri River that flooded in 1993 were “protected” by 100-year levees that failed, whereas nearby areas protected by 500-year levees did not flood. As a result, more and more of the communities have sought to rebuild or reconstruct the levee to the 500-year (or even 1000-year) level. Two consequences of improving a downstream levee can be to cause higher levels of flood water upstream, and to increase the velocity of the flood water flowing downstream, both of which can undermine the validity of the ratings used for the upstream levees. For example, a levee formerly rated as one protecting against a 100-year flood may lose that rating if a downstream levee will cause water to back up upstream, causing water levels higher than those previously included in the 100-year flood plain level. Also, it is common for lands protected by a 100-year or higher levee to be removed, on request, by FEMA from a Special Flood Hazard Area altogether, under the reasoning that once the levee is built and certified, the land protected by that levee is no longer considered to be subject to a one percent risk of flooding within a calendar year. Improvement of downstream levees (causing backups of water) may invalidate this reasoning.

In response to this problem, several years ago FEMA embarked on a billion dollar map modernization program.¹⁶⁵ The program’s goals are to update the country's flood maps by 2010 and convert all maps into a global information system format that will be available online.¹⁶⁶ Modernization, although necessary, likely will cause a political firestorm between state and federal officials, as exemplified by FEMA's recent release of 228 new advisory maps for the coastal region of Mississippi. According to a New York Times article, “when pieced together [the maps] make up the entire 80 miles of Mississippi Coast and reach as much as 22 miles inland. These maps represent the biggest simultaneous proposed expansion of the federally defined flood zones” in the NFIP’s history. Officials in Gulfport questioned why the new maps would more than double the number of structures in the 100-year flood zone, to 6,233. Because the maps are only “advisory” until FEMA confirms their accuracy, which could take up to a year, local officials have to decide whether to adopt the new advisory maps now or wait until they become final, at which time they must require that new construction meet the NFIP standards noted above or lose federal flood insurance. Several elected officials already have decided not to adopt the advisory maps and have permitted residents to rebuild. Those homeowners who do so in compliance with the existing maps will be eligible for flood insurance, despite the risk of loss from the next hurricane.¹⁶⁷

FEMA also is revising the flood maps for Louisiana. Lack of current flood maps slows rebuilding because many landowners will not know until the maps are completed if their properties are within the area of a 100-year flood and must be elevated above the Base Flood Elevation. Part of the process will be determined by the design of reconstructed or improved levees; that design apparently is still being considered at this writing. FEMA officials estimated that revised maps for Louisiana would be completed by March, 2006.¹⁶⁸

2.“No Adverse Impact” Flood Plain Management

FEMA's regulations setting criteria for local flood plain management requirements note that the criteria are minimum standards, and that a community may adopt more comprehensive flood plain management regulations utilizing standards also included in the FEMA regulations.¹⁶⁹ The Association of State Floodplain Managers ("ASFPM") has proposed an approach called “no adverse impact flood plain management.” As described in a paper available on the ASFPM website, “no adverse impact flood plain management is where the action of one property owner is not permitted to impact adversely the rights of other property owners, as measured by increased flood peaks, flood stage, flood velocity, and erosion and sedimentation, unless the impact is mitigated in accordance with an approved community plan.”¹⁷⁰

The ASFPM paper notes that flood damages have continued to increase and now approach $6 billion annually, even though billions of dollars have been spent for structural flood control improvements such as levees, dams and other measures. It states that development continues to occur within watersheds and flood plains, causing greater risk of damage to structures because of the actions of others in and around flood plains. The paper claims that current national flood plain management standards allow flood waters to be diverted to others, essential valley flood water storage to be filled, and flood water velocities to be changed with little or no regard as to how these changes affect others in the flood plain and watershed. The result is to intensify damage potentials in the nation’s flood plains.

The solution suggested by the ASFPM is community adoption of flood plain management plans that require no adverse impact on others from development in a flood plain. There are detailed suggestions in a "toolkit" that also is available on the ASFPM website.¹⁷¹

One of the suggestions of the ASFPM is that residences, and perhaps entire communities, should be relocated from a flood plain to higher and presumably safer ground. This was done in Illinois after the 1993 floods. The town of Valmeyer, Il. was located in the flood plain of the Mississippi River, south of St. Louis. The town had been flooded three times in the early 20^th Century, but thereafter levees protected it until the floods of 1993, when it was flooded again. The community was relocated from the flood plain to a new site on the bluffs, about two miles to the east and 400 feet higher. It now has grown in population to 1,100, as compared to its pre-flood population of 900. The relocation was assisted by the Federal Government, as part of its efforts to reduce claims under the NFIP.¹⁷² The same suggestion has been made with respect to some coastal communities along the Gulf Coast, which is discussed further below.

3.Constitutional Issues

Zoning in flood plains and coastal areas that limits or prohibits development frequently raises the issue of whether a “regulatory taking” has occurred, entitling the property owner to just compensation. A recent paper prepared for the ASFPM argues that courts usually will uphold such zoning, particularly if the zoning is based on the theory that the development should cause no adverse impact on other properties, and if the landowner is not denied all economic use of the property.¹⁷³ The paper notes that zoning and building code requirements necessary to obtain flood insurance under the minimum standards of the National Flood Insurance Program often are upheld, as are regulations that are more restrictive. The series of “takings” decisions by the U.S. Supreme Court since Penn Central and Agins¹⁷⁴ clearly established that limits to regulation exist under the Fifth Amendment. Several of the decisions dealt with flood plains or coastal properties: Palazzolo concerned wetland restrictions, Dolan invalidated regulations requiring dedication of a bike path in a flood plain as a condition to improving a property, Lucas held that regulations that prohibit any reasonable use of a beach-front lot was a taking, Nollan invalidated a required dedication of an easement to the beach and First English held that a regulation prohibiting construction in a flood plain could be a temporary taking.¹⁷⁵

Those Supreme Court cases and others led to uncertainty in applying constitutional standards to land use regulations. The uncertainty was reflected in the 4-3 decision of the New York Court of Appeals in Smith v. Town of Mendon,¹⁷⁶ which considered a zoning regulation requiring that a conservation easement be dedicated on a portion of a 9.7 acre lot as a condition to construction of a house. The court decided that it did not have to consider whether the regulation violated the “rough proportionality” test of Dolan because it was not an “exaction” under the Supreme Court’s opinion in City of Monterey v. Del Monte Dunes at Monterey, Ltd.¹⁷⁷ Instead, the court applied the Agins test of whether the regulation substantially advanced a legitimate state interest, and found that it did. The court upheld the regulation, noting that the regulation did not appreciably diminish the value of the entire 9.7 acre parcel. Two dissents were filed; one dissenter wrote that the regulation was invalid under Nollan and Dolan, while the other said that the regulation was a taking under the Agins standard.

The Supreme Court clarified somewhat the takings jurisprudence five months after the Smith decision in Lingle v. Chevron U.S.A. Inc. A unanimous Court held:

“[T]he ‘substantially advances’ formula [of Agins] is not a valid takings test, and . . . it has no proper place in our takings jurisprudence. In so doing, we reaffirm that a plaintiff seeking to challenge a government regulation as an uncompensated taking of private property may proceed under one of the other theories discussed above--by alleging a "physical" taking, a Lucas-type "total regulatory taking," a Penn Central taking, or a land-use exaction violating the standards set forth in Nollan and Dolan.” ¹⁷⁸

(The Penn Central test involves analyzing several factors, particularly the economic impact of the regulations.)

The Lingle formulation was applied two months after that decision by a unanimous decision of the Massachusetts Supreme Judicial Court in Gove v. Zoning Board of Appeals of Chatham.¹⁷⁹ The plaintiff and her family had owned an undeveloped lot located within the 100-year floodplain in the Cape Cod town of Chatham since 1926. In 1985, the town placed all of the land within the 100-year coastal flood plain in a “conservancy district,” prohibiting all residential uses but permitting certain non-residential uses, such as fishing, agriculture, outdoor recreation, and various marine-related or visitor-serving uses, such as boathouses, roadside stands, and structures for marinas and boatyards. In 1998, the owner contracted to sell the lot for residential development, subject to the ability to obtain permits to construct a house. The town denied the permit.

In determining that it was not a regulatory taking, the court found that the zoning met three Supreme Court tests. Instructed by Lingle, the court did not apply the Agins “substantial advances” test but instead found that there was evidence showing that the regulations were related to a legitimate state interest. Second, despite a reduction in value from $192,000 to $23,000, according to the owner’s expert, the court found the facts to be similar to those in Palazzolo because the zoning did not deny all economically beneficial use of the property. The court noted that the owner’s expert did not even consider the non-residential uses of the property permitted under the zoning in arriving at the valuation. Third, the court agreed with the trial judge that the owner “failed to show that the conservancy district regulations had a substantial ‘economic impact’ on her or deprived her of distinct investment-backed expectations’,”¹⁸⁰ referring to the test of Penn Central.

The Gove decision lends support to the conclusions of the ASFPM paper referred to above, that regulations based on flood plain maps and permitting some use of the affected property will withstand constitutional challenge.

4.Reconstruction After Katrina and Rita

a.New Orleans

Planning for the reconstruction of the City of New Orleans has generated much debate and controversy, and was far from complete as of this writing. The debate centers on whether the hardest-hit areas should be rebuilt. Many of the older parts of the city were built on higher ground and suffered less damage from flooding. On the other hand, many areas of the city were built on lower-lying land and suffered significant damage. In many cases, the force of water from collapsing levees completely destroyed buildings. Adding to the issues, many of the most heavily-damaged neighborhoods also were relatively poor areas.

New Orleans Mayor Ray Nagin appointed the “Bring New Orleans Back Commission” to develop a comprehensive reconstruction strategy by the end of 2005. Seventeen persons representing various parts of the community were appointed to the Commission. The press release announcing the appointment stated that the mission of the Commission is to “work with the mayor to create a master plan by the end of the year that rebuilds New Orleans culturally, socially, economically, and uniquely for every citizen.”¹⁸¹

Redevelopment Plans. One of the tasks of the Commission is to plan for the reconstruction of New Orleans. As it developed, various groups of experts became involved and the plans proposed became quite controversial. The issue is whether all of the city would be reconstructed or only a portion of it, reflecting predictions that the population of New Orleans would be significantly smaller than before Katrina.

The Commission invited the Urban Land Institute (“ULI”) to propose a plan to restore the city. According to its press release, the ULI appointed a panel of 50 members, described as specialists in urban and post-disaster development. ¹⁸² After extensive work by the panel and ULI staff, the ULI recommended a variety of steps in its draft report, “A Strategy for Rebuilding New Orleans, Louisiana.”¹⁸³ These included creating a temporary financial oversight board, creating a rebuilding corporation, pursuing economic development, reforming the city’s tax base and taking a regional approach to a number of issues. Regarding reconstruction, the report recommended that the city be rebuilt in three phases, based on a division of the city into three zones, based on the extent of damage.

The ULI Report recommended that redevelopment of the worst-damaged areas of the city be deferred until studies were conducted regarding such matters as safety, environmental hazards and suitability for redevelopment. It suggested that some of this portion of the city should not be rebuilt, but instead retained as open space. In general, the areas are the lowest-lying areas, which also were predominantly African-American neighborhoods. The Report recommended that a second area of the city, which suffered comparatively little damage, could be rebuilt immediately, including the French Quarter, the downtown area, and much of the Garden District. The remainder of the city consisted of areas that suffered significant flooding, but where redevelopment could proceed on a block by block basis, to avoid the problem of scattered redevelopment. The recommendations received strong criticism, particularly from City Council members who represent the areas with the worst damage, such as Eastern New Orleans, the Lower 9^th Ward and Gentilly, and who thought reconstruction of those districts should not be delayed.¹⁸⁴

The Commission appointed by Mayor Nagin released plans on various subjects during January, 2006. The proposal concerning reconstruction was issued on January 11, 2006. In many respects, the proposal echoed the ULI proposal. It envisioned a smaller city, of perhaps 250,000 residents by 2008, and a smaller footprint for the city. It recommended that areas with relatively light damage proceed with reconstruction, but that the city impose a four-month moratorium on issuing building permits in the heavily-damaged areas, which constitute most of the city. During that time, city residents would participate in a planning process to determine if these neighborhoods would attract a sufficient population to warrant investment in city services and facilities. Those areas that did not warrant redevelopment would be purchased by a new redevelopment agency using federal funds. Various areas of the city would be preserved as open space or redeveloped in large, mixed-income and mixed-use developments. The proposal estimates that the cost of rebuilding would be more than $17 billion, with $12 billion devoted to buying out residents. Another $3.3 billion would be used for new light-rail transit lines serving the city.¹⁸⁵

The immediate reaction to the proposal was mixed and only beginning to be voiced as this paper was completed. Many objected to the proposed building moratorium; others applauded community-based planning for the areas devastated. Some suggested it was a “land grab” for developers.¹⁸⁶ Obviously, plans for the reconstruction of New Orleans are a work in progress. The ultimate shape of the city may well be a function of funding provided by federal and other sources to purchase residential areas for conversion to open space, the delineation of the 100-year flood plain on FEMA’s flood plan maps, and the extent of reconstruction of the levees.

Levee Systems. Most parties seem to agree that reconstruction of the levee system protecting New Orleans is a key part of the reconstruction of the city. Although Katrina was downgraded in late December, 2005, to a Category 3 hurricane when it came ashore,¹⁸⁷ it managed to breach several levees in and around New Orleans. Various persons have called for reconstruction of the levees to a level sufficient to withstand a Category 5 hurricane, one with winds in excess of 155 miles per hour and a storm surge greater than eighteen feet. The cost of such a project, together with changes to the system of drainage canals and pumps and restoration of wetlands and sea gates, has been estimated at $32 billion.¹⁸⁸ In late 2005, the Congress passed a relief package for the Gulf Coast, which included $2.9 billion for levee repair. It was suggested that this funding would provide protection for New Orleans from a Category 3 hurricane. No commitment had been made as of this writing from the federal government to improve the levee system to Category 5 protection.¹⁸⁹

b.Coastal and Flood plain Issues

Examples of the application of the flood plain management requirements of the National Flood Insurance Program and other approaches to mitigation of the impacts of future floods can be found throughout the regions affected by the 2005 hurricanes. Kenner, La. is one example. Kenner was the first Louisiana city to receive a report from FEMA regarding which houses must be elevated to comply with NFIP standards. According to the FEMA report (still not finalized), of 2,800 homes in the two subdivisions that suffered the most damage, 415 must be elevated. Of all residential structures surveyed, approximately 1 in 6 suffered "substantial damage," that is, damage equal to 50% or more of its market value. However, even those homes that are not required to be elevated still may not be able to obtain flood insurance. If the substantially damaged homes in Kenner are not elevated, FEMA could prevent the entire city of Kenner from participating in the NFIP, including those homes that do not require further elevation. Many residents expressed concern over the cost of raising their homes, reported to be $50,000 to $60,000 per house.¹⁹⁰

Many have suggested that the risks from floods be mitigated by purchasing the properties of those living in flood-prone areas and relocating the residents to safer ground. Valmeyer, IL is an example of the relocation of a town, as noted above. This concept is part of the recovery plan for New Orleans. The same idea has been advanced for coastal communities in Cameron Parish in southwestern Louisiana. The suggestion is that perhaps 4,000 persons in several towns and villages should be relocated to higher ground 15 or 20 miles inland.¹⁹¹ It has also been suggested that the $1 billion in federal disaster aid available in Mississippi could be used in part to buy the homes of owners who live in extremely flood prone locations, particularly those areas that were devastated by Hurricane Camille in 1969.¹⁹²

Louisiana has sought to minimize coastal flood and wind damage risks through legislation, by adopting a “State Uniform Construction Code” in November, 2005.¹⁹³ The state Code adopts many parts of the International Building Code and the International Residential Code. The legislation created the Louisiana State Uniform Construction Code Council to educate and certify the building officials who will enforce the standards. The International Code Council publishes the standards that will serve as the foundation of the Louisiana statewide codes. Among other things, the code requires homes in eleven parishes along the Gulf Coast to be built to withstand winds of 130-150 miles per hour by adopting the wind and flood mitigations requirements prescribed by the 2003 International Building Code and 2003 International Residential Code. The code will apply to those homes and businesses that suffered damage over 50% of the market value of the structure from wind or flooding and require rebuilding. It exempts fishing or hunting camps unless they are used as a main residence.

In another effort to integrate the various state programs for coastal and hurricane protection, the Louisiana Legislature adopted an act authorizing the development and implementation of a comprehensive coastal and wetlands protection plan, including hurricane protection. In addition to this plan, the Coastal Protection and Restoration Authority created by the act must prepare an annual coastal protection plan, working with other state and federal agencies, to be approved by the Legislature.¹⁹⁴

5.Reconstruction in Missouri After the 1993 Floods

The 1993 Floods caused extensive flooding in the St. Louis area, which is located at the historic¹⁹⁵ confluence of the Missouri and Mississippi rivers, two of the major river systems located in North America. The flooding of the Missouri River caused a breach in the 100-year levee that protected the Chesterfield Valley area in suburban west St. Louis County, causing flood depths in this commercially-developed area to reach fifteen feet in some locations. In the twelve years that have elapsed since the 1993 floods, these same areas of Chesterfield Valley are now the site of over $2.2 billion in new real estate development. One of these developments, described as the longest outdoor strip mall in America and featuring Sam’s Club, Wal-mart, Target and Home Depot stores, is the mile-long Chesterfield Commons. Additional commercial development is slated for this area.¹⁹⁶ This development was made possible by the reconstruction and improvement of the breached 100-year levee into a new levee that is now designed to withstand a “500-year flood.”

Chesterfield lies on the east bank of the Missouri River, in west St. Louis County. The development in Chesterfield Valley all occurred under the Chesterfield flood plain zoning ordinance amendments adopted in 1995 that seem to comply with the FEMA requirements under the NFIP.¹⁹⁷ New development must have its lowest level one foot above the base flood elevation (the “100-year flood”) as shown on FEMA flood plain maps. New construction must be designed to prevent flotation, collapse and lateral movement of the structure. Fully enclosed areas below the lowest floor must permit flood water to enter and exit. Of course, once the repairs to the 100-year Chesterfield Valley levee were made, the land within the area protected by the levee could meet this requirement.

St. Louis County’s zoning code (which only applies in unincorporated areas of the county) takes a somewhat different tack to construction in the flood plan. It has adopted overlay zoning for the flood plain, which is in addition to the underlying zoning. Uses are limited to agriculture and various commercial uses that would not be greatly harmed by flooding. No residential building is allowed within twenty-five feet of any flood plan district. However, property can be developed in accordance with the underlying zoning (which apparently includes residential development) if the property is removed from flooding based on the FEMA maps, the plan will adequately protect the property during the “base flood” (i.e., the 100-year flood), and the plan will not increase the flooding problems of other properties.¹⁹⁸

Although hydrologic pressure created by the 1993 floods actually caused the levee system protecting the Chesterfield Valley area to fail, the flooding levels reached high enough elevations that would have overtopped the 100-year levee, so the Chesterfield levee would have been overtopped even if it had not failed.¹⁹⁹ Following the recession of flood waters, officials in Chesterfield decided, with widespread community support and only nominal opposition, to restore the flood plain for commercial development by repairing and rebuilding levees that took the area along the Missouri River out of the 100-year flood plain. Taking note of the fact that the 500-year levees and flood walls had successfully protected flood plain areas in St. Louis County and in the City of St. Louis, officials were determined not only to repair the 100-year levees, but also to build levees designed to withstand a 500-year flood, or one with a one-in-500 probability of occurring in any calendar year. An area of approximately 4600 acres was enclosed by levees running from the river bluffs (the edge of the natural flood plain) to the river. The 100-year levee reconstruction effort initially was started using funds generated by a tax increment financing (“TIF”) district supported solely by incremental local sales taxes and property taxes. Subsequently, federal funds were secured to raise the levee level to the 500-year levee rating. Local officials cited the need to protect a major federal highway that traversed the Chesterfield Valley and the need to protect the primary reliever airport for the St. Louis area located in the Chesterfield Valley, which also serves as the primary regional airport serving the private airplane fleets of some of the major corporations located in the St. Louis region. The developer of the Chesterfield Commons shopping center also pledged $29 million in upfront money, reimbursable by the TIF district, to begin the project. The tax increment district has been generating more money than needed to pay off the TIF bonds sold to provide construction funds for the nonfederal components of the levee reconstruction project. The new levee improvements sparked extensive commercial and retail construction in this area, which is still being expanded.

The success of the Chesterfield Commons project stimulated a desire by other nearby communities also having large tracts of land within the flood plains of the Missouri and Mississippi rivers to undertake similar developments behind new, improved levees, generating controversy in Missouri. Immediately downstream from Chesterfield Valley along the Missouri River, the Howard Bend Levee District has improved its levee that was overtopped in 1993 by the Missouri River. The Howard Bend levee protected primarily farmland and has been upgraded from a former 100-year levee into a new 500-year levee, with ambitious designs to convert the area into a commercial, high-rise district. Also seeking to replicate the levee project in Chesterfield Valley, St. Peters, Mo., in St. Charles County, bordering the Mississippi River northwest of its confluence with the Missouri River, is building a similar levee to protect 1,900 acres of land on the north side of the city along the Mississippi River. A citizens group filed litigation in federal court to halt the project, but a motion for a preliminary injunction was denied. The project envisions $75 million in tax increment financing, to be used to acquire the land, construct the levees and build roads and infrastructure. The developers anticipate a mix of light industrial, retail, office and entertainment uses. ²⁰⁰

Construction of new levees protecting against a 500-year flood has been criticized by some as only adding to floods elsewhere along the river system and increasing the velocity of the flood waters along the improved levees. According to these critics, the flood plains are the natural, necessary relief valve for the floods that are inevitable. By increasing the height of the levees and preventing flood waters from spreading out and dissipating over the larger flood plain area downstream, the constricted passage of the flood waters through the levee systems will cause backups to occur and exacerbate upstream flooding. Further, by raising the height of the levees, the velocity of the flood waters being discharged downstream will increase, causing more dangerous conditions downstream. While there are the expected disagreements about the exact nature of the upstream and downstream effects of adding new levees or increasing the height of the existing levees, most knowledgeable observers agree that these effects do exist. There is general agreement that failure of the Chesterfield levee in 1993 relieved flooding pressure downstream along the City of St. Louis flood wall on the Mississippi River, and the failure of levees on the Illinois side of the Mississippi River, downstream from Hannibal, Missouri and from St. Louis, appear to have been the events that finally caused the continually rising flood waters to abate, just as those cities’ levees and flood walls were about to be breached.

6.Pacific Coast Tsunamis

In contrast to the frequent and occasionally catastrophic disasters from hurricanes and river flooding discussed above, tsunamis may be the epitome of the rare but potentially catastrophic event. While usually triggered by earthquakes, tsunamis may be triggered by other events that cause a deformation of the floor of the sea or seacoast, such as landslides and volcanic eruptions. The example of the December 26, 2004 tsunami is unforgettable.

The 2004 tsunami led to a study of the threat to California by the California Seismic Safety Commission, which released a report in December, 2005.²⁰¹ Its findings apply to the entire Pacific Coast and Hawaii. In brief, all of the lands bordering the Pacific Ocean are at risk from tsunamis. The great 1960 Chilean earthquake created a tsunami that affected the entire Pacific basin. Damage was reported in California ports from San Diego north to the Oregon border, totaling about $1 million. The tsunami from the 1964 Alaska earthquake caused significant damage in Alaska and additional damage along the coast down to Northern California.

While construction of an adequate tsunami warning system may be the first priority, a few key land use and building code issues are worth noting. First, coastal areas subject to tsunamis should be mapped. The suggestion applies particularly to major ports and their support areas, since the tsunami waves can be tens of feet high, as was experienced in 2004 around the Indian Ocean. Second, there appears to be disagreement over whether building codes should be developed to make buildings resistant to such huge waves. Oregon and Washington are developing building code requirements for structures in tsunami zones, as has the City of Honolulu. On the other hand, the FEMA Coastal Construction Manual (FEMA 55) suggests that it is not practical to design "normal" structures to withstand the loads caused by tsunamis. The Seismic Safety Commission's report finds that building codes do not adequately address the impact of tsunamis on structures, and the available maps are not adequate and should be improved.

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