Federal Involvement in Flood Response and Flood Infrastructure Repair: Hurricane Sandy Recovery
Released: 2012-11-05T00:00:00

In late October 2012, Hurricane Sandy developed into a large weather system affecting both coastal and interior portions of the East Coast, including major population centers like New York City and smaller centers like Atlantic City, NJ. In addition to the wind damage and electricity disruptions to 8 million customers in the Northeast, the storm's surge damaged public and private property and infrastructure in coastal and inlet areas, while the storm's precipitation swelled rivers and creeks. Although the storm was not notable for its wind intensity, the storm's significant size, its unusually low atmospheric pressure, and the astronomic high tide combined with other weather systems to amplify coastal, river, stream, and local flooding. This flooding disrupted transportation, business, and government operations and created public safety concerns that necessitated voluntary and emergency evacuations.

The Federal Emergency Management Agency (FEMA) has extensive authorities to assist with emergency actions and recovery efforts from hurricane and flood damage. In implementing the federal response FEMA can assign missions to numerous other federal agencies. The U.S. Army Corps of Engineers (hereinafter referred to as the Corps) has been actively working on emergency engineering missions related to infrastructure using its power engineering and dewatering expertise. In addition to its FEMA assignments, the Corps has its own emergency response authority and a program to assist with repairs of eligible hurricane protection and flood control projects. While availability of funding is unlikely to interfere with near-term emergency response activities in the case of federal response and recovery programs without significant existing balances, federal funding for these programs may become an issue. This is the case for the Corps' flood and hurricane project repair program.

As recovery proceeds, Congress may be faced with questions about the efficacy of current federal approaches and participation in hurricane protection (and the relationship of these issues to mandatory flood insurance) and a reevaluation of how federal programs and policies influence coastal development. As decision makers evaluate options for how to manage the Atlantic Coast's coastal flood hazard, it is important to distinguish between the frequency of a storm with particular characteristics and the frequency of a storm surge height or other coastal flood hazard for a specific location. That is, while probability of another storm just like Sandy is unlikely, the likelihood of coastal communities seeing storm surges and flooding hazards like those experiences with Hurricane Sandy is much higher.

This report first provides a primer on federal flood policy. The remainder of the report describes the federal role in emergency flood response and post-disaster repair and rehabilitation of flood protection measures. This report will help answer the following questions: Which federal programs can assist with floodfighting? Which federal programs can assist with repairing damaged dunes, levees, and flood control works? What are the flood policy and funding issues that may arise during recovery from Hurricane Sandy?

Federal Flood Policy: A Primer3

Shared Flood Responsibilities

In the United States, flood-related responsibilities are shared: local governments are responsible for land use and zoning decisions that shape floodplain and coastal development, while state and federal activities influence community and individual decisions on managing flood risk. State and local governments largely are responsible for making decisions (e.g., zoning decisions) that allow or prohibit development in flood-prone areas. Local and some state entities construct, operate, and maintain most flood control measures such as levees, floodwalls, coastal dunes, and seawalls.

Federal Role and Agencies

While local and state entities maintain primary flood responsibilities, the federal role is significant. The federal government constructs many levees, floodwalls, and coastal dunes in partnership with local project sponsors; local entities, however, are fully responsible for operation and maintenance. The federal government also supports hazard mitigation, offers flood and crop insurance, and provides emergency response and disaster aid for significant floods. Dams that can serve flood control purposes have a wider variation in their ownership and operational responsibilities, with the federal government having a primary role in many of the larger dams.

The principal federal agency involved in federal flood management investments and activities and flood-fighting is the U.S. Army Corps of Engineers. The Federal Emergency Management Agency (FEMA) has primary responsibilities for federal hazard mitigation, the National Flood Insurance Program (NFIP), and disaster assistance. In addition to the Corps floodfighting authorities, the Corps has a program to repair damaged levees, dams, berms, and other flood control works. Post-Sandy demand for such repairs is likely to be extensive. A near-term issue for actions under the Corps authorities is that their funding is often appropriated through emergency supplementals.

Other federal agencies also are involved with flood-related activities, such as the U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS), the Department of the Interior's Bureau of Reclamation, the Tennessee Valley Authority, and the International Boundary and Water Commission. Also, crop insurance and agricultural disaster assistance for flood damages is administered by the U.S. Department of Agriculture. Other agencies, such as the U.S. Geological Survey and the National Weather Service, provide data used in assessing flood risk.

Status of Federal Flood Policy

Since Hurricane Katrina in 2005 and compounded by concerns over the federal debt, interest has increased in reducing the federal flood response's reliance on emergency supplementals, reevaluating the roles and divisions of flood responsibilities, addressing gaps in investments and poorly addressed flood risk, and improving the incentives influencing decisions in flood-prone areas. In July 2012, the 112 th Congress enacted, as part of MAP-21 ( P.L. 112-141 ), an extension and a number of modifications to FEMA's National Flood Insurance Program through September 30, 2017. Beyond the NFIP reauthorization, Congress has changed little in the federal flood policies and programs since 2005.

Flood Risk

Hurricane Sandy was a reminder that, although forecasting and emergency response have improved over time and investments have been made in flood and hurricane risk reduction measures, significant flood risk remains. Significant storms can cause flooding in areas that are outside the 100-year floodplain (i.e., the area with a 1% probability of flooding annually) or cause storm surges that have a low probability of occurring but cause extensive damages. Significant storms can produce flooding that exceeds the ability of levees, floodwalls, seawalls, and dunes to protect the lives and investments behind them.

Hurricane Sandy, like Hurricane Katrina, demonstrated that not only property damage but also significant risks to life, economic disruption, and other social hardships occur during floodwaters and storm surge. Flood risk is a composite of three factors:

threat of an event (e.g., probability of a 10-foot storm surge in New York City); vulnerability , which allows a threat to cause consequences (e.g., level of protection provided by levees and dams, their reliability, and location within a floodplain or on a coast); consequence of an event (e.g., property damage, loss of life, economic loss, environmental damage, reduced health and safety, and social disruption).

Generally, flood risk grows with more development and population in flood-prone areas. A range of options are available for reducing this risk, but some level of flood risk will always remain. Ex-post analysis of Hurricane Sandy will help inform understanding of how the storm's surge and flood hazard compared to previous storms and how they compare to models of future conditions, including under climate change scenarios. Significant debate continues about whether hurricane threats to the United States are changing; treatment of this topic is beyond the scope of this report.

Flood Control Projects: Federal Emergency and Post-Disaster Roles and Activities

Responsibilities Shared Between Federal Agencies

The two principle agencies involved in flood control projects, repair of those projects, and flood fighting are FEMA and the Corps, as shown in Table 1 . The Corps performs considerable flood control construction and damage repair. In contrast, FEMA's role in flood control projects is more limited, but its role is significantly broader in coordinating overall federal activities that assist states, communities and individuals with emergency flood response and recovery.

FEMA: Emergency Flood Fighting

The Stafford Act (42 U.S.C. 5170b) authorizes FEMA to direct the Department of the Defense (including the Corps) and other federal agencies to use its resources to provide assistance in the event of a major disaster or emergency declaration by the President. When a disaster occurs and a state is granted federal disaster assistance under the Stafford Act, funding under the Public Assistance program may be available to reimburse communities for flood-fighting activities and emergency repairs made to eligible infrastructure. Generally, Public Assistance program funds are limited to restoring a structure to its pre-disaster condition; projects to construct new flood control measures or enhance existing measures are not eligible. Because of Hurricane Sandy's significant damage to hurricane protection projects that use dunes and other sand-based measures and other types of beach damage and shore erosion, FEMA's policies regarding which activities are eligible for some types of disaster and recovery assistance is receiving particular attention.

Corps: Flood Control and Coastal Emergencies Authorities

In P.L. 84-99 (33 U.S.C. §701n), Congress gave the Corps emergency response authority that allows the agency to fight floods and other natural disasters. In this same law, Congress also gave the Corps the authority for a program to repair damaged flood control works. Both of these activities are discussed below in more detail. Limited appropriations for these Corps activities generally are included in the annual Energy and Water Development appropriations acts as part of the agency's civil works budget (e.g., $0 in FY2011 appropriations, $27 million in FY2012 appropriations) in the Corps' Flood Control and Coastal Emergencies (FCCE) account. Congress generally appropriates the majority of FCCE funds through emergency supplemental appropriations, ranging from significant funding following Katrina to no funds in some years. In the last decade, these activities have received $12 billion; the vast majority of these funds went to congressionally directed work on reengineering and reconfiguration of Hurricane Katrina-damaged floodwalls and levees in Southeast Louisiana.

After flood disasters, it is often not only the Corps' FCCE account that receives supplemental funding; Congress also has appropriated funds for the agency's construction and operations and maintenance accounts to construct new works (e.g., new levee projects) or repair other works (e.g., navigation channels) after major flood disasters. In total, the Corps has received roughly $25 billion in supplemental funding since 2001. The reliance on significant supplemental funding for Corps work is raising questions about alternative ways to fund these activities and whether there are opportunities through the annual appropriations process.

Emergency Response

As previously noted, Congress gave the Corps specific emergency flood authorities in P.L. 84-99. Congress authorized the Corps to conduct disaster preparedness, advance measures, and emergency operations (disaster response and post-flood response), emergency dredging, and flood-related rescue operations. These activities are limited to actions to save lives and protect improved property (i.e., public facilities and services, and residential or commercial developments). Congress has also authorized the Corps to provide this emergency response assistance for up to 10 days following an emergency and before a presidential declaration of an emergency.

Repair of Flood Control Projects

The Corps is the principal agency that assists with repairs to damaged flood control works, like dams, levees, and dunes. These repair and rehabilitation activities are undertaken after the peak of a flood event has occurred and the extent of damage from the flood event can be determined.

Funding for Repairs

Through its Rehabilitation and Inspection Program (RIP), the Corps provides for rehabilitation of damage to flood control projects and federally constructed hurricane or shore protection projects and related inspections. The program's repair of damaged facilities following large flood events has historically been funded largely through emergency supplementals. For smaller RIP repairs, the Corps often attempts to fund repairs within its existing funding. For example, in December 2011, the program received $388 million for repairs mainly associated with 2011 Midwest flooding as part of the Disaster Relief Appropriations Act, 2012 ( P.L. 112-77 ), and in 2008, the program received $740 million largely for repairs in response to Midwest flooding through the Supplemental Appropriations Act, 2008 ( P.L. 110-252 ). At times, some eligible repairs have been delayed due to limitations on the availability of funds.

Eligibility and Cost-Share for Repairs

To be eligible for rehabilitation assistance, the flood control project must be in active status with the RIP program at the time of the damage by wind, wave, or water action that is beyond ordinary. The following types of works are eligible for inclusion in RIP:

non-federally or federally constructed, locally maintained levees and floodwalls; and federally authorized and constructed hurricane and shore protective measures (e.g., dunes, berms, and sacrificial beaches).

For locally constructed projects, the cost to repair the damage is paid 80% by the Corps and 20% by the nonfederal entity. For federally constructed projects, the repair cost is entirely a federal responsibility (except for the costs of obtaining the sand or other material used in the repair). Many of the hurricane protection projects damage by Hurricane Sandy were federally constructed.

For RIP assistance, the repair must have a favorable benefit-cost ratio; this calculation does not include recreation benefits, which may be significant for some coastal projects. Rehabilitation assistance is limited to repair or restoration of the project to its pre-disaster level of protection; no betterments or levee setbacks are allowed. Nonfederal entities are required to assume any rehabilitation cost of damage to an active project that is attributable to deficient maintenance. For hurricane storm damage reduction projects, actions eligible for RIP must address an issue critical to the functioning of the project. Depending on the condition of the measure and the timing, nourishment may be planned for immediately as part of a RIP effort or it may occur later as part of the regular nourishment of the project.

Improvements Beyond Repairs

A common issue that arises under RIP (as well as for FEMA mitigation programs discussed later) is interest in not only repairing levees but also improving them. Congress expressly restricted RIP funds to repair. The program is not designed to evaluate the federal interest in investments to further reduce the flood risk at a location.

If federal participation is sought to increase protection, the typical route would be to pursue a study by the Corps to initiate a separate flood damage reduction project. Historically, Congress often has authorized Corps studies and at times construction projects for flood-damaged communities soon after significant storms; at times, these authorizations have been included in appropriations bills. Standard procedure, however, is for Congress to authorize Corps studies in a resolution of the authorizing committee or a Water Resources Development Act (WRDA). Since 2010, congressional action on committee resolutions for Corps studies, WRDA bills, and Corps appropriations have been complicated by earmark moratoriums.

Beyond Sandy: Flood Policy Challenge

Developing and investing in flood-prone areas represents a tradeoff between the location's economic and other benefits and the exposure to a flood hazard. Hurricane Sandy in 2012, Midwest flooding in 2011 and 2008, Hurricane Ike in 2008, and Hurricanes Katrina and Rita renewed interest in the suite of tools available to improve flood resiliency. In addition to oversight and funding of emergency response activities, at issue for Congress is deciding on whether and how to enact and implement feasible and affordable flood policies and programs to reduce flood risk. The challenge is how to structure federal actions and programs so they provide incentives to reduce flood risk without unduly infringing on private property rights or usurping local decision making. Tackling this challenge would require adjustments in the flood insurance program, disaster aid policies and practices, and programs for structural and nonstructural flood risk reduction measures and actions.