Newspaper or online story headlines:

• Potable Water System Continues to Provide Safe and Affordable Water to Millions
• Drainage System Safely Conveys Another Rain Event Away From Millions of Residents
• Transportation Network Allows Millions to Get to Work and Produce Regional Economic Value
• Millions Live and Work In Comfort Inside Electrically Powered Air Conditioned Environments

Ever see headlines like these?  No. I didn’t think so.

As we’ve seen more acutely in the last few years, news is product for sale. It’s packaged and designed to appeal to a certain customer. It features stories and subjects that people will find interesting, emotional, and attractive. It features stories that will “sell.” It features stories that attract buyers looking to confirm their world view.

“Nothing bad happened today” is not a story that will sell very well. Stories about public infrastructure systems that work the vast majority of the time do not sell newspapers or generate online clicks.

I recently attended the West Houston Association’s Flood Control Technical Forum, which featured the Executive Director of the Harris County Flood Control District, Russ Poppe, and City of Houston Chief Resiliency Officer, Steve Costello.

Mr. Poppe showed a slide which listed the number of homes flooded in each of several watersheds during the Tax Day and Memorial Day floods of 2015 and 2016. They were large numbers. As “just” numbers, they did not fully convey the horrible negative emotional, physical, financial, and social impacts those large rain events (and the inability of the drainage systems to convey the resulting large amount of stormwater runoff) had on the people who flooded. The stories of the people who flooded are raw, emotional, visceral, and terrible. The photographs of flooded homes are powerful.

But the slide also included the number of homes that did NOT flood because of drainage system improvements constructed in each of the watersheds before the rains came.  Here’s the slide:

When we total the totals, here’s what we get:

• Homes flooded from two large rain events: 5,750.
• Homes NOT flooded from two large rain events because of infrastructure improvements designed and built by Harris County Flood Control District: 14,385.

This is great news, especially given that the HCFCD is funded with revenue from an annual property tax rate of about $0.028 per $100.00 valuation. [This means that a family living in a home valued at $100,000 will contribute about $28.00 each year to HCFCD revenues.] That’s about $2.33 per month.

Just image the flood damage reduction and flood risk reduction we could accomplish if we could find a few more dollars a month in funding.

The Set Up

Say you have a contract to purchase land at a great price in a great location for a new development project. The financial projections for the project (both costs and revenues) look great and the internal rate of return meets your investment requirements. All looks promising, except, during due diligence, someone mentions that there might be wetlands in the planned development area.

What to do next depends on how much risk you and your financial backers can stomach. It is a violation of federal law to impact waters of the United States without a permit. If your project is self-financed and you are a risk taker, you might decide to move forward with little to no field work and coordination with the U.S. Army Corps of Engineers (USACE). If you have a traditional loan or work for a publicly traded company you might move forward after more extensive field work and coordination with the USACE, including a permitting step.

Wetlands assessments can range from an inexpensive Desktop Evaluation up to a full, Wetlands Delineation using USACE procedures and forms. For a 500 acre, partially forested tract, these services might range from several thousand dollars to the high two figures. The amount you spend should depend upon your tolerance for risk and how much capital must be committed at that moment in the process.

Desktop Evaluation

A Desktop Evaluation considers readily available historical and current aerial photos, floodplain maps, and the US Fish and Wildlife’s National Wetlands Inventory (NWI) maps.  This is the least expensive method, but its also is the least accurate and least defensible method should questions arise after the development is constructed.  A Desktop Evaluation is not sufficient to secure an official ruling from the USACE on the regulatory status of the wetlands. NWI wetland polygons may or may not represent an actual wetland due to the age of the satellite imagery used to produce them and because ground surface vegetation and hydrology may be obscured.  Historical aerial photographs are also reviewed and they inexpensively provide great insight about the potential for wetlands to be present; however, they are no substitute for direct observation of site conditions.

A Desktop Evaluation is typically a good choice prior to any land purchase. The results can help give you a rough qualitative sense of whether you should spend a bit more investigating what’s really there and how the wetlands might constrain your land plan and revenue forecast. It can also help give you a rough idea about what kind of permitting might be necessary and the schedule impact that might have.

Wetlands Assessment

The next level of investment involves a site visit by a professional wetlands scientist to observe the site directly and to examine the soils, plants, and hydrology in a few locations. This is often called a Wetlands Assessment.  It does not comply with the full delineation requirements imposed by the USACE, however, it does allow the consultant to provide an opinion regarding the location and size of wetlands on the property.  After a Wetlands Assessment the consultant will typically provide a brief report with a refined site map, an estimate of the size and location of wetlands on the property, an opinion about whether they might be under federal jurisdiction (and might trigger permitting if unavoidably impacted), and initial thoughts about permitting options (if anticipated to be required).

The results of a Wetlands Assessment reduces your risk exposure, provides more information on which to base a purchase decision, helps guide land planning decisions, and helps refine project financial projections. The results of a Wetlands Assessment can sometimes justify walking away from a project, especially if extensive federally regulated wetlands are present and permitting unavoidable impacts would be too time consuming or if the replacement of lost wetlands would be too costly.  The results of a Wetlands Assessment can sometimes justify proceeding with the project without USACE coordination or permitting if the Wetlands Assessment shows no unavoidable impacts that would require permitting.

 Wetlands Delineation

A Wetlands Delineation evaluates soils, hydrology, and vegetation at multiple locations in and around the boundary of each wetland feature to accurately identified the size, location, and shape of each wetland area on the site.  The process is defined in detail in national USACE Guidance (with regional supplements) and the results are presented in USACE forms.  This is the most expensive approach, however, it accurately and precisely defines the location and size of each area of the project that is likely to be subject to federal regulation, in the consultant’s opinion.

A Wetlands Delineation is an extensive study that reduces your risk and liability exposure even more than a Wetlands Assessment.  A Wetlands Delineation also allows you to more confidently estimate the size of any unavoidable wetland impacts your development might create. The accurate wetland map can be used to refine the land plan to avoid and minimize impacts to wetlands. The revised land plan can then be used to update the project financial projections.

Jurisdictional Determination

Not all wetlands or creeks are “Waters of the United States” subject to federal regulation. Your consultant can provide a professional opinion regarding the status of the wetlands and waters on your property; however, the USACE is the only entity that has the legal authority and power to officially determine whether a wetland or waterbody is subject to federal regulation. Please see this post for a primer on how they do this.

If you elect to conduct a Wetlands Delineation, that detailed information can be submitted to the USACE, along with an “Approved Jurisdictional Determination Form” to ask the USACE to verify the delineation and to make a determination regarding the jurisdictional status of all wetlands and waters on your property.

There are actually two kinds of determinations.  An Approved Jurisdictional Determination (AJD) is a final statement as to the status of all wetlands and waters on your site. It is used in cases where there may be some wetlands or waterbodies on your site that are likely not federally regulated, because, for example, they are isolated, or were constructed in the past, or for some other reason. An AJD (hopefully) confirms your consultant’s opinion and gives you permission to impact certain wetlands that are not federally regulated while protecting others that are. This reduces your risk and liability exposure because the entity with the sole legal authority to make the decision, makes the decision in writing, in the form of a “determination letter.”

The second kind of determination is a Preliminary Jurisdictional Determination (PJD). A PJD is typically used if you want to save time and you’ve determined that your project can be developed without any impacts to wetlands or water features and still be financially viable. The PJD, in effect concedes that all wetlands and water features on the property are waters of the United States and that unavoidable impacts to them must be permitted.

A future post will provide an overview of the permitting options offered by the USACE to project sponsors that have unavoidable impacts to waters of the United States.

On July 11, 2017 Leah Binkovitz, a staff writer for the Rice Kinder Institute for Urban Research, published a story on The Urban Edge blog entitled: “Why the 100-Year Floodplain Needs to be Rethought.” This post provides some comments.

The story states that “areas inside the 100-year floodplain have a 1 percent chance of flooding each year and are required to buy federally-regulated insurance. But that measure has been increasingly called into question, along with the role of the flood insurance program.”

The story correctly notes that floodplain managers in the United States have used the 1% annual chance threshold to define the arbitrary boundary between high risk and low risk areas along bayous and rivers since 1968. It is policy decision we’ve made, not a technical one.

It is not true that all structures with an annual chance of flooding of 1% or greater are required to buy flood insurance. There is no law or regulation that requires that. It is almost always required by the lender, in order to replace the structure, which serves as collateral for the loan, if it is damaged in a flood. Owners of structures with an annual chance of flooding lower than 1% are also not required to obtain insurance by regulation or by lenders; but many can and do.

We should encourage discussion about whether the 1% risk level is a good dividing line between “high risk” and “low risk” areas, when, obviously, the risk gradually declines as you move away from each creek or bayou. We should also encourage discussion about the exposure to risk from flooding which occurs in areas outside of bayou floodplains. Local streets and storm drains in neighborhoods can only handle a certain depth of rainfall over a certain period of time. If that, so called, “level of service,” is exceeded, or if drains are clogged or broken, local flooding can occur. Our policy discussion should also consider the public’s risk tolerance and their willingness to pay to reduce their risk exposure.

If we decided to make the policy choice to define the high risk areas as those with a 0.5% or a 0.1% annual chance of flooding, and mandated the purchase of insurance on homes or structures in those areas, what would happen to the size of the floodplain and the community cost burden? It would get much bigger. It would encompass many more homes and structures. Flooding events would trigger more claims and much larger insurance payouts. All of these facts would drastically increase the cost of flood insurance or the cost to federal tax payers, especially in flat, coastal areas like Houston. [This might even be considered analogous to the way the Affordable Care Act mandated the purchase of health insurance so that healthy people (those with a low flood risk) would help subsidize the less healthy people or those with pre-existing conditions (those with a high flood risk).]

The story then describes how many insured losses are located outside the 100-year floodplain, quoting from a study, published online earlier this year and in print in the August issue of Natural Hazards Review.

Why would so many homes and businesses located outside of the 100-year floodplain have flood insurance? Many people obtain insurance on a voluntary basis because it is very inexpensive when compared to risk of loss and the cost of such losses. It is inexpensive because it is subsidized by the federal tax payer (you and me).

The story suggests that floodplain models “don’t take into account changing land use, like loss of wetlands or additional impervious surfaces — both important factors in the fast-growing Houston metropolitan area.”

Floodplains are defined using the most up to date and current information about rainfall intensity and depths, topography, land use, and land cover available at the time. Floodplain models are created by licensed professional engineers using current data and then formally adopted by floodplain administrators. These modeling efforts are extensive and relatively costly, therefore, they are not broadly updated very often. Changes in the watershed outside the floodplain are not addressed until there is restudy of the floodplain associated with that watershed and bayou. So its true we don’t have “real-time” watershed models and floodplain maps. They are only accurate for a short time after they are published in a fast growing watershed. In watersheds without significant development activity, they are accurate for a much longer period of time.

Floodplain models and maps are, however, frequently updated as a result of new development or other changes inside the existing floodplain through a process called a “Conditional Letter of Map Revision (CLOMR)” and a “Letter of Map Revision (LOMR).” The CLOMR is a prediction of the increase or decrease in the base flood elevation and areal extent, before to the project being built. The LOMR revises the map after the project is built. This process allows floodplain managers to update the model as a result of floodplain changes and to inform the affected land owners and communities know about the pending and actual changes. Project Brays is a great local example of this process illustrating the reduction of the floodplain as a result of channel changes.

Wholesale updates of the model for a particular watershed occur less frequently mainly due to funding constraints.  Floodplain managers would conduct these updates more frequently is funding was made available.

So discussions about our risk tolerance, our willingness to pay for reduced risks, our willingness to invest in more frequently updated risk assessments, and who bears the costs of floodplain management and losses are all important.  What do you think?

[July 27, 2017: The proposed rule has been published today’s Federal Register. Comments are due August 28, 2017.]

[July 21, 2017 Update: If you’ve been checking the Federal Register each day you may already know that, surprisingly, this rule has not yet been published.]

On June 27, 2017 the U.S. Environmental Protection Agency (EPA) posted the pre-publication version of their pending Proposed Rule entitled: “Definition of ‘Waters of the United States’ – Recodification of Pre-existing Rules.”  Here’s an extremely brief summary of what has led up to this rule and a short summary of what it proposes to do.

The definition of the term “waters of the United States” — or “WOTUS” for short — has been the subject of much litigation over the years. Its definition determines if a private party needs U.S. Government permission (in the form of a permit issued by the U.S. Army Corps of Engineers) to impact wet areas on their property. The term is used to define “navigable waters” in federal law.

On one end of the spectrum there are traditionally navigable waters used for interstate commerce. These are unquestionably WOTUS.

In the middle of the spectrum there are wetlands adjacent to navigable waters. There are tributaries of navigable waters. There are tributaries of tributaries of navigable waters. There are even wetlands adjacent to these various types of tributaries.

On the other end of the spectrum there are small, isolated areas of standing water, soils, and vegetation (true wetlands) located far away from any navigable waterway.

Which of these is subject to Federal regulation?

That question has been addressed by U.S. Supreme Court cases, EPA Guidance, and regulations. These may be summarized and simplified as follows:

• Riverside (1985): Wetlands adjacent to a navigable water are WOTUS.
• Solid Waste Authority of Northern Cook County  (SWANCC) (2001): Isolated wetlands used by migratory birds (thus triggering an intrastate commerce activity) are NOT sufficient to make an isolated wetlands a WOTUS. A “significant nexus” between the isolated water and a navigable waterway is required for waters to be WOTUS.
• Rapanos (2006): Relatively permanent, standing or continuously flowing bodies of water, that are connected to traditional navigable waters as well as wetlands with a continuous surface connection to such water bodies are WOTUS. Also aquatic features or wetlands must have a “significant nexus” to a WOTUS to be considered a WOTUS. In practice, this made most isolated wetlands, those not adjacent or abutting a navigable water, those not in the floodplain of a waterway, and those not a tributary of a navigable water, typically NOT WOTUS.
• Final Clean Water Rule (2015): Created a prescriptive “significant nexus” test that had the effect of making many isolated wetlands WOTUS.

U.S. Supreme Court AT THE TIME OF THE RAPANOS DECISION (2006).

The Trump administration views the Clean Water Rule as inappropriately extending federal jurisdiction to wetlands and aquatic resources beyond those that would be regulated under the Rapanos decision and associated guidance. This view has led to the proposed rule that was just released. Quoting from the pre-publication Federal Register text:

In this proposed rule, the agencies would rescind the 2015 Clean Water Rule and replace it with a recodification of the regulatory text that governed the legal regime prior to the 2015 Clean Water Rule and that the agencies are currently implementing under the court stay, informed by applicable guidance documents (e.g., the 2003 and 2008 guidance documents, as well as relevant memoranda and regulatory guidance letters), and consistent with the SWANCC and Rapanos Supreme Court decisions, applicable case law, and longstanding agency practice. The proposal retains exclusions from the definition of “waters of the United States” for prior converted cropland and waste treatment systems, both of which existed before the 2015 regulations were issued. Nothing in this proposed rule restricts the ability of States to protect waters within their boundaries by defining the scope of waters regulated under State law more broadly than the federal law definition.

Once the proposed rule is published in the Federal Register the public will have 30 days to submit comments. I’ll update this post with a link to the docket when it becomes available.

[July 27, 2017: The proposed rule has been published today’s Federal Register. Comments are due August 28, 2017.]

[July 21, 2017 Update: If you’ve been checking the Federal Register each day you may already know that, surprisingly, this rule has not yet been published.]

Declaration of Independence

Note: The following text is a transcription of the Stone Engraving of the parchment Declaration of Independence (the document on display in the Rotunda at the National Archives Museum.) The spelling and punctuation reflects the original.

In Congress [Philadelphia, Pennsylvania], July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Independence Hall, Philadelphia, PA. Source: National Park Service.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

• He has refused his Assent to Laws, the most wholesome and necessary for the public good.
• He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
• He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
• He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
• He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
• He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
• He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
• He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
• He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
• He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
• He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
• He has affected to render the Military independent of and superior to the Civil power.
• He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
• For Quartering large bodies of armed troops among us:
• For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
• For cutting off our Trade with all parts of the world:
• For imposing Taxes on us without our Consent:
• For depriving us in many cases, of the benefits of Trial by Jury:
• For transporting us beyond Seas to be tried for pretended offences
• For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
• For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
• For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
• He has abdicated Government here, by declaring us out of his Protection and waging War against us.
• He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
• He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
• He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
• He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

[See the source page for the list of signatories.]