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Document Type

Comment

Abstract

Releasing its first updated floodplain map for a major New England harbor, the Federal Emergency Management Agency (FEMA) imposed severe building restrictions on Portland, Maine, the largest foreign inbound transit tonnage port in the U.S., threatening to leave this sheltered waterfront with only fishing shacks. Portland is naturally protected by islands and has been used for centuries as a safe haven for ocean-going vessels, including oil tankers, cruise ships, and Coast Guard frigates. Minute storm damage has been reported over this time. Over the past thirty years, only three insurance claims, totaling $36,000, have been paid out. FEMA has an incentive to designate as many properties as possible as “high risk.” Such a classification arrests development and increases the local share of the cost of flooding. These results further the flood program’s goal of keeping property and people out of harm’s way and reducing the public’s share of the flooding cost. In Portland, where benign waters do not even lap against piers, the agency declared that waves were capable of surging three feet in the air and crashing down on waterfront property. The federal government may have zealously cast too wide a net. The result is that the National Flood Insurance Program (NFIP), a scheme created for financial reasons, is unnecessarily working against its own purpose by halting development and threatening to wreak economic havoc. To rectify this, economic factors should be considered when determining building restrictions. Until this is done, cities like Portland should not comply with the restrictions. They can protect their economic development interest and are likely to escape any serious repercussions for not complying. FEMA has been unable to adequately enforce its building restrictions and its sanctions are light. Courts also favor noncompliant municipalities. This Comment will explore these issues. In Part II, we will gain an understanding of the policy reasons behind building restrictions. We will then learn why these policies are fatally flawed. In Part III, we will survey the purpose and limitations of FEMA’s national re-mapping effort and how it is being received across the country. Then, we will hear Portland’s story, including the local officials’ arguments against the new restrictions on development. In Part IV, the Author argues that Congress and FEMA should incorporate economic factors into the agency’s determination of building restrictions. In Part V, we will get an update on Portland. Then, we will walk through the options available to similar port cities stuck with severe building restrictions. The most palatable one is non-compliance. We will discuss why it enjoys a favorable legal position, including courts’ unwillingness to burden municipalities with massive liability. We will also look at the risks involved.

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