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Flooding from Irene: Whither the Flood Plain?

J. Wylie Donald

By J. Wylie Donald, Partner, McCarter & English

My train this morning usually continues to New York. Today it terminated in Philadelphia, a victim of the deluge delivered by Hurricane Irene. Amtrak explained:

Most Northeast Regional service will operate south of Philadelphia, but no Acela Express, Northeast Regional or other Amtrak trains can operate north of Philadelphia to New York.

As of early this Monday evening, about a half-mile of Amtrak right-of-way remained submerged near Trenton, N.J. As the water levels recede, Amtrak engineering forces will make repairs to the track and signal control infrastructure. Updates will continue to be provided and an estimate for restoration of full service south of New York is not yet available.

Many attribute the recent spate of natural disasters (heat waves, droughts and wildfires in Texas, tornadoes in Missouri and Alabama, Hurricane Irene) to the effects of climate change. We reserve judgment. Climate change is about trends, not individual events.

One trend we are watching closely is the status of flood plains. We dug up the Flood Insurance Rate Map for the Trenton train station. The Amtrak right of way mentioned above is in the 100 year flood plain. We weren't able to determine how many times it had flooded recently, but the mayor of nearby Lambertville noted that they have been flooded out 5 times in the last ten years. The flood at the train station was a record, nearly seven feet above flood stage. Id. And a study out of the University of New Hampshire reports New Hampshire has experienced 4 100-year floods in the last four years. Some may discern a trend.

Fortunately, we are not the only ones watching. FEMA is in the process of preparing a report on climate change impacts on the National Flood Insurance Program. Preliminary information indicates that some Special Flood Hazard Areas (the 100-year flood plain) will double in size and that by the next century the nation's flood plain will be 40%-45% larger. Look for The Impact of Climate Change on the National Flood Insurance Program to be out this fall.

FEMA currently does not directly address climate change in the NFIP, because its practice is to make its assessment based on the historical record. But that does not mean communities and businesses cannot. For example, a community may request that the applicable Flood Insurance Rate Map address future conditions. 44 CFR 64.3(a)(1). Where business continuity planning is standard practice (and we hope that is everywhere) vulnerability assessments need to ask not only where is the flood plain, but where is it likely to be. Many have been off to a slow start on climate change planning. But, as with trains, late is better than never.

Read more at Climate Lawyers Blog by McCarter & English, LLP.

The Climate Lawyers Blog is a 2011 LexisNexis Top 50 Blogs for Environmental Law & Climate Change winner.

Additional writings by J. Wylie Donald on the LexisNexis Communities:

The Debt Ceiling Furor Will Change the Climate of Climate Change Responses.

Coal Exports to China and Rising Temperatures.

Predicting Sea Level Rise - The Arctic Council Raises the Ante.

Looking Forward and Looking Back - Some Climate Change Response Perspectives and Predictions.

McCarter & English LLP on Insurance Coverage for Greenwashing Claims: It Depends on the Packaging. subscribers can utilize the following resource:

National Flood Insurance Program, Environmental Law Practice Guide (Matthew Bender).

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