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KEY POINTS
A 50-year-old federal rule, intended to mitigate disasters, is having the opposite effect.
As a result of this rule, land planners routinely abandon projects meant to improve water quality and reduce flooding.
New legislation in the U.S. House and Senate aims to address these shortcomings.
LA CROSSE, WISCONSIN — Since its creation in 1979, the Federal Emergency Management Agency has been charged with protecting communities from natural disasters. Central to that mission is curtailing serious flooding, the most prevalent and severe weather threat to people and property across all 50 states.
That objective, though, is impeded by an old and obscure federal regulation — overseen and enforced by FEMA itself — that is actually making flooding worse.
That result was felt just last month, when a powerful storm hit the Pacific Northwest. Flooding along Washington’s Nooksack and Skokomish rivers destroyed homes and inundated roads, prompting evacuations and the declaration of a state of emergency. Some losses may have been alleviated, experts assert, had planned flood mitigation work along these same rivers’ banks not experienced significant delays and cancellations as a direct result of the rule’s powerful reach, which extends nationwide.
Here in Wisconsin in the past year, watershed conservationists in Walworth and Ashland counties — located in the state’s south-central and northern regions — were forced to abandon two water quality and flood mitigation projects in local streams after discovering they would be subject to the regulation.
Known within FEMA as the “no-rise” rule, the directive prohibits any earth-moving activity in low-lying, flood-prone areas if water levels during a storm would rise above what was present before the construction started. In other words, any project — defined as “development” by the agency — must not increase the volume of water in flood-prone areas by any amount.
The rule, written in 1976 as a feature of the National Flood Insurance Program (NFIP), and described in detail for the first time by Circle of Blue, was enacted with good intentions to restrict development in floodplains. Its initial focus was population centers: even an incremental increase in the volume of water that might overflow into a street or neighborhood can have perilous effects on basements, utilities, infrastructure, and human lives.
At the time it was enacted, restoring floodplains and watersheds were novel pursuits. A half century later, these efforts are recognized for their environmental and human benefits. But as the no-rise rule is currently written and interpreted, “development” is an all-encompassing term that pertains equally to the paving of a new downtown road, as it does to the restoration of wetlands in a remote field. In the eyes of FEMA, a project to address pollution or flooding in a stream is held to the same “no-rise” standards as the construction of a new building.
FEMA’s enforcement of the rule is producing unintended effects. Meeting the “no-rise” standards, project managers say, adds tens of thousands of dollars to project costs and causes years of delay. As a result, land planners — from small nonprofits to federal agencies — routinely abandon efforts to improve water quality and restore watersheds before they even hit the ground.
By barring “development” in floodplains, the no-rise rule allows for the degradation of habitat, lowering of water quality, and flooding to persist and worsen.
Viewed broadly, the rule’s compounding outcomes could not be felt at a more consequential time for the nation’s waters. The Trump administration is eliminating environmental safeguards, scaling back protections for the majority of the country’s wetlands, and proposing limits on states’ power to issue water quality reviews.
Bipartisan lawmakers have developed legislation in both the U.S. House and Senate to amend FEMA’s no-rise rule in order to remove barriers to restore floodplains and watersheds. The agency has worked with legislators in writing these proposed policies, but did not respond to Circle of Blue when asked for a comment.
“It was never an NFIP goal to see rivers and floodplains restored, which might be why these policies are so antiquated,” says Jennifer Western Hauser, a policy liaison at Wisconsin Wetland Alliance. “We understand now that restoring floodplains can reduce flood risks and damage, so it’s long overdue to restore common sense.”
A Case in Point in Wisconsin’s Driftless Area
Addressing risks and recovery in flood-prone areas is an exhaustive undertaking. FEMA invests tens of millions of dollars each year in projects to reduce threats where storms are likely to hit.
But the agency spends significantly more in their aftermath. Since its launch in 1968, the agency’s National Flood Insurance Program has fulfilled north of $88 billion in property damage claims.
The economic realities and the extreme human cost of floods means that flood control remains a heavily regulated effort codified within dozens of federal statues, mandates, and supplemental acts. Among this tangle of federal regulation is the no-rise rule that is producing unwelcome effects in rural regions, where efforts to reduce flood risks and improve the quality of long-polluted waters are routinely stymied. The dairy farms and modest homesteads that mark the snowy fields of Barre Mills, Wisconsin offer a case in point.
The small unincorporated community recalls a typical Midwestern landscape, save for the towering bluffs and rocky cliffs that wreathe around it, rising hundreds of feet. This unique stretch of southwestern Wisconsin, part of a wider region known as the Driftless Area, was left untouched by heavy ice sheets and retreating glaciers during the most recent Ice Age. Cold-water streams, waterfalls, and deeply carved river valleys abound as a result. Both the Mississippi and Wisconsin rivers flow through La Crosse County.
But when managed unsustainably, this steep terrain can accelerate watershed degradation. In rural Barre Mills, a legacy of tilling, deforestation, and livestock grazing atop tall bluffs has left the town’s low-lying areas with floodwaters polluted with fast-moving farm runoff.
Bostwick creek, which stretches for 13 miles through 30,000 acres of woods and farms, is one prime example.
The creek’s final four miles are severely impaired. Destructive storms and flooding, fueled by a changing climate, have exacerbated the erosion of its vulnerable banks. Non-point pollution from local farms has poured into the channel. Since 2014, the waterway has held unsafe concentrations of phosphorus, fecal matter, and suspended solids.
These unwanted pollutants are not contained to just the creek. The Wisconsin DNR has issued fish consumption advisories after detecting high concentrations of forever chemicals in the La Crosse River, into which Bostwick flows. Duckweed and green algae, a side effect of nutrient spillage, has inundated downriver marshlands.
The county has identified the creek’s water quality woes as a high-priority issue. From a conservation approach, its restoration portends to follow a straightforward plan of soil stabilization and the addition of new vegetation, which will make its floodplain more durable. Local farmers have even pledged crucial support for the effort, agreeing to give up precious land and private fishing access, and commit to no-tilling practices near its banks.
But FEMA’s “no-rise” rule is throwing a wrench in the entire operation. Creek restoration requires navigating a mountain of costly and time-consuming engineering, modeling, mapping, and permitting requirements that “seems to end up in a drawer, if anyone even looks at them at all,” says Jacob Schweitzer, La Crosse county’s lead watershed planner.
The rule has delayed the creek’s restoration by months and added roughly $8,000 in expenses so far.
Floodzones AE, Floodways, and Maps
FEMA reaches its conclusions about development projects in rural valleys, like the one drained by Bostwick Creek, after three stages of formal consideration.
First, the agency defines the valley as a floodplain, which is broadly defined as an area that is susceptible to being inundated by water during a storm. Second, FEMA designates land directly adjacent to Bostwick Creek with the more specific distinction of being a “Floodzone AE,” which is identified as a “high-risk” area within a floodplain. And third, within Floodzones AE are other pockets of land called regulatory floodways — the highest-risk area within a floodplain to flooding.
Herein lies the culprit and its burdensome penalty.
All “development” done inside regulatory floodways, whether related to construction or conservation, is subject to the “no-rise” rule. Failure to comply with the regulation, Schweitzer says, would result in the entire county’s population losing access to federal flood insurance.
Adding to the frustration is the agency’s lethargy in upkeeping current records. Most flood zones were set decades ago when FEMA drew its inaugural set of flood maps for the NFIP. But these landscapes have changed vastly over the past half-century, and most of these maps and designations no longer reflect today’s terrain. Despite this, the agency does not systematically work to ensure its digital records match the risks or non-risks present on the ground.
“It’s a long, complicated, and political process,” says Brandon Parsons, director of river restoration at American Rivers. “Landowners and farmers living on thousand-acre ranches, with nobody in sight, might have to pay $50,000 to go through this conditional process with FEMA to restore banks on their own land.”
The responsibility of updating maps thus falls on project planners, who must demonstrate that their work will follow the “no-rise” requirements. At Bostwick creek, original flood maps have not been touched since 1982. Months of work to bring these maps up to date, Schweitzer says, has cost thousands of dollars, all to prove that the water level will remain unchanged.
“Restoration work in zone AEs is frequently avoided,” Western Hauser adds. “That can only lead us to untenable conclusions. If zone AEs are degraded, they’ll remain degraded, or get worse because no one will work on them.”
The Floodplain Enhancement and Recovery Act
On a blustery December afternoon, Jacob Schweitzer navigates shin-deep snow near a chicken farm along the Bostwick, where more than 50 feet of sediment has fallen into the creek in just the past few years. Further downstream, fallen trees zig-zag and soils slump into the channel.
Hardly a dozen farmhouses fill the view, and yet the project is held to the same standards as the construction of a new office building along the Milwaukee River in downtown Milwaukee.
Policy experts agree that a significant amount of restoration work can be unlocked if FEMA regulations are updated with more nuance. This winter, a pair of bipartisan bills have been introduced on Capitol Hill to remedy this sticking point.
Senate Bill 1564 — the Floodplain Enhancement and Recovery Act, authored by Senators Patty Murray (D-Washington) and Steve Daines (R-Montana) — and a companion House Bill, co-authored by Wisconsin Representative Bryan Steil, a Republican, would add a definition of “ecosystem restoration” to the NFIP, differentiating it from other forms of development. States and communities would have the flexibility to allow up to a one-foot rise in a regulatory floodway’s water level, so long as no nearby insurable infrastructure is affected.
“In other words, we’re talking about less-developed areas,” Western Hauser says. “We’re talking about areas upstream of development, where you might want to get your river working in tandem with your floodway.”
Barre Mills is the exact kind of community where this legal nuance could make a big difference for water quality. If the act becomes a law, FEMA would have 180 days to develop guidance for how communities can work in compliance with this new rule. The agency would also be obligated to collaborate with natural resources agencies when drafting these directions.
Floodplain managers, conservation groups, insurers, and tribes across the country continue to voice their support for the legislation. Supporters say its passage is most likely if it is attached to a larger congressional package.
“Bureaucratic red tape should not stall common sense restoration projects,” Rep. Steil said in a statement. “The Floodplain Enhancement and Recovery Act eases administrative burdens and empowers Wisconsin communities to make our waterways healthier, strengthen our resilience to floods, and enhance ecosystems across the nation.”