Friday, October 8, 2010

Mitigation-Wherefore Art thou? VLG TECHNICAL NOTE

I published the VLG technical note below sometime ago. I have decided to republish and update it.

Disaster Mitigation Act of 2000

In 1994 FEMA rejected the argument that the Robert T. Stafford Act, Pub.L 100-707, that had been signed into law on November 23, 1988, contained any authority for pre-disaster mitigation. This incorrect legal conclusion however led to the eventual adoption of the Disaster Mitigation Act of 2000, Pub.L. 106-390, October 30, 2000. This statute enhanced the mitigation portions of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707. The FEMA decision was made despite the fact that the Disaster Relief Act of 1974, Pub.L.93-288 mandated community mitigation plans after each disaster. The required post-disaster mitigation was to take place in every community receiving disaster relief, but no substantive regulations were issued until 1979. Raising an almost Chicken or Egg paradigm as to which comes first, most communities in the USA that received disaster relief after November 23, 1988 when the Stafford Act became law had experienced at least one disaster and therefore were already under mandatory mitigation compliance requirements. The pre-disaster post-disaster conundrum was in reality FEMA’s way of ignoring the requirements of the 1974 Act. The legislative history of that statute was fully entwined with that of the Flood Disaster Protection Act of 1973 (codified together with the National Flood Insurance Act of 1968 at 42 U.S.C. 4001-4128) that had removed the barrier to disaster relief in Pennsylvania communities and other affected by Tropical Storm Agnes if the communities had been eligible for flood insurance and individual property owners had not purchased it. Believing that for the first disaster the prohibition on receipt of disaster relief was too onerous, a so-called first-bite free rule was adopted. That is individuals in a flood-prone community could receive disaster relief if they then purchased and maintained flood insurance. Additionally, disaster impacted communities had to adopt a mitigation plan before receiving further disaster relief.

The Disaster Mitigation Act of 2000, Pub.L. 106-390 (H.R. 707) was signed October 30, 2000. An interim rule was published at 67 Fed. Reg. 61445-61460. Among other issues, the FEMA rule postponed for another full year the requirement that State-wide mitigation plans be adopted. Thus, the cycle of delay and lack of enforcement continues.

The signing of Pub.L. 107-296 on November 25, 2002, of the Department of Homeland Security Act of 2002, raised the question of wheregoest mitigation. It was possible that mitigation could be extended to non-natural disasters. A recommendation that was made by the General Accounting Office on September 30, 2002, in a Report to the Chairman, Subcommittee on International Security, Proliferation, and Federal Services. Committee on Governmental Affairs, United States Senate. A committee to be chaired by Senator Susan Collins of Maine in the 108th Congress beginning January 7, 2003. The GAO report (GAO-02-1035) is entitled “Hazard Mitigation-Proposed Changes to FEMA’s Multi-hazard Mitigation Programs Present Challenges.” The OIG/HHS in the fall of 2009 also concluded that non-natural hazards could be mitigated. Of course in my opinion MITIGATION is part of the paradigm that the DHS has adopted under the rubric "Resilience" as is protection and prevention, the latter added to the disaster paradigm for better or worse by PKEMA 2006.

Numerous definitions of “Mitigation” exist. Perhaps the simplest is mitigation means efforts to reduce the likelihood of serious consequences from future disasters. Another definition is mitigation includes the policies and actions undertake at a time distant (usually considerably before) from actual disaster situations and that are intended to prevent or reduce a disaster impact when it occurs.

Accordingly, a major decision of interest in creation of the DHS was how the Secretary of the Department of Homeland Security interprets mitigation authority and how mitigation programs, functions, and activities would survive.

That answer is now pretty clear. Mitigation despite be strengthened by statute is not effective in DHS/FEMA programs, functions, and activities and in fact rewards past non-compliance. All it would take to prove this is for the OIG/DHS to examine mitigation efforts in the top 100 communties that have received disaster relief since 1974 or the top 100 communities by paid claims under the NFIP since 1978.

So again the Administration has failed to seize the opportunity to put those in charge of DHS that believe in mitigation. And note for the record that the draft revision to E.O. 11988 released semi-publically in June 2009 has never been finalized and that draft is worse than the current version.