Obama's last ditch
regulations that devastate your property rights, by John Anthony, 3/16/17,
Sustainable Freedom Lab
In the final days of
Obama’s presidency two rules slid under the radar that drive explosive local
planning and building costs, transfer control of certain grant-related planning
to the government, and render local officials helpless to combat them.
Federal agencies often
enact onerous regulations by couching them in dry sounding names, or titles
that appear so munificent only a dark-hearted bean counter would question them.
The first regulation
appeared on October 28th of 2016, as Americans focused on the discovery of
Hillary-related emails on Anthony Weiner’s computer. The administration issued a new rule requiring
HUD assisted or financed new housing in flood plains to be elevated 2 – 3 feet
above the “base flood elevation.”
(https://www.federalregister.gov/documents/2016/10/28/2016-25521/floodplain-management-and-protection-of-wetlands-minimum-property-standards-for-flood-hazard?ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
The rule also applies to
“substantial improvements” of existing homes and those covered by HUD’s
mortgage insurance
(https://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/comp/premiums/premhome&ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
.
The rule, “Flood Plain
Management and Protection of Wetlands; Minimum Standards for Flood Hazard
Exposure; Building to the Federal Flood Risk Management in Standard,” aligns
the agency with Obama’s executive order 13690 which redefined a flood plain to
accommodate “climate change.”
(https://obamawhitehouse.archives.gov/the-press-office/2015/01/30/executive-order-establishing-federal-flood-risk-management-standard-and-?ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
Developers argue the
rule sharply increases the costs of single and multi-family homes, making home
construction less viable.
The National Association
of Homebuilders notes that President Obama’s EO provides no “scientific or
technical documentation”, “no cost-benefit analysis and no floodplain maps.”
(https://www.nahb.org/~/media/Sites/,-w-,NAHB%20Tagging/,-w-,NewFileUploadsSince5-4-15/NAHB%20Comments%20on%20the%20Revised%20Guidelines%20for%20Implementing%20Executive%20Order%2011988.ashx?la=en&ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
In fact, under the
order, each agency has the authority to define a flood plain based on its own
interpretation of climate change science.
In their rule, HUD
addressed the documentation issue by referencing NOAA’s “2012 Global Sea Rise
Scenarios for the United States.” But
the controversial report has since been contested and NOAA’s own credibility
has suffered from careless documentation and questionable data manipulation
(https://judithcurry.com/2017/02/04/climate-scientists-versus-climate-data/?ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
(https://stevengoddard.wordpress.com/spectacularly-poor-climate-science-at-nasa/?ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
.
For homeowners in flood
plains, even though HUD’s sources may be unreliable, the consequences for
failure to follow the agency’s demands can be hard to escape. Once ensnared in
HUD's grants or financing, there is little local officials can do to mitigate
the potentially needless additional construction costs and financial burdens to
residents.
The second obstructive
rule creates a legal basis for HUD to investigate and potentially sue
communities that fail to address climate change in their grant-related planning
activities.
(https://www.federalregister.gov/documents/2016/12/16/2016-30421/modernizing-huds-consolidated-planning-process-to-narrow-the-digital-divide-and-increase-resilience?ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
With its tortuous name,
“Modernizing HUD’s Consolidated Planning Process to Narrow the Digital Divide
and Increase Resilience to Natural Hazards,” the rule forces communities that
accept HUD grants under the agency’s Affirmatively Furthering Fair Housing
(AFFH) regulation to predict how climate change will affect their
neighborhoods. They must then design
consolidated plans that reduce the “impacts of climate change on low and
moderate income residents.”
(http://sustainablefreedomlab.org/2016/02/26/hud-affirmatively-furthering-fair-housing/?ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
Like AFFH, this rule
fails to define what the agency means by climate change nor how grant
recipients are to respond to the increased hazards. In past years, this may not
have been problematic since HUD generally left planning up to local
communities. Since 2011, HUD has initiated an unprecedented number of legal
actions that have smacked grant recipients including Marin County, CA,
Westchester County, NY, Nassau County, NY, Whitehall, PA and many others across
the nation for failing to comply with poorly defined demands.
The agency’s actions
have led to the loss of grant money, the imposition of massive financial
penalties, and the ‘forced’ acceptance of HUD’s “Voluntary Compliance
Agreement” that gives the agency even greater control over local land use
actions.
The issue of HUD’s
climate change demands in itself is problematic. At best, catastrophic man-made
climate change is an idea that has yet to support its originator’s
predictions. At worst, it is a
politically driven tool to force socio-economic change based on mass
distribution of easily manipulated data.
There is simply no way
for a community to plan for a hazard whose definitions are malleable, but whose
failure to address them are subject to exorbitant fines and mandates.
Communities deserve
greater clarity about HUD’s climate change expectations, and verifiable data
before diving into costly and potentially endless federal campaigns to address
a problem that may not exist.
There is good news and a
caution. In my report for North Carolina Representative Mark Meadow’s office I
did recommend both rules be reversed by the 115^th Congress. There is good reason to believe that will
happen. Congressman Meadows is the Chairman of the Freedom Caucus, and has
included the reversal of these and other regulations as a front-line effort.
Still, this does not
relieve our job as community members to work with our local officials andinform
them
(https://sustainablefreedomlab.org/join/?ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
of these rules and begin weaning off federal grant money.
Call your congressional
representatives and tell them to use the Congressional Review Act (CRA) to
remove HUD's regulations on Floodplain Management (81 FR 74967 and on
Modernizing HUD's Consolidated Planning (FR 5891-F-02.)
(https://www.federalregister.gov/documents/2016/10/28/2016-25521/floodplain-management-and-protection-of-wetlands-minimum-property-standards-for-flood-hazard?ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
)
(https://www.federalregister.gov/documents/2016/12/16/2016-30421/modernizing-huds-consolidated-planning-process-to-narrow-the-digital-divide-and-increase-resilience?ct=t()&mc_cid=d468a0b35c&mc_eid=[UNIQID])
Yours in liberty, John
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