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May 19, 2009 - ASCE Statement - Levee Safety

Statement of
The American Society of Civil Engineers
Before The
Subcommittee on Water Resources and Environment
Of The
House Transportation and Infrastructure Committee
On The
Recommendation of the National Committee on Levee Safety

May 19, 2009

Madame Chairwoman and Members of the Subcommittee: The American Society of Civil Engineers (ASCE)1 is pleased to provide this statement for the record for the hearing on the recommendations of the National Committee on Levee Safety. ASCE also would like to take this opportunity to praise the efforts of the Levee Safety Committee for producing an excellent report under demanding circumstances.

I. ASCE Policy on Levees

There is no national safety program for federal or state levees. There is no dependable catalog of the location, ownership, condition, hazard potential of levees in the United States. Flooding from Hurricane Katrina, which devastated the city of New Orleans in August 2005, demonstrated the need for consistent, up-to-date standards for levees based upon reliable engineering data on their location, function, and condition.

Therefore, ASCE supports federal and state legislation and regulations to protect the health and welfare of the public from the catastrophic effects of levee failures.

Congress should enact legislation to establish a national levee safety program that is modeled on the successful National Dam Safety Program. The federal government must accept the responsibility for the safety of all federally funded and regulated levees. Similarly, state governments must enact legislation authorizing an appropriate entity to undertake a program of levee safety for non-federal levees. The act should require the federal and state governments to conduct mandatory safety inspections for all levees and establish a national inventory of levees.

The nation must use all the tools available to it to reduce damages from major storms, including hurricanes, and flooding. This means the use of structural methods, such as levees, floodwalls, and dams, but also non-structural approaches, such as floodresistant design, voluntary relocation of homes and businesses from flood-prone areas, the revitalization of wetlands for storage, and the use of natural barriers to storm surges.

II. Background
Levees play an enormous role in the economic and environmental welfare of the United States. “Levees are broadly classified … as either urban or agricultural levees because of different requirements for each.” U.S. Army Corps of Engineers, Design and Construction of Levees 1-2 (April 30, 2000), http://140.194.76.129/publications/engmanuals/ em1110-2-1913/c-1.pdf.

There is no definitive record of how many levees there are in the U.S., nor is there an assessment of the current condition and performance of those levees. According to a study by the Association of State Dam Safety Officials and the Association of State Floodplain Managers, only 10 states keep any listing of levees within their borders and only 23 states have an agency with some responsibility for levee safety. The Federal Emergency Management Agency (FEMA) estimates that levees are found in approximately 22 percent of the nation’s 3,147 counties. Forty-three percent of the U.S. population lives in counties with levees. Many of those levees were constructed decades ago to protect agricultural and rural areas, not the homes and businesses that are now located behind them. American Society of Civil Engineers, Report Card for America’s Infrastructure, January 2009, http://www.infrastructurereportcard.org/fact-sheet/levees.

Urban levee systems, because they are designed to protect urban areas, have typically been built to higher standards. No levee system, however, provides full protection from all flooding events to the people and structures located behind it. Some level of flood risk exists in levee-impacted areas. Federal Emergency Management Agency, Levee System Information for Stakeholders, Oct. 7, 2008, http://www.fema.gov/plan/prevent/fhm/lv_intro.shtm.

In August 2005, Hurricane Katrina — one of the strongest storms ever to hit the coast of the United States — brought intense winds, high rainfall, waves, and storm surge to the Gulf of Mexico shores of Louisiana, Mississippi, and Alabama. Communities in all three states suffered severe damage. ASCE, THE NEW ORLEANS HURRICANE PROTECTION SYSTEM:WHAT WENT WRONG AND WHY ES-v (2007).

[T]he levees in the New Orleans area breached at about 50 distinct locations. At least seven of the major failures were related to breaching of levees containing I–walls. The I-wall failures were particularly devastating because of the heavy residential development and low elevations [the walls] were attempting to protect. The rest of the levees breached when they were overtopped by the floodwaters, which eroded the levee material away.

Id. at 47.

Following the catastrophic failure of major portions of the New Orleans levee system after Hurricane Katrina in 2005, Congress enacted the National Levee Safety Act (NLSA) in title IX of the Water Resources Development Act of 2007, Pub. L. 110–114, Nov. 8, 2007, 121 Stat. 1288 (codified at 33 U.S.C. § 3301). The NLSA established a 16-member Committee on Levee Safety2 chaired by the Secretary of the Army. The Committee was required to report to Congress by May 2008 on “recomendations [sic] for a national levee safety program, including a strategic plan for implementation of the program.” 33 U.S.C. § 3302(c) (1).

The Committee, faced with administrative delays out of its control, could not begin work until October 2008. It filed its preliminary report with Congress in January 2009, eight months after the statutory deadline but only three months after its first meeting. COMMITTEE ON LEVEE SAFETY, DRAFT RECOMMENDATIONS FOR A NATIONAL LEVEE SAFETY PROGRAM (Jan. 15, 2009). The draft report was submitted to the Office of Management and Budget (OMB) for review at the same time, and it was made available to the public on the Internet, http://www.iwr.usace.army.mil/ncls/.

III. CLS Recommendations

The draft report made 20 specific recommendations for establishing and maintaining a national levee safety program. ASCE generally agrees with each of the recommendations. In the interest of brevity, however, ASCE will comment on what it believes are the most significant recommendations.

A. Establish a National Levee Safety Commission

ASCE strongly supports this recommendation. We believe the Commission should be modeled after the Nuclear Regulatory Commission, the Federal Energy Regulatory Commission, and other independent regulatory agencies in the Executive Branch. It should not be established within the Corps of Engineers, FEMA, or another federal department or agency.

The new agency ought to be granted regulatory authority over the nation’s federal and state dam safety systems. In other words, Congress should integrate the National Dam Safety Program now lodged in FEMA within the new body, to be called the National Levee and Dam Safety Commission.

The levee safety program should be expressly modeled on the National Dam Safety Program. That program requires the director of FEMA to prepare a strategic plan to establish goals, priorities, and target dates to improve dam safety; and ensure cooperation and coordination with state governments. The program also requires FEMAto provide assistance to assist states in establishing, maintaining, and improving dam safety programs and to establish the National Dam Safety Review Board to monitor state implementation (authorized under current law), to monitor the safety of dams in the United States, and to advise the Director on national dam safety policy.

Dam and levee safety programs need to be closely coordinated. In approximately half of the states, the dam safety program and the levee safety program already are united, frequently employing the same staff. For many states, overlaying this program with the dam safety program provides an immediate “home” and orientation to the state of how it can operate. This has the advantage of providing continuous technical oversight of the two programs and allows state officials to make rational budget choices for flood-control and water resources projects.

B. Develop Tolerable Risk Guidelines

ASCE agrees. Assessment of risk is a key engineering function. Congress should insist that the Commission must assess and communicate clearly to policymakers and the public how risk- and cost-benefit tradeoffs will impact levee performance and safety. They must take an active role in formulating public policy and in decision-making at all levels of government.

The level of risk also changes with time, depending on changes in the natural and man-made environment. Therefore, all risk analyses need to be updated as new information becomes available.

Local, state, and federal leaders — in concert with the engineering community — need to embrace a common risk-based decision support tool for planning and decisionmaking. Policymakers at all levels need to initiate and maintain an honest and open dialogue with all major stakeholders about the risks of living in a hurricane- and floodprone regions.

C. Change “Levee Certification” to “Compliance Determination”

ASCE concurs. The current FEMA “certification” program for levees, which requires the endorsement of a Professional Engineer, is a technical finding for the National Flood Insurance Program (NFIP). It is not, and was never intended to be, a representation that any accredited levee will provide for the safety, health, and welfare of the public.

In order for FEMA to accredit a levee on its NFIP maps, a Professional Engineer must certify that the system complies with all the requirements established by FEMA at 44 CFR 65.10 (b). Alternatively, a federal agency with levee design and construction qualifications may certify the levee satisfies the NFIP requirements. In either case, the engineer certifies that the levee has been adequately designed and constructed to provide protection against the base flood (a flood which has a one percent annual chance of occurrence, often called the 100-year flood).

There is a vast difference between a document that FEMA uses to prepare NFIP rating maps and a document that is prepared by a Professional Engineer, based on the appropriate standard of care, that assesses the risk to the public safety, health, and welfare posed by a flood-risk-reduction system such as a levee. Certification involves an evaluation of actual foundation conditions and structural integrity, a calculation of current hydrology (flood of record), and a study of historical records. Properly analyzing these data and records requires a high level of expertise as well as extensive effort.

To repeat, the FEMA rule mandating certification of non-federal levees requires a Professional Engineer to attest that the levee is able to protect property behind the levee from a 100-year flood. This might lead the public to believe—erroneously—that the levee could never fail in such a flood or that a 100-year flood is an engineering “safety standard” rather than an artificial construct for insurance purposes. This could cause the engineer to unintentionally be placed in serious ethical and legal jeopardy by appearing to confirm the “safety” of a structure that she had not designed. This is contrary to the ASCE Canon of Ethics and good public policy.

We want FEMA to develop and adopt a hazard-ranking system for NFIP rating maps that is based on either a) the maximum flood that will likely be experienced in an area (the Probable Maximum Flood) or b) a carefully developed plan of community development, land use, building codes, emergency preparedness (especially warning, evacuation, and risk communication), as well as an efficient and orderly system of indemnification for the inevitable losses when levees fail or are overtopped.

D. Provide Comprehensive Technical Materials and Direct Technical Assistance/ Develop a National Levee Safety Training Program

ASCE agrees. The national levee safety program should incorporate the elements of the National Dam Safety Program encompassing federal assistance to the states for to put into practice strategic planning, staff training, acceptable engineering practices, statebased safety standards, and other requirements found in 33 U.S.C. § 467f.

Respectfully submitted,

The American Society of Civil Engineers