Federal Rules Fail to Take Local Laws Into Account

From the WSJ: After a Hurricane, FEMA Makes the Disaster Drag On. Federal rules fail to take local laws into account, making it especially hard for the poor to get aid. by Parker Abt

Hawaii rarely encounters hurricanes; none have made landfall since 1992. Yet within three weeks this month, Hurricane Hector sideswiped the islands and Hurricane Lane flooded them. Homeowners who lack sufficient insurance will now expect the Federal Emergency Management Agency to make their houses habitable again. But if recent history is any guide, Hawaiians should brace themselves. When FEMA rules conflict with local ones, the agency’s legalistic argle-bargle sometimes requires a decade to sort out.

Hurricane Harvey shows what can go wrong. It lumbered through Texas, unloading 5 feet of rain, one year ago. Yet 8% of survivors have not returned to their homes, as per a recent Kaiser Family Foundation study. Some low-income families had their aid requests denied by FEMA because of “insufficient damage” to their homes. But FEMA also denied aid to homes with roofs blown off or mold creeping up the walls.

A plausible explanation for at least part of the discrepancy is that FEMA’s comparatively strict aid policies are in conflict with Texas’ minimal housing regulations. FEMA aims to restore property to “safe and sanitary” condition while being careful not to make “improvements or additions to the pre-disaster condition.” At the same time, Texas allows families to build their homes to a lower standard than what FEMA considers “safe and sanitary.” In other words, a house can be good enough for Texas but not for FEMA. Consequently, the only way FEMA can rebuild it to the “safe and sanitary” standard is by contradicting the “no improvements” rule.

In 2008 when Hurricane Dolly hit Texas, FEMA solved the paradox by invoking an unwritten rule called “deferred maintenance.” This allowed federal inspectors to deny aid if they thought a home’s poor condition was caused by lack of care, not the hurricane. In the colonias of South Texas, where substandard housing is the norm, thousands of families were refused relief on this basis. People who couldn’t afford to upgrade in good times were punished at their most vulnerable. It took eight years in court for a judge to declare the rule illegal in 2017 and order FEMA to pay up.

In Puerto Rico, FEMA is denying aid to those who do not possess the deeds to their homes. Although reasonable on its face, this rule is unfair given that 35% of Puerto Rican homes are not registered with the government and informal land development is locally accepted. As a result, FEMA has denied about 60% of Puerto Rican requests under its program for individuals and households.

For those trying to navigate the FEMA appeals process, prospects are grim. The rules are so complicated that lawyers are often necessary at every step, which is a huge burden on low-income families. One Puerto Rican obtained a letter signed by local officials saying he owned his land, yet FEMA still rejected him as unable to prove it. As of July, FEMA had denied or failed to respond to 79% of appeals.

In Texas and Puerto Rico, rules that sounded good in theory excluded poor homeowners in practice. It is inexcusable that FEMA did not iron out such wrinkles ahead of time. Americans whose lives differ from the federal bureaucracy’s expectations should not be abandoned when disaster strikes.

Hawaiians can expect similar glitches as FEMA rushes to their state, which has some of the nation’s most restrictive land-use regulations. More local rules create more chances for discrepancies. Low-income homeowners who cannot afford to satisfy modern building codes must remain wary of FEMA’s “safe and sanitary” boondoggle. Native Hawaiians must navigate the intersection of FEMA rules and their unique status.

Don’t forget, too, the 18,000 Hawaiians in public housing, a result of a residential market so expensive that families making $93,000 a year officially qualify as low-income. Rather than having to deal with only FEMA, they will have to stay vigilant to ensure the alphabet soup of responsible federal and state agencies makes timely repairs. “I’m from the government, and I’m here to help” is never a reassuring line, but in the wake of a natural disaster, it’s downright ominous.

Mr. Abt is a research fellow at the University of Pennsylvania’s Wolf Humanities Center.

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