In part, the Current Operations Appropriations Act of 2026 (S.L. 2026-41) amended provisions of the state’s Emergency Management Act (“EMA”) connected to hazard risk management activities. More specifically, the legislation (1) updated the EMA’s definition of “[h]azard risk management” in G.S. 166A-19.3; (2) made explicit local governments’ authority to engage in certain hazard risk management activities; and (3) amended the EMA’s language around liability protection, especially related to hazard risk management activities. Many of these changes relate to authority or protection for local governments or nonprofits obtaining real property for hazard risk reduction, including potentially through property buyout programs. The changes may also affect current litigation. This post provides an overview of the new EMA language.
Updating the EMA Definition of Hazard Risk Management
The legislation updated the EMA’s definition of “[h]azard risk management,” which now includes
[t]he systematic application of policies, practices, and resources and acquisition of real property to the identification, assessment, and control of risk associated with hazards affecting human health and safety and property, for hazard mitigation purposes or in accordance with a hazard mitigation program, plan, or activities funded by State, federal, or philanthropic sources.
S.L. 2026-41 § 5A.19.(a) (emphasis added to show new language). Arguably, the old definition of “[h]azard risk management” would have already covered many efforts to obtain real property. See id. Regardless, the amended language makes explicit how certain “acquisition of real property” qualifies as hazard risk management.
This language also creates a clearer connection between “[h]azard risk management” and local governments or nonprofits engaged in property buyout programs. As this post highlights, communities experiencing flooding might, for example, consider mitigating risk to “lives and property” through “purchas[ing] and demolish[ing] flood-prone property.” And local governments and nonprofit entities might seek funding for this type of activity. As the post also points out, one potential funding source for this type of property buyout has been the federal Hazard Mitigation Grant Program (“HMGP”). See 44 C.F.R. § 206.434. The HMGP provides hazard mitigation funding to states, which can award funds to eligible local governments or nonprofits in a variety of areas, including related to “[p]roperty acquisitions and relocation.” Id. (emphasis removed). To be eligible, local governments must have certain mitigation plans that meet federal standards. See id. The legislation’s added language, mentioning “acquisition of real property” related to “hazard mitigation purposes or in accordance with a hazard mitigation program, plan, or activities funded by State, federal, or philanthropic sources” creates a more explicit connection between the idea of “hazard risk management” and a program like the HMGP that may fund local government and nonprofit property buyouts.
Updating the EMA’s Grants of Authority to Local Governments Related to Hazard Risk Management
Beyond amending the definition of “hazard risk management,” the legislation then also updated the EMA to explicitly allow local governments “[t]o direct and coordinate the development of emergency management and hazard risk management plans and programs in accordance with” certain state and federal standards. Id. § 5A.19.(b) (emphasis added to show added language).
Local governments may have already been authorized “[t]o direct and coordinate the development of” many types of “hazard risk management plans and programs,” including ones related to certain property buyouts. Specifically, many hazard risk management plans and programs may also have already counted as “emergency management… plans and programs” under the EMA. See G.S. 166A-19.3; G.S. 166A-19.15. In addition, local governments already had general authority to “acquire… [an] interest in real… property for use by the [local government]” and more specific authority to “acquire, by purchase, exchange, or condemnation an existing structure located in a flood hazard area in the area regulated by the local government if the local government determines that the acquisition is necessary to prevent damage from flooding.” G.S. 153A-158 (counties); G.S. 160A-240.1 (municipalities); G.S. 143-215.55. Taken together, these powers arguably may already have authorized a variety of local government property buyout efforts for hazard risk reduction.
Regardless, the law may now give local governments broader and more explicit planning and programming authority to address hazards, including through property buyouts. Emergency management involves “measures taken… to minimize the adverse effect of any type [of] emergency.” G.S. 166A-19.3(8) (emphasis added). But in the EMA, an “emergency” only involves two types of things: (1) “[a]n occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from” certain specified causes or (2) certain supply chain disruptions affecting how local governments provide or restore “essential services.” Id. § 19.3(6). On the other hand, hazard risk management, addressing “hazards affecting human health and safety and property,” may be broader than emergency management in some sense; the word “hazard” seems like it might cover a more general category of dangers than just the emergencies discussed in the EMA, including potentially smaller-scale or less severe issues. For instance, property buyout plans and programs just aimed at reducing risk from minor, isolated flooding that would not cause an emergency do not seem to count as “emergency management… plans and programs.” But they might well qualify as “hazard risk management plans and programs.” Again, now, state law gives local governments some explicit authority “[t]o direct and coordinate the development of… hazard risk management plans and programs.” S.L. 2026-41 § 5A.19.(b)
Updates to Liability Protections for Hazard Risk Management
In the aftermath of Hurricane Helene, some counties in Western North Carolina pursued the HMGP funds described above to buy out flood and landslide-impacted residential properties. Concerns arose about the potential liability associated with county-owned buyout properties, including the possibility of future damage to surrounding properties by landslide or erosion. The legislation amended language related to the protection from liability that local governments (and their staff), certain entities, emergency management workers, and nonprofits might receive in this area in three key ways.
First, before the new legislation, the EMA classified “activities relating to” in the EMA “or elsewhere in the General Statutes” as “governmental functions” for purposes of governmental immunity. G.S. 166A-19.60 (emphasis added). The doctrine of governmental immunity bars negligence and other tort claims against local government units engaged in the performance of governmental, not proprietary, functions, unless the units have waived their immunity through, for example, the purchase of liability insurance, to the extent of coverage. See G.S. 160A-485 (municipalities); 153A-435 (counties).
As a result of the legislation, the law now also explicitly classifies “activities relating to… hazard risk management” in the EMA “or elsewhere in the General Statutes” as “governmental functions” for purposes of governmental immunity. S.L. 2026-41 § 5A.19.(c) (emphasis added to show new language). This legislative change means that the defense of governmental immunity is available to local governments engaged in hazard risk management activities (in addition to emergency management activities).
Second, before the new legislation, the EMA also afforded the State, local governments, certain entities, such as corporations and associations, and emergency management workers some legal protection when engaged in certain emergency-management-related activities. See G.S. 166A-19.60(a). Specifically, those entities and individuals may be protected from liability for “the death of or injury to persons, or for damage to property as a result of any such activity,” except sometimes where there is “willful misconduct, gross negligence, or bad faith.” Id.
The legislation adds certain protection from liability for these same entities and individuals related to “acquiring real property for hazard risk management purposes so long as the real property is held consistent with all applicable legal requirements, including any deed or easement restrictions or covenants.” S.L. 2026-41 § 5A.19.(c). For context, a property buyout program might require a restriction, like a deed restriction, on future uses of the acquired property. See 44 C.F.R. §§ 80.1, 80.15, 80.17, 80.19.
Third, before the new legislation, this second set of protections did not explicitly apply to nonprofits, which, again, might be involved with property buyout programs for hazard risk management. The legislation expressly extends those protections, including the added protection related to real property acquisition, to “nonprofit entit[ies].”S.L. 2026-41§ 5A.19.(c). The amended version of the EMA defines a nonprofit entity as “an entity exempt from taxation under section 501(c) of the Internal Revenue Code.” Id. The legislation also explicitly exempts nonprofits engaged in “acquiring and maintaining real property for hazard risk management purposes” from the immunity limitations that apply to firms, partnerships, associations, or corporations under G.S. 166A-19.60(b) of the EMA. Id. For example, the immunity available to those entities engaged in emergency or hazard risk management activities does not apply when the entity or its agent “caused in whole or in part the actual or imminent emergency or . . . necessitated emergency management measures.” G.S. 166A-19.60(b)(2). This immunity limitation would not apply to nonprofits when acquiring or maintaining real property for hazard risk management purposes.
Arguably, some hazard risk management activities already fell under the broad category of emergency management, defined under the EMA as “those measures taken by the populace and governments at federal, State, and local levels to minimize the adverse effect of any type emergency, which includes the never-ending preparedness cycle of planning, prevention, mitigation, warning, movement, shelter, emergency assistance, and recovery.” G.S. 166A-19.3(8). So people or entities engaged in those activities may have already been protected under the EMA before these amendments. Nonetheless, the EMA changes described above make explicit that certain people or entities engaged in “activities relating to… hazard risk management” and specifically the “acqui[sition] of real property for hazard risk management purposes” receive some protection. S.L. 2026-41 § 5A.19.
All of the changes in the law were made “retroactively effective January 1, 2025, and appl[y] to causes of action arising on or after that date.” Id. at § 5A.19.(d) (emphasis added). So these amendments may impact existing litigation in this area.
Related Resources
Readers interested in a broader overview of emergency management liability for local governments could read this post.
Readers might also be interested in learning more about flood mitigation property buyouts. The Division of Emergency Management (“North Carolina Emergency Management” or “NCEM”) of the North Carolina Department of Public Safety (“DPS”) works with local governments and property owners on certain grant-funded property buyouts. Readers could visit this page on DPS’s website to learn more. The page addresses frequently asked questions related to property buyouts for local governments and property owners. The page also provides contact information for follow up with DPS staff.
Readers interested in learning more broadly about the HMGP or other federal hazard mitigation programs could review the Hazard Mitigation Assistance Program and Policy Guide from the Federal Emergency Management Agency (“FEMA”).
Readers seeking funding for hazard mitigation efforts could consider looking on the NC Local Government Disaster Recovery Portal.
