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  September 16, 2014  
     
  Appealing FEMA's Newly Proposed Flood Maps
By Charles Katz-Leavy, Partner, and Mathew Todaro, Associate, Verrill Dana, LLP
 
     
 
 
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Katz-Leavy, along with Jim Nadeau of Nadeau Land Surveys recently joined MEREDA members for breakfast to co-present how to determine whether a property owner has grounds for an appeal and the various types of appeals that can be filed.  Read on to learn more about appealing FEMA's newly proposed flood maps. And, join MEREDA for our upcoming events

The roll-out of newly proposed flood insurance rate maps could hinder the rights of owners to develop their properties or dramatically increase insurance costs. In the coming weeks, communities across New England in close proximity to bodies of water will receive preliminary Federal Emergency Management Agency (FEMA) flood insurance rate maps.  In many instances, the new maps will shift flood zones further inland and upland, including more homes and businesses in high-risk zones.  Also troubling are the escalating rates for flood insurance. 

How does flood insurance work?

Flood insurance is generally required by mortgage lenders to finance real estate in designated flood zones.  To help alleviate such issues, Congress created the National Flood Insurance Program (NFIP) in 1968.  To participate in the program, communities must agree to develop management plans that reduce flooding risk.

What are the effects of the proposed maps?

In response to more frequent and damaging storms like Hurricane Katrina and Superstorm Sandy, FEMA has undertaken an effort to update floodplain maps.  FEMA’s maps illustrate regions prone to flooding by classifying them into various zones.  Property owners in zones deemed to have a higher risk of flooding pay higher premiums. Many real estate owners are frustrated by the proposed maps because they expand the high-risk zones. The enlarged zones may also inhibit a property owner’s ability to expand existing structures or build new structures.

What options do property owners have after the proposed maps are released?

After FEMA’s proposed maps are released to a municipality or “community”, two notices are published in a local newspaper. Following the second notification, a 90-day appeal period starts. 

Impacted Property owners should first inquire into whether the community plans to hire an engineering consultant to review and appeal the maps.  If the community does not intend to appeal, a concerned property owner should promptly consult an engineer and attorney to review their options.  If a community plans to appeal, property owners should determine whether the community’s appeal will provide relief to the individual property owner’s parcel.  If not, the property owner should hire an engineer and attorney to ensure property rights are protected.   

Property owners or their representatives can encourage the community to collect individual appeals and submit a collective appeals package to FEMA.  Pursuant to federal regulations, the community must provide detailed evidence, “that the elevations proposed by FEMA are scientifically or technically inaccurate”.  The burden of gathering such scientific evidence often falls on the property owners.

Should I appeal the proposed maps for my area?

In some communities, FEMA has received criticism for its proposed flood maps.  Individuals and communities appealing proposed maps contend that FEMA’s limited budget and tight timelines do not result in the most accurate or sophisticated maps.  Specifically in New England, FEMA’s methodology has been challenged for not accounting for protection provided by rocky and elevated coastlines.  Because more sophisticated methods can generate significant differences in flood zone elevations, New England communities have a strong incentive to ensure FEMA’s proposed maps are accurate.    

What happens once a community appeals a map?

If a community files an appeal within the 90-day window, it enters a period of negotiation with FEMA.  FEMA and the community (often with the property owner taking the lead) will compare expert data in an attempt to reach a position both parties find agreeable.  If middle ground cannot be reached, the matter may then be resolved through an Administrative Hearing or a process recently initiated by the U.S. Congress called the Scientific Resolution Panel (SRP).

The SRP is an impartial body of technical experts tasked with reviewing data from the community and FEMA.  The community must submit a written request to FEMA to initiate SRP review.  Before the process may begin, 60 days of “collaborative consultation” or negotiations (but no more than 120) must take place between FEMA and the community without reaching a resolution.  Additionally, if FEMA has already issued a Resolution Letter, the community has 30 days to submit an application requesting the SRP process.   

What if FEMA issues an unfavorable final determination?

The SRP process does not change the appeal options for a community, and SRP decisions are not subject to judicial review except for grave error.  A community (or property owner) that does not agree with the Administrator’s final determination may appeal to the United States District Court within 60 days.  Additionally, after the 90 day window has closed and the proposed maps have become final, an individual property owner may still possess options for appeal (such as an application for a LOMR or LOMA).

 
     
     
     
 

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