It sounded like a good idea: Modernize all the floodplain maps throughout the country and put them in digital format so that they can be easily accessed online. Unfortunately, like many good ideas, things can go wrong between conception and implementation. In this case, Michigan townships and their residents have to deal with new FEMA floodplain maps that are seriously inaccurate and now may have to pay to correct those mistakes. Read on to find how your township and your residents can deal with the new FEMA floodplain maps.
FEMA
Background
In 2004, the United States Congress directed FEMA to begin a new initiative it calls "map modernization," with the goal of updating and digitizing all the flood-plain maps throughout the country. In Michigan, the FEMA remapping program is administered by the MDEQ (Michigan Department of Environmental Quality) under a contract with FEMA.
FEMA has prioritized this effort by directing that the new maps be prepared first in the areas that it considers to be the most "flood-prone." In Michigan, the first counties to be re-mapped were Livingston, Huron, Barry, Genesee, and Midland. New floodplain maps have also been completed or are nearing completion in the counties of Bay, Berrien, Branch, Clinton, Eaton, Jackson, Kalamazoo, Kent, Oakland, St. Clair, St. Joseph, Washtenaw and Wayne. Other counties that are scheduled for remapping later this year include Allegan, Alpena, Calhoun, Charlevoix, Cheboygan, Chippewa, Clare, Grand Traverse, Gratiot, Hillsdale, Ingham, Ionia, Iosco, Isabella, Leelanau, Mason, Mecosta, Monroe, Osceola, Ottawa, Roscommon, Saginaw, Sanilac, Shiawassee, and Tuscola.
The Problem
Some communities in areas with new FEMA floodplain maps have discovered that many properties never before classified within flood hazard areas are now shown by the new maps as within "Zone A" or some other Special Flood Hazard Area (SFHA). Property owners within such zones who have existing mortgages will be contacted by their banks or mortgage companies and instructed that they must purchase flood insurance. If the township participates in the NFIP, the residents will be able to purchase federal flood insur-ance at a cost of hundreds of dollars. If the township does not participate, the cost of insurance will be even more.
Unfortunately, because of errors or limitations in the topographical data used by FEMA contractors to prepare the new maps, many of the properties shown within the flood hazard zones are actually above the Base Flood Elevation (BFE), and therefore should not be shown in the flood hazard zones. For example, the property could be located on a hill overlooking a lake, river or drain, yet still be shown within a flood hazard zone. FEMA refers to these properties as "inadvertent inclusions." Once the new floodplain maps have been approved and the appeal periods have run, however, these properties are presumed to be flood hazards and must purchase expensive flood insurance.
Officials in counties where the new floodplain maps are in effect are receiving daily pleas from residents who are being forced to purchase flood insurance. In some cases, the monthly cost of flood insurance may exceed the owner’s mortgage payments. When so many Michigan residents are struggling financially, this new requirement to purchase flood insurance can impose a severe and unnecessary burden.
The LOMA Process
For townships in the five counties where the new floodplain maps are already in effect (Livingston, Huron, Barry, Genesee, and Midland), the options to challenge errors in the new maps are fairly limited. This is because FEMA considers that it has already conducted extensive review proceedings on the new maps in those counties (see Mapping Review and Appeals section below), and presumes that those maps are accurate.
If an owner in one of those five counties believes that the property is wrongly included in a flood hazard zone, the process to challenge that classification is known as a Letter of Map Amendment (LOMA). The owner must (at his own cost) hire a professional engineer or surveyor to prepare an elevation certificate for the property and other scientific data to es-tablish the topography of the property and the BFE, then submit a form to receive a determination that the property is above the BFE. According to FEMA, this process should normally take about 4-6 weeks.
If the structure was built on property that was filled, the owner needs to apply for a LOMR-F (Letter of Map Revision Based on Fill), which requires information and technical data in addition to the LOMA ap-plication. In addition, although there is no fee for a LOMA, FEMA charges a fee of $425 for a single-lot or single-structure LOMR-F, and charges $800 for a multiple-lot or multiple-structure LOMR-F.
Property owners who want to use fill to build a new structure on property included in a flood hazard zone are required to apply for a CLOMR-F (Conditional Letter of Map Revision Based on Fill). The information needed for a CLOMR-F is the same as for a LOMR-F. FEMA charges a CLOMR-F fee of $500 for a single lot or $800 for multiple lots.
According to the MDEQ, it may also be possible for a township to apply for a LOMA on behalf of a number of parcels within a watershed. Group LOMAs have been processed by FEMA, and there is a FEMA LOMA "depot" that can assist in such matters. For townships that are finding a large number of errors in the approved maps, this may present a way for the township to assist owners in correcting their map designations
Note that an owner can be required to purchase flood insurance even if the owner has applied for a LOMA or a LOMR-F, and may be required to con-tinue to pay flood insurance premiums while the application is under review by FEMA. According to FEMA, issuance of a LOMA removes the federal mandatory flood insurance requirement, but lenders still have the option of requiring flood insurance. If the lender accepts the LOMA and does not require the purchase of flood insurance, FEMA states that the current year’s flood insurance premium can be refunded to the property owner.
Mapping Review and Appeals
Prior to approving new maps in any county, FEMA and MDEQ initiate a multi-step process of contacts and open forums with local officials and residents. This begins with "pre-scoping" activities and "scoping" meetings, in which FEMA solicits informa-tion from local officials to assist in the mapping efforts. It is very important for townships to actively participate in this process.
Based on the available information, FEMA will produce preliminary maps for review by local officials and residents. After the preliminary maps are released, FEMA will coordinate a local "open house" to meet with local officials about the preliminary maps and address questions by residents. Township participation in this process is crucial.
After the open house, if FEMA has changed any BFEs on the floodplain map, it will publish notice in the Federal Register and notify each township of this publication. This publication begins a 90-day appeal period, in which local officials and residents can submit new flood data or map corrections for consideration by FEMA.
If there are any errors in the maps, it is essential to raise them for resolu-tion by FEMA during the appeal period. FEMA will resolve any protests and appeals filed within the 90-day period and will issue a Letter of Final Determination
The new maps become effective 6 months after FEMA issues its LFD. The entire remapping process can take 2-3 years from the initial pre-scoping activities to the final effective date.
As the preparation of a county's flood insurance maps nears completion, townships within the county are sent a Map Modernization Map Adoption Information Letter, which provides information advising about the process of adopting the new floodplain maps and becoming a participat-ing municipality in the NFIP. If your township does not participate in the NFIP, flood insurance is only available to your residents in the private insurance market at much higher rates, and you may not be eligible for some forms of federal dis-aster assistance in the event of serious flooding.
Townships are well-advised to participate actively and carefully at each step of the FEMA remapping process. Mistakes and inaccurate maps will be more likely avoided if township officials provide detailed input during the scoping process, review the preliminary maps prepared by FEMA’s contractors, and bring mistakes to the attention of FEMA during the appeals process, since local officials are often more familiar with the topography and history of the area.
Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys,
To link to this Blog, copy and paste the URL below into your blog or homepage. Using this link will ensure access to the Blog, even if it is archived.