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A major question for property owners, of course, is whether to appeal FEMA's proposed flood maps. 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 allow for the most accurate or sophisticated mapping processes. Specifically, in New England, FEMA's methodology has been challenged for not accounting for the sheltered nature of rocky and elevated coastlines. Because the use of 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 will enter into a period of negotiation with FEMA. During that period, 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 a middle ground cannot be reached, the matter may then be resolved through either an Administrative Hearing or through a process recently initiated by the U.S. Congress called the Scientific Resolution Panel (SRP).
Administrative Hearings are conducted by a three-member panel of non-FEMA employees, with the Federal Insurance Administrator's chief council representing FEMA. The scope of the review is limited to the data presented during the 90-day appeal and the community retains the burden of proving FEMA's initial determination is not scientifically or technically sound. Within 45 days of the hearing, the Board will deliver its written opinion to the Administrator for use in reaching its final determination.
A community may also elect to utilize the SRP for its review. The SRP is an impartial body of technical experts tasked with reviewing the data from both the community and FEMA. To initiate an SRP review, the community must submit a written request to FEMA. Before the SRP 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 from the date of the letter to submit an application requesting the SRP process. After the SRP has reviewed the relevant submissions, the Panel then issues a written decision to the FEMA Administrator for guidance in reaching a final determination.What if FEMA issues an unfavorable final determination?
The SRP process does not change the appeal options for a community, and the SRP decision is not subject to judicial review except in the case of grave error. A community (or property owner) that does not agree with the Administrator's final determination may appeal the decision to the U.S District Court within 60 days of the date of the final determination. 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); however, property owners should be aware that appealing during the 90-day window may be more likely to yield the desired results than waiting until after proposed maps have been finalized.
Charles M. Katz-Leavy is an attorney at Verrill Dana LLP, which has offices in Maine, Massachusetts, Connecticut and Washington, D.C. Charlie handles commercial and residential real estate transactions. Thanks to Mathew Todaro who assisted with this article.
The authors found the following resources helpful:
FEMA Frequently Asked Questions, available at faq.fema.gov
FEMA Map Information eXchange (FMIX) Hotline to speak to a FEMA Map Specialist: 1-877-FEMA MAP (1-877-336-2627).
Appealing FEMA's Proposed Flood Maps