Letter to the BOS from David Tunno re: FEMA flood map recommendations

9/27/2011

From:  David Tunno

To:  The Calaveras County Board of Supervisors

Re:  FEMA flood map recommendations

The recommendations that follow have to do with the revised flood maps FEMA is currently producing for this county.  They are provided with the understanding that, while much of what FEMA has done and is doing is with the authority granted by Congress, ultimately, the county has the authority to accept or reject FEMA’s flood map.  Thus, that is a power the county can exercise to protect its citizens.

To address some of the inequities that have given rise to complaints and even law suits against FEMA, and to protect the rights of the property owners affected by the revised flood map, I recommend the board impose on FEMA the following requirements as a condition for the board to approve the new flood map:

1.      Notify FEMA that for all parcels it adds to the flood map (over those which pre-existed FEMA’s involvement), it must include proof, by competent engineering, that the addition is justified.

2.      With respect to the aforesaid parcels, where there is a structure on the parcel, FEMA must include proof, through competent engineering, that said structure is or is not also in the flood zone.

Compliance by FEMA to both requirements would accomplish the following:

Requirement #1 would remove the stigma associated with FEMA’s initial flood map.  That being that properties were added (over 5,000) to the county’s previous flood map without explanations, or with explanations that, in many cases, have proven to be completely erroneous.

Requirement #2 would place the onus for proving the need for the forced insurance policies on structures onto the agency (FEMA) that is imposing those forced policies (Note:  the banks impose the policies, but FEMA requires them to do so under the 1974 Flood Act).  I submit this is eminently fair and justified as a measure to correct the current policy requiring the property owner, at great expense, to provide that proof in the negative.  There is nothing in the Flood Act that places the onus on the owner to provide that proof, so there is no known impediment to this action by the county.

Also with respect to #2, the requirement includes the “is or is not” proof language regarding the structure with respect to the flood zone.  That is justified because when a parcel is placed in a flood zone, that status devalues the property and places a “black mark” on it forever.  The inclusion of the “is not” requirement completes the picture as far as that property is concerned.  It is a balancing factor.  Through the property disclosure documents relevant to a resale procedure, it assures the prospective buyer that the dwelling has affirmatively been found to be outside of the affected area.  That language also produces no further burden on FEMA, which in complying with requirement #2, would have to perform the same engineering.

If FEMA does not comply with requirements 1 & 2, the following response is recommended:

3.       Present FEMA with the flood map prepared by the county previous to FEMA’s involvement as the flood map the county will approve going forward.  FEMA/NFIP can then apply its mandatory insurance requirements to property owners in flood zones on that map.

It is understood that FEMA has threatened to withhold flood insurance in any county that does not accept FEMA’s flood maps.  That threat appears to be based on FEMA’s assumption that the 1968 Flood Insurance Act (and as amended) entitles it to withhold flood insurance in counties that do not cooperate with FEMA (my paraphrasing).

It is my belief that FEMA cannot deny flood insurance to any property owner, especially a property owner at risk for flooding.  FEMA, through NFIP is the only domestic underwriter of flood insurance.  Therefore, FEMA is the only supplier of an “essential service” and all that that implies under U.S. and/or state law.  For that reason, I believe the service cannot be denied; however, the legal issue would need to be researched.

Nevertheless, even if FEMA believes it has the power to deny the insurance, I do not believe it would exercise that power.  I have found no instances where FEMA has denied insurance to an entire county, but more to point, I believe FEMA would not dare to exercise such an option.  To do so would call the kind of attention to FEMA (attention by Representatives and Senators) that it should not want.