Saturday, March 12, 2011

FEMA Administrator Fugate Mandates Further Insolvency for the NFIP

One day before a hearing in the Congress on NFIP reform held largely to address solvency issues for the NFIP and the drain on the federal fisc, Administrator Fugate of FEMA issued the following mandatory directive to the NFIP mapping staff and its contractors:



Agency to Account for Existing Levees, Flood Control Structures in Assessing Risks


March 10, 2011

WASHINGTON, D.C. – U.S. Senators Thad Cochran (R-Miss.) and Roger Wicker (R-Miss.) today praised the Federal Emergency Management Agency (FEMA) decision to end its current policy of disregarding some levees and flood control structures in the process of updating Flood Insurance Rate Maps (FIRMs).

FEMA Administrator Craig Fugate today informed the Senators that he has directed his agency to discontinue the practice of using “without levee” modeling in the FIRM modernization process. Early last month, Cochran, Wicker, and U.S. Senators Dick Durbin (D-Ill.) and Mark Pryor (D-Ark.) spearheaded a letter to Fugate that was signed by 27 Senators—14 Republicans and 13 Democrats in all—asking that “without levee” modeling be terminated because it completely wiped some flood control structures off the map instead of more precisely determining their effectiveness.

“I appreciate Administrator Fugate’s common sense decision to use modeling methods that more accurately reflect existing flood protection around the country. Recent heavy rains in Mississippi remind us that flood risks are real and that the flood map modernization process is a necessary part of protecting ourselves. Those at risk should purchase flood insurance,” Cochran said. “This is just the beginning of our effort to find more practical solutions that protect communities and jobs as Congress considers a broad reauthorization of the National Flood Insurance Program.”

“I am glad that FEMA was willing to work with us and take another look at the methodology so all communities receive fair treatment in determining their flood zone status,” said Wicker. “It makes sense to take existing flood control structures into account. This should be a significant help to residents in areas that faced higher insurance rates.”

In correspondence delivered to Senators today, Fugate announced that he has directed FEMA staff to end the use of the “without levee” standard, agreeing with the Senators that his agency has the technical ability to affordably and efficiently produce more accurate flood maps.

“In order to increase the credibility of our Flood Insurance Rate Maps in areas where levees are not accredited, I have directed my staff to replace the ‘without levee” modeling approach with a suite of methodologies that are technically-sound, credible and cost-effective,” Fugate wrote. “The approach will better meet the needs of our citizens while providing more precise results that better reflect the flood risk in areas impacted by levees.”

Fugate also indicated that FEMA “will temporarily withhold issuing final determinations for those communities whose levees do not meet accreditation requirements and would clearly benefit from this new approach.”

FEMA indicated that mapping will be delayed by a matter of months in these situations as it determines the methodologies and policies it will have to put in place to replace the “without levee” approach. As it moves forward in making these determinations, FEMA has said it would engage the public to ensure the new approach is suitable for those affected.

The FEMA Administrator’s decision addresses the concerns raised by the Senators, who argued that discounting the existence of uncertified levees and flood control structures ignored actual flood protection and could require property owners in those areas to purchase National Flood Insurance Program policies unnecessarily.

If FEMA determines an area has a 1 percent annual chance of flood, property owners in that area are required to purchase National Flood Insurance Program coverage to protect against such hazards if their mortgage is backed by the federal government. Communities across the country have complained that FEMA and the Army Corps of Engineers have disregarded locally-funded flood control projects and repairs that may provide some level of actual protection in the development of the new flood maps.

Cochran, Durbin, Pryor and Wicker have joined forces to continue to seek out bipartisan, responsible and cost-effective solutions to the challenges facing communities protected by flood control infrastructure.

In addition to Cochran, Durbin, Pryor and Wicker, the February 3 letter to Fugate was also signed by Senators Lamar Alexander (R-Tenn.), John Boozman (R-Ark.), Roy Blunt (R-Mo.), Mike Crapo (R-Idaho), Mike Enzi (R-Wyo.), Kirsten Gillibrand (D-N.Y.), Tom Harkin (D-Iowa), Kay Bailey Hutchison (R-Texas), Mike Johanns (R-Neb.), Mark Kirk (R-Ill.), Amy Klobuchar (D-Minn.), Mary Landrieu (D-La.), Frank Lautenberg (D-N.J.), Claire McCaskill (D-Mo.), Jeff Merkley (D-Ore.), Jerry Moran (R-Kan.), James Risch (R-Idaho), Pat Roberts (R-Kan.), Charles Schumer (D-N.Y.), Jon Tester (D-Mont.), David Vitter (R-La.), Jim Webb (D-Va.) and Ron Wyden (D-Ore.).

An identical letter from the House of Representatives to Fugate on Feb. 18 was signed by 49 Members of Congress."

This mandate directly undermines Congressional efforts to reform the NFIP and limit taxpayer exposure to the NFIP.

Personally after a cursory review of the Administrators position I find no legal basis in the NFIP statutory scheme for such a decision. See 42 U.S.C. 4001 et seq.

If I am correct this direct undermining of program objectives should be thoroughly reviewed by the WHITE HOUSE and other impacted federal agencies. During my time in FEMA 1079-1999 OMB understood the NFIP and made sure that NO, repeat NO credit was taken in advance for structural protection works that were substandard, non-federal, and only projected to be completed some day. Once again FEMA's failure to understand federal water policy and the Principles and Standards that guide water resource issues has reared its ugly head.

Since I no longer in the practice of Law and have not been since October 1, 1999, I can champerously recommend a massive declaratory injunctive action against FEMA and DHS and permanent injunction against this decision by Administrator Fugate.

It would be interesting to see the adminstrative record behind this decision, lack of public comment, internal dissents, legal opinions etc in the administrative record. If none of the above the decision may be a classic arbitrary and capricious decision by a high school grad with EMT background that has no understanding of the NFIP or administrative law.

To all those who may well drown or suffer loss from incomplete substandard levees credited by the NFIP I am so sorry in advance for your suffering.