Introduction
To this point, this floodplain text has established the basis for what a floodplain
management program must include and the state and local requirements necessary
to meet the National Flood Insurance program (NFIP) requirements and the local
flood ordinance. Now that your community is participating in the NFIP, how do
you set up your program and make it work? Besides the development permit, what
tools are available to enforce local program regulations and to monitor compliance.
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Enforcing Local Ordinances
A floodplain ordinance cannot effectively reduce the severity
of flood damages unless it is properly enforced. Adequate, uniform and fair
enforcement requires that:
- All new development or improvements to existing development must
have a permit.
- All development must adhere to the standards of the NFIP.
Communities need to establish a procedure to ensure these two requirements
are met. For example, the best way to ensure the first requirement is to have
a PERMIT certificate displayed at the development site in full view. Such a
certificate should be brightly colored so it is easily seen. It should be printed
on durable material to withstand the weather during the construction period.
If construction is taking place without a permit, it can be readily observed.
Communities can ensure the development is built to NFIP standards by having
the local administrator make inspections during the construction period. Such
inspections should be documented in the project file.
After a structure is built, the NFIP regulations require a community to "obtain
and maintain the elevation of the lowest floor or the floodproofed elevation
of all new or substantially improved structures". The burden of providing
this requirement is on the permit applicant though proper submittal of elevation
certificates.
THE LEGAL BASIS
There are important reasons why your community must enforce its floodplain management
ordinance. First and foremost is the need to protect the lives and property
of the community's residents, both present and future. Second is the need to
meet state and federal requirements agreed to when the community applied to
participate in the NFIP, Your community has the same responsibilities and enforcement
powers for floodplain management as it does for other code-related violations
(such as Fire/Building/Electrical and Plumbing).
Although one violation may not cause a measurable increase in risk or damage,
the cumulative effects can be devastating. By allowing violations to go unabated,
the community creates an atmosphere and establishes precedent that may make
future enforcement much more difficult. It is imperative that the communities
actively enforce its floodplain management ordinance to insure that all new
development is compliant and to protect existing development from the increased
risk of flooding.
The basis for enforcement of any ordinance/code is the Penalty Section, which
prescribes the action local officials can take to enforce the community's ordinance/code.
The authority for state, county, or municipal floodplain boards to enforce
floodplain management regulations is provided in 82 OS 2001, §1604.
There are other statutes available to community officials that can be used
to assist in the enforcement of floodplain management. These other statutes
include Titles 11, 19, 50 and 74 of the Oklahoma Statues. Titles 11 and 74 are
for cities and towns, Titles 19 and 74 are for counties and Title 50 is for
dealing with public nuisances. Planning, zoning and land use can be regulated
through these authorities. More specifically, general authority may be found
in Article 22 of Title 11 of the Oklahoma Statutes, which provides for abatement
safety hazards, dilapidated buildings, weeds, trash, junk cars and unsanitary
conditions. In summary, communities in Oklahoma have the basic legislative tools
to deal with situations that may jeopardize their floodplain safety.
IMPACTS OF ORDINANCE VIOLATIONS
Over 370 communities, counties and tribes in Oklahoma have adopted floodplain
management ordinances that regulate development and establish special conditions
for development in the floodplains.
Development in the floodplain falls into six categories, construction (including
mining, dredging, excavating and drilling operations), filling, grading, excavating,
paving, and storage. It is important for the enforcement official to know what
constitutes each of these activities and the impact of those activities that
do not meet the requirements of the community's ordinance.
- CONSTRUCTION. Construction is the act by which land is changed by
the intervention of man or any man-made change to improved or unimproved
real estate. Construction is commonly applied to the erection of buildings
and other structures; however, it also includes any action that results
in a man-made change to the existing character of a parcel of land.
Floodplain construction may take several forms:
- Construction, reconstruction, repair, replacement, rehabilitation,
or any addition to a building;
- Installing a manufactured home on a site or installing a travel
trailer or recreational vehicle on a site (for more than 180 days);
- Construction or erection of levees, dikes, walls, and fences;
or
- Mining, dredging, drilling operations, construction of roads,
bridges, jetties, or similar projects.
- FILLING. Filling is the act by which a parcel of land is built-up
by the placement of earth, gravel, or man-made substance (i.e., concrete,
rubble, trash, etc.). Placing fill in a floodplain reduces its capacity
to store water and can result in higher flood elevations or increased
velocities elsewhere in the community, thereby causing new or increased
damages.
- GRADING. Grading or regrading is the act of sloping or shaping the
earth's surface. It may be for creating hills or berms or sloping to
provide for positive drainage. While grading may not affect storage,
it can block conveyance. In addition, grading to remove meanders from
a stream or clearing out a channel bottom may cause the velocity of
the stream to increase. Increased velocities can increase the danger
to lives, increase damages to buildings and structures, and cause erosion.
- EXCAVATING. Excavating is the act of removing a portion of the floodplain.
Excavation may involve the removal of soil completely from the floodplain
or depositing it in another portion of the floodplain. If the borrow
material is placed in another part of the floodplain, conveyance could
be affected. In addition, excavation could seriously affect stream or
water quality or downstream erosion.
- PAVING. Paving is the act of hardening the surface of a parcel or
part of a parcel of land, most often with man-made materials. While
paving may not directly affect the flood elevation at the site, it can
increase the run off and velocity which can create downstream erosion
and increased flood heights.
- STORAGE. Storage includes placing supplies, materials or equipment
below the base flood elevation in a floodplain. The community should
pay particular attention to the storage of toxic, flammable and buoyant
materials since they pose a threat to human life and safety.
Buoyant materials pose a threat since they can be washed into a downstream
structure causing a damming effect and additional damage to other structures.
The community should also pay attention to the means of elevating stored materials
to assure that the means are structurally sound and secure. Structural failure
could lead to the loss of life and property. Anchoring is one of the more important
forms of securing structures both in and out of a floodplain.
Preventing increased damage is the primary objective of floodplain management.
To accomplish that objective, any type of activity that could block or divert
water, increase velocities, or send floodwater onto properties that would not
otherwise be flooded must be regulated. It is the community's responsibility
to review and evaluate the impact of all floodplain development and to approve
and permit only the activities that meet the requirements of the local floodplain
management regulations. The community is responsible to prevent the negative
effects of unwise and/or improper development in the floodplain and ensure no
adverse impact.
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Addressing a Violation
The ways to resolve a violation are as varied as the types of
violations that may occur. There are, however, two common threads that hold
all violations together: either the violator did not obtain a permit prior to
construction or the violator did not follow the requirements of the approved
permit application. In either case it is the community's responsibility (normally
the Floodplain Administrator) to ensure that the regulation requirements are
met.
DISCOVERY, NOTIFICATION, AND INSPECTION
Once a community has discovered or received notification of a possible violation,
an inspection should be scheduled. This action may be as simple as stopping
and talking to the violator and receiving his/her assurance that the violation
(dumping trash or fill in a drainage ditch or failing to post his permit) can
and will be corrected.
If the violation cannot be resolved on the spot, the inspector may need to
check the code and site information before visiting the site. Essential information
includes:
- Legal description of the property;
- Property owners name and address along with any property identification
numbers;
- Flood Insurance Rate Map (FIRM), Flood Boundary Floodway Map (FBFM) and/or
Flood Hazard Boundary Map (FHBM);
- The base flood elevation; and
- The lowest floor elevation of the structure.
If there is an active permit, the inspector may enter the property. However,
if there is not an active permit, permission from the owners or occupants must
be received prior to entering private property.
If the property owner is willing to talk to the inspector, the inspector may
wish to hold an informal meeting and register the community's concern or determine
that no violation has occurred. If the inspector is able to resolve the violation
through this type of meeting and discussion, the community is ahead of the game
and the public has been well served. However, the inspector must keep a record
of the conversation and meeting because they could be used later in court.
If permission to enter the property is not obtained, the inspector should make
a note in the record and leave the property. The inspector may inspect the property
from any site accessible to the general public, such as roads, bridges, or parks.
The inspector may also inspect the site from adjacent property if the adjacent
owner gives permission.
Under no circumstances should the inspector force his/her way onto the property
or gain access through intimidation. If access is denied, discuss the next means
of action with the appropriate supervisors or the municipal/district attorney.
Once assured that a violation may be taking place, consult and get guidance
from the municipal/district attorney before taking the next step. Posting the
notice and sending the stop work order could be risky and questionable unless
they are authorized in the state law.
- Post a notice of violation and stop work order in a prominent place on the
property, clearly visible to anyone who enters the property or the structure;
and
- Send a certified (return receipt requested) violation notice letter and
stop work order to the owner of the property notifying him/her of the violation
and the applicable part of the community's regulations that is violated as
well as the remedies required to abate the violation and remove the stop work
order.
Violation notices should always be sent by certified mail, with a copy of the
receipt and the letter placed in the file. Often, violations have been dismissed
in court because the community could not prove that the violator had been notified.
If the violator refuses to sign the receipt, then it may be necessary to have
the notice delivered by a law officer or two staff members (one to serve as
witness). When the order is served to the developer, it is recommended a photograph
is taken and that accurate identification is verified with a photo ID. The notice
should also specify a date by which the owner must respond to the notice. The
period of time must be reasonable and should be based on the potential threat
to life/property. This date establishes the timing for additional action.
VIOLATION MEETING AND ENFORCEMENT OPTIONS
Assuming that the property owner wishes to clear up the violation (no-action
will be discussed later under litigation), a violation meeting should be scheduled
as soon as possible. The stop work order should remain effective until the violation
is resolved.
The enforcement official should be prepared for all eventualities, from voluntary
removal of the violation through the worst-case scenario, litigation. Explaining
the possible ramifications of the violation may go a long way in convincing
the violator to remove the violation without the need for litigation. Again,
it is very important to keep a record of what was said at the meeting(s) because
this information could be used later for a court record.
REMEMBER-Litigation is the most time-consuming and costly method of abating
a violation. It may be the only way that a violation can be abated but SHOULD
BE USED ONLY WHEN ALL OTHER EFFORTS FAIL.
Here are several violation scenarios and how you might deal with them:
EXAMPLE A
Violation: Fill in floodway - No Permit
Too much fill put into floodway to repair erosion damage.
Possible Abatement Options:
OPTION 1: REMOVE FILL
This may entail more than removing a pile of dirt. If the fill has been graded
and the original "natural" elevation can no longer be discerned, you
will have to determine (as near as possible) the original elevations and slope.
Then, you must require that the violator remove the fill only to that elevation
and slope.
OPTION 2: LEAVE FILL
Have the violator apply for a permit and get a Letter Of Map Revision (LOMR).
Then, you must give the violator copies of all pertinent application forms and
establish a specific date by which you must receive all applications and data.
You then need to coordinate your response with all other applicable agencies
and inform the Oklahoma Water Resources Board and FEMA in writing of your actions.
You must monitor the situation and be ready to fall back to Option 1 if the
violator fails to meet his/her part of the agreement.
If you do not receive the permit application and LOMR data as agreed, then
the violation must be considered active and all violation notices should remain
in effect until the LOMR and the permit application are received. You should
inform the violator that the violation is still active, provide a second due
date for the submission of the data, and inform him/her that if the information
is not received that the community will initiate litigation.
EXAMPLE B
Violation: Fill in floodplain - No Permit
Fill for low water crossing into a property on the other side of a designated
floodplain is being placed without a permit and with no drainage openings.
Possible Abatement Options:
OPTION 1: REMOVE FILL
Although removal of the fill would abate the violation, it could cause considerable
inconvenience (not a hardship) to the property owner and only delays the final
decision regarding an otherwise valid land use, when properly permitted. Additional
factors, such as the effect of removal, possible replacement, and the potential
for damage from the existing fill on the water quality of the stream, must be
evaluated before the meeting with the property owner.
OPTION 2: LEAVE FILL
The fill will have to be removed until its effect on the base flood elevation
is determined and construction plans approved by the community and a permit
issued. At the meeting, the violator proposes to breach the illegal fill but
not remove all of it. If the permit is not approved, he will remove the remaining
fill. If the permit is approved, he would not have to bear the cost of returning
that portion of the fill that he proposes to leave in place temporarily. As
the enforcement official, you determine breaching the fill would relieve the
threat of flooding to adjacent properties and not increase the base flood elevation,
and accept his proposal based on his providing construction plans and applying
for a development permit within 10 working days. It is very important to keep
a record of what was said at the meeting, because this information may have
to be entered as part of a court record. Also make sure that the property owner
is aware that the violation will be pursued if the conditions of the agreement
reached at the meeting are not met.
EXAMPLE C
Violation: Single-family dwelling was not constructed to required elevation.
A single-family dwelling was built with its lowest floor (including basement)
three feet below the elevation required by the local ordinance and is now one
foot below the Base Flood Elevation (in violation of both the local ordinance
and FEMA regulations).
Possible Abatement Actions:
OPTION 1: ELEVATE STRUCTURE
If the structure was built over a basement or crawl space, elevation may not
be a viable option. If the structure was built on slab, elevation may be an
option but probably more expensive. Special care must be taken to ensure that
the new elevation meets the elevation requirements of the ordinance.
If the structure is built over a basement, then the first floor may be at or
above the ordinance elevation, which may be more than the minimum FEMA requirement.
If this is the case, you may wish to require that the basement be abandoned
and filled. This option could be accomplished by moving all heating, plumbing
and utilities and utility equipment to the first floor or higher and back-fill
the basement.
OPTION 2: ALLOW STRUCTURE TO REMAIN
If you agree that the structure should remain on the site as is, then several
actions should be taken:
- The violator must be required to floodproof the structure to the maximum
extent possible and submit a certified elevation certificate, a floodproofing
certificate and a copy of a letter requesting rating or re-rating of the structure
for flood insurance purposes to the community and to the State Coordinator's
office.
- The violator should file a notice with the County Clerk notifying any future
purchasers that the property does not conform to the floodplain development
requirements of the community. A copy of the notice should also be filed with
the title abstract. This option should be considered only if all the requirements
of the ordinance cannot be met.
- The community should request a 1316 action under the provisions of Part
73 of the National Flood Insurance Program regulations if the structure cannot
be brought into compliance after all legal avenues have been exhausted.
OPTION 3: DEMOLISH STRUCTURE
Although demolition would not normally be required for a structure with the
lowest floor (including basement) one foot below the base flood elevation outside
of a designated floodway, this is an option that must be considered. If the
structure were in a floodway or more than one foot below the base flood elevation,
demolition becomes a more appropriate option.
When determining what action your community should take in abating violations,
you should remember that normally the agency does not have the authority to
enter someone's property to correct a violation or to order another agency or
contractor to perform the work. Always discuss the community's options with
the community's legal counsel prior to taking or agreeing to any action. Remember,
if the structure remains, the community will eventually be providing emergency
community services and possibly other financial assistance to the residents.
The scenarios mentioned above are only three of many types of floodplain violations
that a community may discover. The particular response should be tailored to
each situation, but two things must always be kept in mind: violations of the
community's floodplain management ordinance will eventually lead to increased
damages and possible loss of life; ENFORCEMENT OF THE ORDINANCE IS YOUR RESPONSIBILITY.
Several communities have begun using the citation or "ticket" approach
to enforce zoning and floodplain development requirements. If the floodplain
ordinance permit requirement falls under the zoning or building code requirements,
then the "ticket" approach is feasible. If violations of the floodplain
ordinance are declared to be public nuisances, the "ticket" approach
is also feasible. This system should mirror local zoning and nuisance enforcement
techniques that already exist in most communities.
If the community has a floodplain board or has assigned those duties to a planning
or zoning board or uses a board of adjustment, it can use that system and procedure
to hear appeals from and review any order, requirement, decision, or determination
made by any official charged with enforcing the floodplain requirements.
As for procedural questions, once the citation (ticket) is issued, the person
charged may appeal the citation through the system adopted by the community.
There are limits on the types of penalties that can be imposed. A misdemeanor
offense is punishable by imprisonment in a county jail not exceeding one year
or by a fine not exceeding $500, or both fine and imprisonment. Where punishment
is not prescribed, local counsel should be obtained if such actions are seriously
considered or become the action of last resort.
Another option that a community may use to gain compliance is recording the
violation notice in the County Clerk's Office. This recordation has the effect
of clouding the deed to the property, so that the Title Insurers may not be
willing to insure the title until the violation is removed. Typically, a Title
Insurer may require the property owners to certify that certain conditions are
met prior to transfer of title. One typical condition is that, "No notice
of any structural code violations for the premises issued by any governmental
agency has been received by the grantor within the past 10 years." In determining whether to use this option, the enforcement official should
determine whether the action will have the desired effect of encouraging the
removal or abatement of the violation. The best way to record the violation
should be discussed with legal counsel. This option should not be used if in
the opinion of the enforcement official there will not be a transfer of the
property in the near future (three years or less is recommended). This option
should not be used unless a violation letter is recorded.
LITIGATION
IF ALL OTHER MEANS OF OBTAINING COOPERATION IN REMOVING OR ABATING A VIOLATION
FAIL, then the final step is to request the Municipal Attorney or the District
Attorney to initiate legal action against the violator.
Prior to taking the case to the attorney, the enforcement officer should make
sure that the chronology and the documentation of past action is in order and
easily discernible including significant dates, actions taken, and matters discussed.
An inspection and meeting record should be attached, outlining the course of
action taken up to this point.
When taking the case to the attorney, the enforcement official should have
a clear idea of the type of resolution being requested. This organization will
assist the attorney in determining the course of action to be pursued, such
as demolition, restoration, or another type of violation resolution.
Prior to actually filing a complaint, the attorney may wish to send a letter
to the potential defendant outlining the charges and giving the defendant 30
days to respond. If successful, this will gain compliance without going through
the long, tedious, and costly effort of a court case.
If the attorney's actions fail to gain compliance, the enforcement official
must be ready for a trial. This means either being ready to give testimony and/or
lining up "expert witnesses" to give testimony. In these efforts,
the enforcement official should follow the lead of the attorney who will actually
prepare and present the case in court. The enforcement official is the best
witness in any floodplain violation case because the enforcement official has:
- The best working knowledge of the ordinance; First-hand knowledge of the
case;
- Documents needed for witness corroboration (photos, eye witness accounts
in writing, ordinances, etc.); and
- Knowledge of the chain of custody of evidence (can verify that evidence
has not been contaminated, altered, or changed).
The community may also wish to obtain "expert witnesses" to further
clarify the community's position and the effects of non-compliance. Expert witnesses
may be paid consultants with knowledge regarding violations of this type or
officials from other communities with experience in these matters. It is important
to explain to the court how the witnesses relate to this case and their area
and field of expertise.
STATE ROLE IN LOCAL ENFORCEMENT EFFORTS
The NFIP regulations state that it is the community's responsibility to enforce
the requirements of its floodplain management ordinance and any other more restrictive
regulations of the state. However, at the request of FEMA, each Governor has
designated an agency of State or territorial government to coordinate that State's
or territory's NFIP activities. These agencies often assist communities in developing
and adopting necessary floodplain management measures. As the designated state
coordinator, the OWRB will provide consultation in dealing with a violation
and a violator. Staff will work with the local officials to determine the best
way to deal with the violation problem. However, it is ultimately the community's
responsibility to pursue the appropriate course of action.
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Program Compliance
Conscientious enforcement of the floodplain ordinance must be
undertaken. Communities that do not strictly maintain a permit system, do not
keep adequate records, or have developed a pattern of granting variances, have
violated their agreement with FEMA. Communities must practice floodplain management
as set forth in their floodplain ordinance. Failure to adequately do so could
trigger a visit from OWRB or FEMA representatives. This visit is called a Community
Assistance Visit (CAV). The nature of a CAV will vary according to the circumstances
of each community. If OWRB and FEMA find deficiencies in a community's management
of their floodplain ordinance, OWRB and FEMA may request corrective actions
be initiated by the community.
COMMUNITY ASSISTANCE VISITS
Community Assistance Visits (CAVs) are FEMA's most comprehensive form of contact
with NFIP communities. A number of communities are selected and visited annually
because of development pressure, flood history, high or repetitive insurance
claims, known problems, or other indicators of difficulty (i.e., variances)
with NFIP requirements.
An on-site visit by FEMA and/or OWRB personnel consists of:
- meeting with community officials;
- a tour of the floodplain;
- an inspection of records, concentrating on development permits and as-built
elevation and floodproofing certifications as required in NFIP regulations
part 59.22(9)(iii); and
- evaluation of the floodplain ordinance and administrative procedures used
in floodplain management.
Following the on-site visit, a follow-up letter will be sent by FEMA or OWRB
to the community outlining:
- assessment findings;
- specific deficiencies and violations;
- history of such deficiencies and violations;
- required corrective actions, protective measures and procedures to be changed
by the community; and
- assistance provided or promised.
FEMA GUIDELINES ON PROGRAM DEFICIENCIES
When a community has failed to enforce its floodplain management program in
compliance with NFIP criteria, and the FEMA regional office has identified one
or more program deficiencies or violations, FEMA may initiate an enforcement
action against the community in order to obtain compliance. A substantial program
deficiency violation is one that has resulted or could result in increased flood
damage potential or higher flood stages.
EXAMPLES OF SUBSTANTIAL PROGRAM DEFICIENCIES:
- Failure to require permits for proposed construction or other development
within flood-prone areas and to review such permit applications and subdivision
proposals to assure that all such construction and development is adequately
designed, located, constructed and anchored to minimize flood damage.
- Failure to obtain and reasonably utilize available flood data as criteria
for setting local elevation and floodproofing requirements.
- Ordinances not compliant with NFIP floodplain management criteria.
- Ordinances that do not contain adequate enforcement provisions or that
cannot be enforced through other mechanisms.
- Administrative procedures or practices that are not workable or cannot
reasonably ensure compliance with the local ordinance.
- Variance procedures not consistent with NFIP variance criteria.
- Failure to operate and maintain flood protection projects credited by FEMA
as providing 100-year flood protection.
EXAMPLES OF SUBSTANTIAL VIOLATIONS:
- obstruction of floodways or stream channels that increase flood stages;
- in A-Zones, applying to new construction and substantial improvements;
- residential structures that are located with their lowest floor (including
basement) below the BFE;
- residential structures that are not adequately anchored to resist flotation,
collapse or lateral movement;
- nonresidential strictures that are not elevated and anchored or floodproofed;
- structures without required elevation certificates or floodproofing certificates;
and
- structures with enclosures below the BFE used for purposes other than parking,
access, or storage.
Although all participating communities are required to enforce compliant NFIP
ordinances, not all communities have the same capabilities and the seriousness
of deficiencies and violations will vary. Because of this, various mitigating
and aggravating factors are taken into consideration by FEMA, and all enforcement
actions are handled on a case-by-case basis. Mitigating factors do not relieve
a community of its obligation to correct all deficiencies and remedy violations.
EXAMPLES OF MITIGATING FACTORS:
- The community has demonstrated willingness to take positive actions to
resolve past problems.
- Due to a lack of adequate local resources, including professional staff,
the community has had to rely on the availability of technical assistance
from state, regional, or private sources.
- Deficiencies in the local program have not resulted in increased exposure
to flood losses.
- There is no history of prior violations identified by FEMA and OWRB.
- FEMA has had no prior contact with the community.
- Newly elected officials or recently hired staff have demonstrated a new
attitude toward NFIP compliance on the part of the community.
- The violation occurred a number of years in the past.
- There are only isolated instances of violations or a single program deficiency
rather than a pattern of widespread program deficiencies or violations.
- A particular remedial measure would undermine the credibility of local
officials or their efforts to achieve compliance.
- The present owner of a property in violation was not the owner at the time
the structure became noncompliant.
EXAMPLES OF AGGRAVATING FACTORS:
- The community has not demonstrated willingness to take positive actions
to resolve past problems.
- The community has adequate resources available to it, including professional
staff or other sources of technical assistance, which have not been utilized.
- Deficiencies in the local program have resulted in increased exposure to
flood losses.
- There is a history of prior violations or program deficiencies identified
and brought to the community's attention by FEMA and OWRB.
- FEMA and OWRB have had prior contact with the community.
- FEMA and OWRB have provided technical assistance to the community.
- The violations occurred recently.
- There is a pattern of widespread program deficiencies or violations as
opposed to an isolated instance to noncompliance.
- The present owner of a property in violation also was the owner at the
time the structure became noncompliant applies when determining appropriate
remedial measures.
EXAMPLES OF WAYS TO CORRECT PROGRAM DEFICIENCIES:
- Amend ordinances to close loopholes or correct other program deficiencies
that allowed the violations to occur.
- Amend ordinances to include more effective enforcement provisions or add
penalty provisions.
- Change administrative procedures to improve the permitting and inspection
process. This could include revisions of permit, certification or inspection
forms, changes in inspection procedures, or changes in procedural instructions
given to the building inspector and other staff.
- Pass a resolution of intent to fully comply with NFIP requirements.
- Change or increase staff or resources used to enforce the local ordinances.
(FEMA generally does not mandate this remedial measure.)
- Provide missing elevations or floodproofing certificates.
EXAMPLES OF WAYS TO REMEDY VIOLATIONS:
- Demonstrate that the structure is not in violation by providing missing
elevation or floodproofing certificates.
- Submit engineering data showing that floodway fill results in "no
increase" in flood stage.
Rescind permits for structures not yet built or in early stages of construction.
- Tear down or modify the noncompliant structure or remove fill in the floodway.
- Develop and implement a master drainage plan or construct flood control
works to protect noncompliant structures.
- Seek civil/criminal penalties as provided for in the local ordinance or
community code. In the case of a judgment against the community, the community
is expected to appeal the decision.
- Initiate licensing actions against architects, engineers, builders or developers
responsible for the violations.
- Submit survey data/documentation required to verify insurance rates for
existing policies.
Issue declarations and submit them for Section 1316 denial of insurance.
- Submit evidence that the structure cannot be cited (legal constraints in
state or local legislation, deficiencies in the ordinance, etc.).
- Submit sufficient data to verify the information submitted by the property
owner of an uninsured building so that FEMA can ensure the building is properly
rated if a flood insurance policy is applied for in the future.
PROBATION
Communities that fail to adequately enforce floodplain management regulations
can be placed on probation by FEMA. Probation allows a period of time for the
community and FEMA to work out identified problems, deficiencies or violations.
Probation can be imposed and terminated by FEMA's Regional Director in Denton,
Texas, and can be continued for up to a year after the community corrects all
program deficiencies. FEMA specifies what corrective actions or remedial measures
need to be taken by the community in order to have probation lifted.
During probation, an additional premium charge of $50 per policy will be levied
on all new and renewed flood insurance policies. This surcharge is based on
a one-year time period beginning with the imposition of probation and will be
in effect this first year and during successive one-year periods during which
the community remains on probation. If the probation period lasts three months,
the surcharge is still in effect for the remainder of the year; if probation
lasts 13 months, the surcharge is in effect for 24 months.
Probation is lifted or extended at the discretion of the FEMA Regional Director.
SUSPENSION
When efforts to resolve identified community deficiencies do not meet FEMA's
conditions or otherwise fail under probation, the community may be removed from
the program. Suspension authority lies with the FEMA Washington office. The
effects of being suspended from the NFIP are:
- Flood insurance will no longer be available. No resident will be able to
purchase a flood insurance policy.
- No federal grants or loans for buildings may be made in identified flood
hazard areas. This includes all federal agencies such as the Department of
Housing and Urban Development (HUD), Small Business Administration (SBA),
Federal Housing Authority (FHA) and Farmers Home Administration (FmHA).
- No federal disaster assistance may be provided in identified flood hazard
areas.
- No federal mortgage insurance may be provided in identified flood hazard
areas. This includes FHA, Veterans Administration (VA) and FmHA.
- Mortgages requiring the purchase of flood insurance may be foreclosed.
- Liability of local government for denying citizens the right to purchase
flood insurance or by not taking positive steps to reduce exposure of life
and property from a known natural hazard.
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Subrogation
Subrogation is an action brought when flood damages have occurred, flood insurance
claims have been paid, and all or part of the damage can be attributed to acts
or omissions of a community. FEMA then sues a third party to recover flood insurance
claims it has paid.
Before subrogation can take place
- The community must be in the Regular Phase of the NFIP;
- Flood damages occur to property carrying flood insurance;
- Flood insurance claims are paid by FEMA based on the property damage caused
by flooding.
In seeking subrogation:
- FEMA believes negligence by a third party has contributed to the flood
damages occurring as covered by flood insurance policies; and
- FEMA sues to recover the money paid out in claims due to damage attributable
to a third party. This third party is believed to have caused, contributed
to, or aggravated the documented flood damages. This third party could be
a community, a political entity, a developer or an engineer.
- FEMA determines the community in which the damages have occurred is delinquent
in its floodplain management efforts. Extensive investigation and documentation
would precede any subrogation efforts by FEMA.
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Denial of Flood Insurance
and Disaster Assistance
Denial of Flood Insurance and Disaster Assistance
Under Section 1316 of the National Flood Insurance Act, as amended, flood insurance
can be denied to properties in violation of state or local floodplain regulations.
FEMA will not allow new flood insurance coverage for any property declared in
violation of floodplain regulations by the state or local entity in which the
violation exists. A valid declaration shall consist of:
- The name(s) of the property owner(s) and address or legal description of
the property sufficient to confirm its identity and location;
- A clear and unequivocal declaration that the property is in violation of
a cited state or local law, regulation, or ordinance;
- A clear statement that the public body making the declaration has authority
to do so and a citation of that authority;
- Evidence that the property owner has been provided notice of the violation
and the prospective denial of insurance; and
- A clear statement that the declaration is being submitted pursuant to Section
1316 of the National Flood Insurance Act of 1968, as amended.
Denial of flood insurance coverage makes commercial financing for unauthorized
floodplain structures difficult to obtain. If the property has a 1316 and the
owner corrects the deficiency, the 1316 can be lifted.
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