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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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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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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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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 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
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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