The City of Key West, Florida

The Southernmost City in the Continental United States

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Appeals

It's key to understand that new "Draft" flood maps aren't the same as "Preliminary" flood maps. Draft maps are the City staff's and official's first look at the proposed maps, and FEMA's opportunity to receive feedback before the future public release of Preliminary maps. There will a few - or possibly several - months between the release of "Draft" and then "Preliminary maps. 

Once FEMA releases the Preliminary Flood Maps, a 90-day appeal period begins. 

  • Critical points
    • FEMA must address "appeals" submitted within this 90-day time frame. 
      • On the 91st day, any submission is automatically reduced to a "comment."
    • Only scientific data will be considered.
      • Comments or beliefs such as "My home has never flooded," won't be considered an appeal. 

The following excerpt from a 2013 article in the New England Real Estate Journal does an excellent and still relevant job of explaining the process.

Reversing the tide: How do residents and businesses appeal FEMA's proposed flood maps?

November 21, 2013 - Spotlights, by Charles Katz-Leavy, Verrill Dana LLP

What options do property owners have after the proposed maps are released?

After FEMA's proposed maps are released to a municipality or "community," it is critical for property owners to remember two things: first, the maps are not final, and second, the clock begins ticking almost immediately. The community must notify property owners of the proposed maps in a local newspaper and following the second notification, a 90-day appeal period starts.

Property owners who may be impacted by the proposed maps should first inquire into whether the community plans to hire an engineering consultant and an attorney to help review and appeal the maps. If the community does not intend to appeal, a concerned property owner should promptly consult an engineer and attorney to review their options. Even if a community plans to file an appeal, individual property owners should not rest easy. It is possible the appeal might produce favorable mapping results for the community, but not for a property owner's parcel. Hiring an engineering consultant and attorney will help ensure individual property rights are protected.

In many cases, the community may be reluctant to initiate the appeal process unless local landowners voice concerns with the proposed maps. Property owners or their representatives should encourage the community to collect individual appeals on behalf of its residents and submit a collective appeals package to FEMA. Pursuant to federal regulations, the community must provide detailed evidence, "that the elevations proposed by FEMA are scientifically or technically inaccurate." The burden of gathering such scientific evidence often falls on the property owners.

Should I appeal the proposed maps for my area?

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 United States 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.

This entire article may viewed online at:  http://nerej.com/question-of-the-month-reversing-the-tide-how-do-residents-and-businesses-appeal-fema-s-proposed-flood-maps

Republished with permission courtesy of the New England Real Estate Journal.

The following demonstrates the complexity with filing an appeal to FEMA's proposed flood maps, taken from FEMA's Appeal and Comment Processing publication ...

1.1  Technically Incorrect

The proposed BFEs, base flood depths, SFHA zone designations, or regulatory floodways are considered technically incorrect if the methodology was not applied correctly or the methodology was based on insufficient or poor-quality data, as per 44 CFR Section 67.6(b)(2).

1.1.1    Methodology Not Applied Correctly

To demonstrate that a hydrologic methodology was not applied correctly, the following should be submitted:

  • New hydrologic analysis in which the original methodology has been applied differently.

  • An explanation for superiority of the new application.

  • New hydraulic/floodway or coastal analysis based on flood discharge values from the new hydrologic analysis.

  • A revised summary of discharges table and/or Flood Profiles and, if applicable, Floodway Data Table (FDT).

  • Revised SFHA boundary delineations and, if applicable, regulatory floodway boundary delineations.

To demonstrate that a hydraulic methodology was not applied correctly, the following should be submitted:

  • New hydraulic/floodway analysis, based on the original flood discharge values, in which the original methodology has been applied differently.

  • Revised Flood Profiles, FDT, and other FIS report tables, as applicable.

  • Revised SFHA boundary delineations and, if applicable, regulatory floodway boundary delineations.

To demonstrate that a coastal methodology was not applied correctly, the following should be submitted:

  • New coastal analysis, based on the original stillwater elevations, in which the original methodology has been applied differently.

  • Revised SFHA boundary delineations and all applicable FIS Report tables, including the transect data table.

1.1.2    Methodology Based on Insufficient or Poor-Quality Data

To demonstrate that insufficient or poor-quality hydrologic data were used, the following should be submitted:

  • Data believed to be better than those used in the original hydrologic analysis.

  • Documentation for the source of the data.

  • An explanation of the improvement resulting from use of the new data.

  • New hydrologic analysis based on the better data.

  • New hydraulic/floodway or coastal analysis based on flood discharge values resulting from the new hydrologic analysis.

  • A revised summary of discharges table, Flood Profiles and, if applicable, FDT.

  • Revised SFHA boundary delineations and, if applicable, regulatory floodway boundary delineations.

To demonstrate that insufficient or poor-quality hydraulic data were used, the following should be submitted:

  • Data believed to be better than those used in the original hydraulic analysis.

  • Documentation for the source of the new data.

  • An explanation of the improvement resulting from use of the new data.

  • New hydraulic analysis based on the better data and the original flood discharge values.

  • Revised flood Profiles and, if applicable, FDT.

  • Revised SFHA boundary delineations and, if applicable, regulatory floodway boundary delineations.

To demonstrate that insufficient or poor-quality coastal analysis data were used, the following should be submitted:

  • Data believed to be better than those used in the original coastal analysis.

  • Documentation for the source of the new data.

  • An explanation for of the improvement resulting from use of the new data.

  • New coastal analysis based on the better data and the original stillwater elevation values.

  • Revised SFHA boundary delineations and all applicable FIS report tables, including the transect data table.

1.2  Scientifically Incorrect

Proposed BFEs, base flood depths, SFHA zone designations, or regulatory floodways are scientifically incorrect if the methodology used in the determination of the BFEs, base flood depths, SFHA zone designations, or regulatory floodways is inappropriate or incorrect, or if the assumptions made as part of the methodology are inappropriate or incorrect, as per 44 CFR Section 67.6(b)(3). To show that an inappropriate or incorrect coastal, hydraulic, or hydrologic methodology has been used, the following should be submitted, if applicable:

  • New hydrologic analysis based on an alternative methodology and, if applicable, updated hydraulic/floodway or coastal analyses based on the updated discharge values.

  • New hydraulic/floodway analysis based on an alternative methodology and the original flood discharge values (if the appeal does not involve the hydrologic analysis).

  • New coastal analyses based on an alternative methodology and the original stillwater elevations (if the appeal does not involve the hydrologic analysis).

  • An explanation for the superiority of an alternative methodology.

  • As applicable, a revised Summary of Discharges Table, Flood Profiles, Transect Data Table, Summary of Stillwater Elevations Table, and FDT.

  • Revised SFHA zone boundaries and, if applicable, regulatory floodway boundary delineations.

A list of hydrologic, hydraulic, and coastal models accepted by the National Flood Insurance Program is available on FEMA’s website

1.3 Flooding Sources Studied by Approximate Methods

Typically, where BFEs or base flood depths are not available, flood zone boundaries are delineated with the best available data, including flood maps published by other federal agencies, information on past floods, and simplified hydrologic and hydraulic analyses. If more detailed data or analyses are submitted, FEMA will use them to update the flood hazard information shown on the affected map panels. For appeals related to approximate SFHAs, some or all of the following should be submitted:

  • Published flood maps that are more recent or more detailed than those used by FEMA;

  • Analyses that are more detailed than those performed by FEMA or that are based on more detailed data than those used by FEMA;

  • Topographic data that are more detailed and accurate than those used by FEMA, carried through to revised SFHA boundaries.

1.4 Topographic Data

For submittals during the appeal period that involve topographic data, the following should be submitted:

  • The data, preferably in a digital geographic information system (GIS) format, should be more detailed and/or accurate than the information used to develop the preliminary or revised preliminary FIRM products for the Flood Risk Project. The submitter should indicate when the topographic data was collected and the accuracy of the data. For example, more detailed and/or accurate topographic data submitted on its own may be considered an appeal if it was available prior to the release of the preliminary or revised preliminary maps.

  • If topography was submitted as part of hydrologic, hydraulic, or coastal analysis to demonstrate that the study was scientifically or technically incorrect, refer to the above sections for data and information associated with that analysis.

  • The submittal should clearly state which flooding sources are being appealed, based on the more detailed and/or accurate topographic data.

  • Updated SFHA boundary delineations that reflect the submitted topographic data for each appealed flooding source should also be provided, preferably in digital GIS format.

  • All submitted topographic data should adhere to FEMA’s current data capture standards for such data. If necessary, a data sharing agreement should be provided.

Contact Us

Scott Fraser,
FEMA Coordinator/Floodplain Administrator

In this Department

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