Legal Blogs and Updates

Despite the issuance of preliminary Flood Insurance Rate Maps (FIRMs) a few years ago, the Federal Emergency Management Agency (FEMA) has not yet issued effective FIRMs for parts of New Jersey and New York. Although this has left developers in a bit of flux, a recent appeal in New York City may be pushing FEMA to revise its maps once again.

Despite the issuance of preliminary Flood Insurance Rate Maps (FIRMs) a few years ago, the Federal Emergency Management Agency (FEMA) has not yet issued effective FIRMs for parts of New Jersey and New York. Although this has left developers in a bit of flux, a recent appeal in New York City may be pushing FEMA to revise its maps once again.

FEMA had begun a restudy of the New Jersey and New York coastline prior to Hurricane Sandy because Base Flood Elevations (BFEs) on currently effective FIRMs are based upon studies that were performed more than 25 years ago and do not reflect the best available data. At the time, FEMA anticipated production of revised BFEs and FIRMs in mid-2013. However, Hurricane Sandy and subsequent map appeals changed that schedule.  To assist with recovery efforts and rebuilding after Sandy, in late 2012 and 2013 FEMA released Advisory Base Flood Elevation (ABFE) maps for several communities in New Jersey and New York affected by the storm. These interim mapping products reflected higher elevations than the BFEs on effective FIRMs and, in most cases, extended coastal flood zones further inland.

Although the ABFEs were intended by FEMA to be advisory and not mandatory, on January 24, 2013, the New Jersey Department of Environmental Protection adopted emergency amendments to the Flood Hazard Area Control Act Rules. Those amendments required the use of the highest available State or Federal flood elevation data to determine a given site’s design flood elevation, thereby incorporating the AFBEs. The amendments imposed significantly more stringent requirements for development in flood hazard areas by adopting the AFBEs to determine the required design flood elevation for development. On January 31, 2013, New York City followed suit with an Executive Order that suspended zoning restrictions for certain areas so that rebuilding could occur based upon elevations set forth in the AFBE maps.

Over the next two years, FEMA began releasing preliminary FIRMs for New Jersey, New York and other states. Once released, the preliminary FIRMs were subject to appeal pursuant to federal regulations.  Several communities appealed the preliminary FIRMs, including most notably the City of New York filing  an appeal on June 26, 2015. A significant amount of technical data accompanied the City’s appeal.  The City argued that there were errors in FEMA’s storm surge and offshore wave models that resulted in BFEs that were overstated by more than two feet in some areas. As a result, the City argued that floodplain boundary designations were incorrect and 26,000 structures and 170,000 residents in New York City should be removed from the Special Flood Hazard Area.  The challenged model was also used by FEMA to create FIRM updates for many other coastal communities in New Jersey as well as other areas of New York.

New York City’s appeal is still pending. Because its modeling is being questioned, FEMA has not finalized maps for New York City or other communities affected by potential modeling errors while it evaluates whether mapping revisions are necessary.  FEMA convened a panel of subject matter experts to assist with resolving the appeal.  It may take several months for the panel to complete its review and issue findings. If FEMA determines that its model must be revised, then it will proceed with issuing a Letter of Final Determination, stating that an updated FIRM will become available for each affected community. If the appeal is successful, FEMA estimates that Letters of Final Determination could be issued this summer and effective FIRMs may be issued by the end of 2017.

If you have questions concerning development within the flood hazard area or revisions and amendments to flood maps for a particular project, contact Kevin Coakley at kcoakley@connellfoley.com or Nicole Dory at ndory@connellfoley.com.