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<br />JI <br /> <br />'~ <br /> <br /> <br />.. <br /> <br />. <br /> <br />AVOIDING LEGAL PROBLEMS IN DEALING WITH THE <br />NATIONAL FLOOD INSURANCE PROGRAM <br />By <br />JOHN SCHEIBEL <br />Assistant General Counsel <br />Federal Emergency Management Agency <br /> <br />INTRODUCTION. <br /> <br />It may be quite difficult to avoid legal problems in challenging the <br />Federal Emergency Management Agency (FEMA) in its implementation of the <br />National Flood Insurance Program (NFIP). The Agency has never lost a <br />case in which its engineering determinations or its floodplain management <br />regulations were challenged. I am going to identify the legal issues and <br />discuss how the courts have resolved them. I will also explain Some <br />related subjects, such as recent litigation under Executive Order 11988, <br />Floodplain Management, affirmative litigation being brought by FEMA, and <br />potential liability of lenders for failure to comply with statutory notice <br />requirements. <br /> <br />BACKGROUND <br /> <br />What does FEMA do in order to carry out the flood insurance program? <br />There are basically four functions, all of which are authorized by the <br />National Flood Insurance Act of 1968 (Pub. L. 90-448): <br /> <br />., <br /> <br />1. FEMA maps the boundaries of the 100-year floodplain and <br />establishes base flood elevations within the floodplain. <br /> <br />2. FEMA establishes the land use and building code requirements <br />which communities must adopt in order to participate in the <br />flood insurance program. <br /> <br />3. The Agency provides flood insurance. <br /> <br />4. The Agency determines the scope of coverage and sets the <br />insurance rates. <br /> <br />My focus here will be on the mapping and land use questions. While there <br />has been a fair amount of litigation on the denial of flood insurance claims, <br />that will not be within the purview of this discussion. <br /> <br />The floodplain Maps (either the Flood Hazard Boundary Map (FHBM) or the Flood <br />Insurance Rate Map (FIRM)) have several legal effects: <br /> <br />1. The requirement to purchase flood insurance applies when <br />obtaining a conventional mortgage from a federally related <br />financial institution, or a VA or FHA backed mortgage, or <br />direct Federal assistance, to build or acquire a building <br />in the floodplain. <br />