FEMA Suspension of LOMR-F Application Processing

[Jim Frame]

I -- or more pertinently, my client -- has run into what seems like a classic bureaucratic Catch-22.

In 1984 a large property was identified for development, and the owners filed for a CLOMR-F. FEMA approved the application, and as the parcels were filled and developed, individual LOMR-F applications removed them from the SFHA one-by-one. Some of the parcels were large multi-lot subdivisions, others were smaller, comprising only a few lots. Through some sort of oversight now lost to history, one of my client's parcels never got a LOMR-F. The parcels on both sides were developed with commercial buildings, and in 2018 he filled in the gap by building similar structures on the subject parcel. The new buildings abutted the existing ones, and shared the same slab elevation.

He recently refinanced the parcel, and the bank picked up on the fact that it was technically still in the SFHA. He retained me to help him obtain a LOMR-F. I did the field work and filed the application and support docs through the Online LOMC site in late June. Today I received a letter informing me that as of July 2023 FEMA had suspended all LOMR-F applications in a bunch of California counties, including this one, pending a review of the impact on fish habitat. The Online LOMC site did not have any notice of the suspension, at least not that I saw.

I called the FEMA support number and was told by the FMIX rep that indeed, the only way to get this parcel out of the SFHA is by getting a LOMR-F. Because of the 1984 CLOMR-F there is no other process available. And that process is currently unavailable, with no estimate on the schedule for completing the habit impact review.

Meanwhile, my client is stuck, with no apparent way of moving forward other than paying a high flood insurance premium on a parcel that is functionally -- but not administratively -- not in a flood zone.

Any ideas on getting around this dilemma would be gratefully entertained.

[jamesh1467]

FMIX reps are good people and knowledgeable. They have helped me more than a few times. I have heard that CLOMR in place does stop future LOMRs depending on circumstances (I have not been in one, nor do I know specific statute; it is just a rumor I heard). But I am pretty sure you cannot deny other types of applications that are non-LOMR-F applications due to a CLOMR-F being approved. That is the point of a CLOMR vs a LOMR. That's why we don't actually change floodplain maps with design plans and ask for CLOMR's. We change the maps once things are constructed with LOMR's.

Full-blown LOMRs always supersede LOMR-Fs

File a regular LOMR based on "soley on the submission of better information." With your updated topo. It's free with FEMA. However, you will have to pay for the updated hydraulics from an engineer that accompanies it, as well as a few other minor things. It will be somewhat pricy to do the actual application, even through its free from FEMA. (the engineer might also require more topo) That's the benefit of LOMR-F's, its the same as a LOMR with no hydraulics because we expected encroachments to happen, and we plan for you to fill in the floodplain with a LOMR-f to a certain extent when we do the mapping. So you don't need hydraulics with a LOMR-F. We just need to make sure you filled in the floodplain in the way we planned for you to fill in the floodplain with a LOMR-F. On the other hand, you provide the hydraulics with a LOMR to prove the encroachment isn't an issue instead of just relying on the FEMA guidelines. So it supersedes any LOMR-F application.

Otherwise, I would say to try to slip one under the rug and do a LOMA. But it will probably get caught. Its should be along the lines of my opinion of the legislative intents of LOMA's if you do a LOMA, especially if the changes have been made on the ground for years and all the neighbors are out of the floodplains. There is no reason to keep that person in the floodplain when they are physically out of the floodplain like all their neighbors and it has been going on for decades. Plus all their neighbors are out and not paying flood insurance. Its not exactly fair in my opinion. But if a CLOMR-F was done, its already on file and they shouldn't accept the LOMA just because the project/changes are technically the result of a CLOMR-F. People would just start filing LOMAs instead of CLOMR-Fs if they allowed that, and we would have people putting all kinds of unanalyzed encroachments in the floodplain. (a FMIX rep even recommended it one time for a complicated problem I had before any applications were filed, naughty, naughty) But again its worth a shot to see if you get formally denied. I am assuming that is why you are asking for help. The rep already told you that you cannot do a LOMA like they should tell you because that's the obvious choice to fix the problem if it is allowed.

You can talk to an attorney about forcing FEMA to take an "F" application. They can't just stop taking applications without expecting there to be damages incurred, and they are probably pushing into lawsuit territory to get an injunction to get them back up and running again if there are enough applications that are being denied. If the ESA issue is a problem (that is what they state is the issue), you should just be able to provide a project-specific ESA opinion from a professional as we do with CLOMRs to get your project approved. But they probably have justifiable reasons why they stopped the applications, and you're going to have to pick apart their reasoning to get the injunction. That's going down the government bureaucracy hole, hoping you can fix it. You probably won't fix it in time for them to get it back up and running. You will just be the sacrificial lamb that gives them a kick in the pants to maybe speed it up and waste your money. My bet is for any individual situation, a full-blown LOMR would still be cheaper than using an attorney.

Any engineer should be able to take the topo, throw it into the effective model, and run with it pretty easily if its as simple as you are describing. There are a lot of site-specific factors there, so don't hold me to that. Cans of worms that have slept for 4 decades definitely get opened with full-blown LOMRs once you dive into revised hydraulics. But its worth a shot to have a conversation with an engineer and for them to pull the models from FEMA to review based on what you are describing. It sounds possible based on your limited details.

Also, it takes about a year for a LOMR when things go right. Longer if they don't. I would assume something as easy as your are describing would go smoothly. But take that into account instead of just continuing to wait. This will go at least until April 2026, according to the press release from FEMA. F's are most likely going to not be taken in over half of California until at least then.

Also, if you do go LOMR, make sure to get your local community's support (city or county, whoever administers the floodplain). You will have to do it anyway. You cannot file a LOMR without their signoff, but you don't want to hire all those consultants just to find out they won't allow it themselves. I say that because, unfortunately, many floodplain administrators work part-time as floodplain administrators compared to other duties. They know enough to do their jobs. However, the knowledge base can sometimes be lacking for complex issues, and you can have trouble with complicated problems at the local level. Nothing nefarious, just FEMA NFIP stuff is often misunderstood when complicated problems come up. (that's one of the reasons FMIX exists at the larger scale that it does) Also, every local area has its own ordinances that could affect what you are doing.

Also, if there are other parcels in the area in the same situation and you do need to do LOMR, combo up with the other parcels and share costs. Its literally the process to change the actual flood maps. So anything is possible.....also the local government could do this for you. Go find enough people who are affected. Get together and ask your floodplain administrator (city county, whoever) to hire a consultant to handle this with public funds because many people could be affected by this denial of applications.

I know I said I wasn't getting involved in other stuff outside of standard of care. But you asked about flood stuff and I'm definitely known as a flood guy. Plus, so many people misunderstand this stuff and then mess things up. I have seen it so many times. I'm a Certified Floodplain Manager. Technically there's an idea its my duty to tell you this stuff. I haven't even read all the standard of care stuff, and I will in a few weeks.

Good luck. It is a little bit of a bad situation. Surprised they just blanketly stopped taking applications like that. Although I am not that surprised too. I wonder if there was a case with FEMA that issued an injunction itself that forced them to stop.

In summary:

• Go LOMA instead of LOMR-F -Formally. Get formally denied.

• Then go full-blown LOMR (add an engineer)

• Then, go to a Lawsuit to fight the man. (add an attorney, my guess is that you would still need the engineer too)

• Or just wait.

My guess is that if the LOMA idea doesn't work, you just need to wait based on a cost analysis. Everything is about money. Solutions are always available for almost every problem; they just cost money. Do a cost analysis of the cost of the engineer's fees vs the insurance premium. Give it to the client and tell them that's the best you can do if the LOMA doesn't go through. That's the best I got within the rules. If they take the LOMA, they agreed it was within the rules. Otherwise, you have to go to LOMR or force FEMA to take the LOMR-F with an attorney.

If I were trying to be super creative outside the rules (because I feel like the circumstances you described are worth bending them to do the right thing), I would say talk to an attorney about some kind of statute of limitations on CLOMR-F's vs LOMAs. There should be some point in time where no matter if a CLOMR-F was filed, the ground naturally would be available for a typical LOMA. Like it just seems reasonable that CLOMR-F's shouldn't prevent LOMA's after a certain amount of time. The ground is naturally filled or things could happen. The earth changes. CLOMR-Fs cannot force the next application to be a LOMR-F indefinitely. The court should set a threshold time period if there isn't one buried in statute or case law.......but again, talk to an attorney, and only if the LOMA gets denied. There is a lot of case law on the NFIP. A LOT of case law. but again, going to an attorney and proving that costs money when the LOMR itself should just solve the problem. The reason there is so much case law on the NFIP is because people tried to kill it many times with the takings clause. Not because individuals got stuck in situations the NFIP didn't give them an out for. There's typically an out that is cheaper than attorneys for most situations within the NFIP's rules. You just need to find it...and compare it to the cost of paying the premium.

[Jim Frame]

Thanks for the response. I don't think the LOMA approach is worth the effort, or the attorney thing worth the uncertainty and cost. But the LOMR might be simple enough to be feasible, so I'll have a chat with the hydro engineer I sometimes work with and see what he says.