Court Vindicates FEMA In Insurance-Related Floodplain Dispute

Great Rivers Habitat Alliance v. FEMA (8th Cir. (Mo.) August 12, 2010)

In December 2006, the City of St. Peters, Missouri asked FEMA to remove a tract of land from the Mississippi River floodplain following the construction of a four mile urban levee built to protect from a 500-year flood. The agency expressed concerns over the levee’s closure structures, as well as its ability to provide protection against even a 100-year flood. Notwithstanding, FEMA approved the modifications.

Great Rivers Habitat Alliance is a nonprofit organization dedicated to protecting a floodplain in St. Charles County, Missouri. Adolphus A. Busch Revocable Living Trust owns property within the floodplain. The two entities filed suit in December 2008 challenging an agency decision to revise a flood insurance study and rate map within the city of St. Peters, Missouri along the Mississippi River. They claimed that the rate map revision was based on flawed information and that the decision violated FEMA’s responsibilities under the National Flood Insurance Act and the Administrative Procedure Act. The parties previously wrote a letter to the city, questioning the effectiveness of the levee’s closure structures and its height above water levels.

The Eighth Circuit held that a party must undertake an administrative appeal that includes evidence highlighting the scientific and technical inaccuracy of FEMA’s findings before it can sue over a flood elevation determination. Plaintiffs did not point to any mathematical or measurement error, changed physical conditions, or lack of sufficient quality data to support the allegations in their letter to the city. Essentially, the groups merely asked FEMA to certify the accuracy of information the agency already had on file. Plaintiffs argued that this information was technical and satisfied the requirements of the National Flood Insurance Act. However, the court found that plaintiffs had not submitted new information the agency could use to reevaluate its conclusions. The court stated that the “regulations require appellants to certify new information so FEMA can conduct another analysis.” “This is precisely what appellants failed to do in this case. Instead, appellants attempt to force FEMA to reanalyze the existing data, hoping for a different result.” The court held that “FEMA is not required to rehash data it already reviewed upon the chance FEMA would change its decision.”

Accordingly, the court upheld the lower court’s decision that plaintiffs did not exhaust their administrative remedies in challenging the floodplain revision because they did not provide new scientific and technical evidence demonstrating that FEMA made a mistake.