FEMA develops and enforces regulatory and procedural requirements for levee systems. These requirements apply to systems that are being constructed for the first time and those being modified to reduce the hazard, at least to the base (1-percent-annual-chance) flood level.
Communities, state agencies, or federal agencies may construct a new levee system or modify the capability of an existing levee system to reduce flood hazards. For these projects involving a new or modified levee system, a community may choose to submit the appropriate data and documentation and request that FEMA make a “flood control adequate progress” determination. The requirements for this determination are cited in the National Flood Insurance Program (NFIP) regulations in the Code of Federal Regulations (CFR) at Title 44, Chapter 1, Section 61.12 (44 CFR 61.12), in the Homeowner Flood Insurance Affordability Act of 2014 (Public Law 113-89), and in FEMA Guidance and Standards.
Risks Associated With Levee Systems
It is vital for individuals to understand the risks associated with living or working in areas affected by levees and to know the steps they can take to mitigate these risks. Everyone should understand that even the best flood risk reduction system cannot completely eliminate the risk of flooding. Levee systems are designed to reduce flood risk up to a specific level, and larger flood events can cause levees to be overtopped or fail. Levee systems also decay and deteriorate over time, so regular maintenance and periodic upgrades are needed to ensure a levee retains its level of risk reduction and continues to perform as designed. When levee systems do fail, the resulting damage, including loss of life, may be more significant than if the levee system had never been built.
In accordance with the Code of Federal Regulations 44 CFR 61.12 and the requirements in Section 19 of the Homeowner Flood Insurance Affordability Act, Pub. L. 113-89 (2014), 42 U.S.C. §4014 (e), FEMA issues “adequate progress” determinations for flood control system construction projects. These can be issued if the projects, once completed, may significantly limit the area that will be included in the Special Flood Hazard Area (SFHA) identified on a Flood Insurance Rate Map (FIRM). The SFHA, also known as the high-hazard area, is the area that will be inundated by the base (1-percent-annual-chance) flood.
For FEMA to consider issuing an “adequate progress” determination, FEMA must receive a written application from the community documenting that certain project financing considerations and project construction milestones have been met. Such projects reduce, but do not eliminate, the risk of flooding to people and structures in areas affected by levees.
The information FEMA receives from the sponsoring community or communities must be sufficient to determine the following:
- 100 percent of the project’s total financial cost for the completed flood control system has been authorized;
- At least 60 percent of the project’s total financial cost for the completed flood control system has been appropriated;
- At least 50 percent of the project’s total financial cost for the completed flood control system has been expended;
- All critical features of the flood control system, as identified by FEMA, are under construction, and each critical feature is at least 50 percent complete, as measured by the actual expenditure of the estimated construction budget funds; and
- The community has not been responsible for any delay in the completion of the system.
To request an “adequate progress” determination, the community Chief Executive Officer (CEO) or designee must submit a written request to FEMA. Each request must include “a complete statement of all relevant facts” relating to the system, as detailed in Paragraph 61.12(c) of the NFIP regulations. Contact the FEMA Mapping and Insurance eXchange (FMIX) for more information at 1-877-FEMA-MAP (336-2627).
The data and documentation to be submitted with each request includes, but is not limited to, the following:
- Supporting technical data (e.g., U.S. Army Corps of Engineers project data);
- Cost schedules;
- Budget appropriation data;
- A full and precise statement of the purpose of the system;
- Information sufficient to identify all persons impacted by the system/project;
- A carefully detailed description of the project, including construction completion target dates;
- True copies of all contracts, agreements, leases, instruments, and other documents; and
- Calculations to establish the present value of the project when the present value is to be used to support any of the above criteria.
Relevant facts in the submitted documents must be included in the “project statement of facts.” Each fact cannot be merely incorporated by reference; it must be accompanied by an analysis of its bearing on the requirements by specifying the pertinent provisions of Paragraph 61.12(b) of the NFIP regulations. The request must contain a statement on whether, to the best knowledge of the person responsible for preparing the application, the project is the subject of litigation before any Federal, State, or local court or administrative agency. If so, the statement must include the purpose of that litigation. The request must also contain a statement on whether the community has requested an “adequate progress” determination from FEMA previously. If so, it must detail the disposition of that request.
Upon issuing an “adequate progress” determination in writing to the community CEO or designee, FEMA will revise the affected FIRM panel(s) to change the flood hazard zone designation for the levee-impacted area to Zone A99. Properties in this zone will qualify for the same flood insurance premium rates that would apply when the levee system is complete.
The flood insurance premium rates for properties in Zone A99 are the same as the standard rates (Zone X (shaded)) that would apply when the project is complete. However, the mandatory flood insurance purchase requirement stays in effect for Zone A99 areas. The adjusted rates can be applied starting on the date the “adequate progress” determination is effective.
At a minimum, the floodplain management and building requirements of Section 60.3 of the NFIP regulations – specifically, Paragraphs 60.3 (a)(1) through (a)(4)(i) and Paragraphs 60.3 (b)(5) through (b)(8) – apply in areas designated as Zone A99 on an effective FIRM. Communities that participate in the NFIP must collect and maintain records to meet the following requirements for Zone A99 areas:
- Floodplain management permits;
- A determination of whether the building site will be reasonably safe from flooding;
- New or substantially improved building that are subject to flooding must be constructed by methods and practices to minimize flood damage; and
- A review of subdivision proposals to determine whether proposed structures will be reasonably safe from flooding.
If a community chooses to adopt and enforce higher regulatory standards, these standards will be documented in the local floodplain management ordinance.
The Zone A99 designation can be removed if the following occurs:
- A community submits certification to FEMA that the project has been completed, and FEMA confirms that the completed project provides an adequate reduction of the base (1-percent-annual-chance) flood hazard. In such cases, FEMA will change the flood zone designation for the levee-impacted area from Zone A99 to Zone X (shaded).
- If, at any time, all progress on completing the project has been halted or the project has been canceled, FEMA will revise the affected FIRM panel(s) to present flood hazard and risk information based on the levee system not adequately reducing the base flood hazard. The affected area would be analyzed to determine how to properly remap the resulting flood hazards.
To maintain the Zone A99 designation on the affected FIRM panel(s), the community must certify that no present delay to completing the project can be attributed to local sponsors of the project, and that a good faith effort to complete the project is being made. The community needs to submit this certification to the FEMA Regional Office annually, on the anniversary of receiving the “adequate progress” determination.
If the community notifies the FEMA Regional Office that all progress on completing the project has been halted or the project has been canceled, FEMA will revise the appropriate FIRM panel(s) to show the affected area as Zone A or Zone AE, depending on the type of engineering study that had been performed.