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Barrow v. Federal Emergency Management Agency

United States District Court, S.D. Georgia, Savannah Division

July 9, 2015

CRAIG BARROW, III, Plaintiff,
v.
FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendant.

ORDER

J. RANDAL HALL, District Judge.

Now before the Court is Defendant Federal Emergency Management Agency's ("FEMA") motion to dismiss for lack of subject matter jurisdiction. (Doc. 15.) For the reasons set forth below, the Court DENIES FEMA's motion.

I. BACKGROUND

Plaintiff brought this suit challenging FEMA's final flood hazard determination for property in the City of Guyton in Effingham County, Georgia. (Am. Compl., Doc. 14, ¶ 1.)

A. Statutory Background

Under the National Flood Insurance Act ("the Act"), FEMA creates and maintains Flood Insurance Rate Maps ("FIRMs") of any area that is subject to naturally occurring floods. 42 U.S.C. §§ 4014(f), 4101(g). FEMA determines base flood elevations to create these maps. See 44 C.F.R. § 59.1 (defining "flood elevation determination"). FEMA also periodically re-evaluates FIRMs to determine whether conditions have changed and to accurately revise flood hazard information. 42 U.S.C. §§ 4101(e).

The Act provides a process for appeal by affected communities and owners/lessees of real property within the community who believe that their property rights may be adversely impacted by the proposed base flood elevation determinations. See 42 U.S.C. § 4104. Before a preliminary FIRM becomes final and legally effective, the Act requires FEMA to (1) publish for comment the proposed base flood elevations in the Federal Register, (2) directly notify the community's chief executive officer, and (3) publish notification at least twice in a prominent local newspaper. Id . § 4104(a) & (b). The newspaper notices must be published within ten days of each other. Id . § 4104(b). The second newspaper publication initiates a 90-day appeal period. Id.

The sole basis for appealing the proposed base flood elevations is "the possession of knowledge and information indicating that (1) the elevations being proposed by the Director with respect to an identified area having special flood hazards are scientifically or technically incorrect, or (2) the designation of an identified special flood hazard area is scientifically or technically incorrect." Id .; see also 44 C.F.R. § 67.6(a).

The Act also allows judicial review of FEMA's final determination resolving an administrative appeal. 44 U.S.C. § 4104(g). "Any appellant aggrieved by any final determination of the Administrator upon administrative appeal... may appeal such determination to the United States district court for the district within which the community is located not more than sixty days after receipt of notice of such determination." Id . The Administrative Procedure Act, 5 U.S.C. §§ 701-706, governs the Court's scope of review. Id.

B. Factual Background

Plaintiff owns property bordered by the Ogeechee River and Riverside Drive in Effingham County, Georgia. (Am. Compl. ¶ 5.) On April 8, 2013, FEMA published a Federal Register notice of proposed Flood Hazard Area boundaries on the FIRM for parts of the City of Guyton and Effingham County. (Id. ¶¶ 17-18; Pl.'s Resp., Doc. 17, Ex. 3.) FEMA notified the City of Guyton and Effingham County of its proposed flood hazard determinations on May 7, 2013, and subsequently published the requisite public notices, with the second appearing in the Effingham Herald on May 21, 2013. (Laura Algeo Decl., Doc. 15, Ex. 2 ¶ 6.) The May 21, 2013 newspaper publication triggered the 90-day appeal period, ending August 19, 2013. (Id.)

Plaintiff's appeal arose out of the City of Guyton's proposal to spread treated wastewater on property located directly across the road from Plaintiff's property. (Am. Compl. ¶ 10.) Parts of the relevant City property were not included in the Zone A Special Flood Hazard Area on FEMA's proposed FIRM. (Id. ¶ 11.) Plaintiff believes that if FEMA included those parts of the City's property in the Special Flood Hazard Area, then it is unlikely Georgia's Environmental Protection Division would allow the City to spread treated wastewater there. (Id. 13.)

Accordingly, on July 8, 2013, Plaintiff submitted his appeal to FEMA through counsel.[1] (Doc. 17, Ex. 4.) The appeal included comments and map revisions requesting that the Zone A Special Flood Hazard Area boundary on the preliminary FIRM be expanded based on previous observations of flooding in two specific locations - "Longitude -81.480775/Latitude 32.355650" and "Longitude -81.479339/Latitude 32.356586" - and data published by the U.S. Geological Survey regarding historical stream flow and flooding for the Ogeechee River. (Id.) Plaintiff's comments also included a map that identified an "Area of Interest" for which he sought to increase a portion of the Special Flood Hazard Area, defined by a red dotted line. (Doc. 17, Ex. 5.)

On July 23, 2013, FEMA sent a letter to Mayor Michael Garvin acknowledging the receipt of Plaintiff's request for reconsideration of the preliminary FIRM. (Doc. 17, Ex. 6.) The letter stated that "FEMA is considering the request an appeal because it satisfied the data requirements defined in Title 44, Chapter I, Part 67 of the ...


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