Closed Basin Lake Flooding - Interim final rule
[Federal Register: August 2, 1999 (Volume 64, Number 147)]
[Rules and Regulations]
[Page 41825-41827]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02au99-17]
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FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 61
RIN 3067--AD00
National Flood Insurance Program (NFIP); Insurance Coverage and Rates
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Interim final rule; request for comments.
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SUMMARY: We (the Mitigation Division) are adding an endorsement to the Standard Flood Insurance Policy (SFIP) that will
establish a permanent procedure for honoring claims for buildings damaged by continuous lake flooding from closed basin lakes or under imminent threat of flood damage from those closed basin lakes.
DATES: This interim final rule is effective on August 2, 1999. Please submit any comments in writing by October 1, 1999.
ADDRESSES: Please send any comments to the Rules Docket Clerk, Office of the General Counsel, Federal Emergency Management Agency, 500 C Street SW., room 840, Washington, DC 20472, (facsimile) 202-646-4536, or (email) rules@fema.gov.
FOR FURTHER INFORMATION CONTACT: Charles M. Plaxico, Jr., Federal Emergency Management Agency, Mitigation Division, 500 C Street SW., room 433, Washington, DC 20472, 202-646-3422, or (email) charles.plaxico@fema.gov.
SUPPLEMENTARY INFORMATION: Residents of the Devils Lake area in northeastern North Dakota face extraordinary flood conditions. During the last three years, the level of the lake has risen twelve feet, negating property owners' short-term flood mitigation efforts, such as temporary dikes, and flooding hundreds of properties and threatening many more.
The conditions at Devils Lake Basin are unique because the lake is part of a ``closed basin,'' that is, although it lies within the Red River-Hudson Bay drainage system, no water has flowed from the Devils Lake Basin in recorded history (since the 1830s). Instead, Devils Lake, together with adjacent Stump Lake, collects the Basin's surface runoff flowing through many small coulees and lakes. (Devils Lake collects about 86% of the runoff; Stump Lake collects the remainder.) The runoff remains in these two lakes until it evaporates or enters the groundwater table.
Since April 1996, as Devils Lake has steadily risen from 1435.2 mean sea level (MSL) to 1447.2 MSL, we have worked with State and local governments as well as Devils Lake property owners insured under the National Flood Insurance Program to provide timely, longer term solutions to this extraordinary problem. Exercising my authority under the Standard Flood Insurance Policy, as Federal Insurance Administrator, I have waived a policy requirement that was not appropriate in light of the unique circumstances at Devils Lake. This decision has permitted property owners along Devils Lake to use claim proceeds to relocate their buildings out of harm's way. (Specifically, I have waived the requirement that a building on Devils Lake be continuously flooded for 90 days before declaring it a total loss, thus honoring a claim that provides funds for the insured to take mitigation action.) This decision has meant a cost savings for the National Flood Insurance Program (NFIP).
We estimate that, by being proactive, rather than waiting for an insured building to be inundated for 90 days by the rising lake levels, we have saved the program on average 25% for each claim in the Devils
Lake area. Paying in advance for these inevitable flood losses so that policyholders can use the claim proceeds to relocate their homes so that we can recover salvage simply makes the best public policy and insurance sense under the circumstances.
Since April 1996, we have communicated this waiver to the Write Your Own companies-the private insurance companies that sell flood insurance policies and adjust claims under the NFIP-through a series of
seven separate Policy Issuances to try to keep pace with revised predictions of the crests on Devils Lake. We feel that a piecemeal approach is inadequate and that a better remedy for the dynamic conditions, such as those at Devils Lake, is to offer a permanent solution--one that is comprehensive and uniform for other closed basin lakes. This interim final rule does that.
This interim final rule adds an endorsement to the Standard Flood Insurance Policy that would make buildings damaged by or imminently threatened by continuous flooding from closed basin lakes eligible to
be declared a total loss without being continuously flooded for 90 days. It also establishes long-term floodplain management solutions for the imperiled property to eliminate or hold to a minimum the need for
future flood insurance claims. For example, this interim final rule requires local governments having jurisdiction over the imperiled property to adopt and enforce permanent mitigation measures. Among
these measures are: (1) prohibiting new construction--with limited exceptions--that may be subject to flooding by the rising lake; and (2) restricting for open space--with limited exceptions--any affected property the community may acquire an interest in.
National Environmental Policy Act
This interim final rule qualifies to be categorically excluded according to 44 CFR 10.8 (d) (2) (ii). In addition, no extraordinary circumstances have been found that would override this exclusion; therefore, an environmental assessment is not required.
Executive Order 12866, Regulatory Planning and Review
This interim final rule is not a significant regulatory action within the meaning of Sec. 2(f) of E.O. 12866 of September 30, 1993, 58 FR 51735, and has not been reviewed by the Office of Management and Budget. Nevertheless, this rule adheres to the regulatory principles set forth in E.O. 12866.
Pub. L. 104-121, Congressional Review of Agency Rulemaking
This interim final rule is not a ``major rule'' within the meaning of section 804 of Pub. L. 104-121, Congressional Review of Agency Rulemaking. We have submitted a report to Congress summarizing the
scope and effect of the rule, as required by section 801 of Pub. L. 104-121.
Paperwork Reduction Act
This interim final rule does not contain a collection of information and is therefore not subject to the provisions of the Paperwork Reduction Act.
Executive Order 12612, Federalism
This interim final rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This interim final rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.
List of Subjects in 44 CFR Part 61
Flood Insurance, insurance coverage and rates.
Accordingly, we amend 44 CFR part 61, as follows:
PART 61--INSURANCE COVERAGE AND RATES
1. The authority citation for Part 61 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978; 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.
Appendices A (1), A (2), A (3) [Amended]
2. Amend Part 61 by adding ``Endorsement for Closed Basin Lakes'' after the last article of each of the following: Appendix A (1), Standard Flood Insurance Policy, Dwelling Form; Appendix A (2), Standard Flood Insurance Policy, General Property Form; and Appendix A (3), Standard Flood Insurance Policy, Residential Condominium Building Association Policy. The added endorsement, which is identical in each appendix, reads as follows:
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Endorsement for Closed Basin Lakes
Under 44 CFR 61.13 (d), we are establishing this endorsement for closed basin lakes, which supplements Article 9.T of the Dwelling Policy, Article 8.V of the General Property Policy, and Article 10.V of the Residential Condominium Building Association Policy. (A ``closed basin lake'' is a natural lake from which water leaves primarily through evaporation and whose surface area now exceeds or has exceeded one square mile at any time in the recorded past. Most of the nation's closed basin lakes are in the western half of the
United States where annual evaporation exceeds annual precipitation and where lake levels and surface areas are subject to considerable fluctuation due to wide variations in the climate. These lakes may overtop their basins on rare occasions.) If your insured building is
subject to continuous lake flooding from a closed basin lake, we will pay your claim as if the building is a total loss even though it has not been continuously inundated for 90 days, subject to the following conditions:
1. Lake flood waters must damage or imminently threaten to damage your building.
2. Prior to approval of your claim, you must:
a. Agree to a claim payment that reflects your buying back the salvage on a negotiated basis; and
b. Grant the conservation easement contained in the Federal Emergency Management Agency's (FEMA) ``Policy Guidance for Closed Basin Lakes,'' to be recorded on the deed of the property. FEMA, in consultation with the community in which the property is located, will identify on a map an area or areas of special consideration (ASC) in which there is a potential for flood damage from continuous lake flooding. FEMA will give the community the agreed-upon map showing the ASC. This easement will only apply to that portion of the property in the ASC. It will allow certain agricultural and recreational uses of the land. The only structures it will allow on any portion of the property within the ASC are certain, simple agricultural and recreational structures. If any of these allowable structures are insurable buildings under the National Flood Insurance Program (NFIP) and are insured under the NFIP, they will not be eligible for the benefits of this endorsement. If a U.S. Army Corps of Engineers (USACE) certified flood control project or
otherwise certified flood control project later protects the property, FEMA will, upon request, amend the ASC to remove areas protected by those projects. The restrictions of the easement will then no longer apply to any portion of the property removed from the ASC.
3. Within 90 days of approval of your claim, you must move your building to a new location outside the ASC. FEMA will give you an additional 30 days to move if there is sufficient reason to extend the time.
4. Prior to the final payment of your claim, you must acquire an elevation certificate and a floodplain management permit from the local floodplain administrator for the new location of your building.
5. Prior to the approval of your claim, the community having jurisdiction over your building must:
a. Adopt a permanent land use ordinance, or a temporary moratorium for a period not to exceed 6 months to be followed immediately by a permanent land use ordinance, that is consistent with the provisions specified in the easement required in 2.b. above.
b. Agree to declare and report any violations of this ordinance to FEMA so that under Sec. 1316 of the National Flood Insurance Act of 1968, as amended, it can deny flood insurance to the building;
and
c. Agree to maintain as deed-restricted, for purposes compatible with open space or agricultural or recreational use only, any affected property the community acquires an interest in. These deed
restrictions must be consistent with the provisions of 2.b. above except that even if a certified project protects the property, the land use restrictions continue to apply if the property was acquired under the Hazard Mitigation Grant Program or the Flood Mitigation
Assistance Program. If a non-profit land trust organization receives the property as a donation, that organization must maintain the property as deed-restricted, consistent with the provisions of 2.b. above.
6. Prior to the approval of your claim, the affected State must take all action set forth in FEMA's ``Policy Guidance for Closed Basin Lakes.''
7. You must have NFIP flood insurance coverage continuously in
effect from a date established by FEMA until you file a claim under this endorsement. If a subsequent owner buys NFIP insurance that goes into effect within 60 days of the date of transfer of title, any gap in coverage during that 60-day period will not be a violation of this continuous coverage requirement.
8. This endorsement will be in effect for a community when the FEMA Regional Director for the affected region gives the community, in writing, the following:
a. Confirmation that the community and the State are in
compliance with the conditions in numbers 5 and 6 above, and
b. The date by which you must have flood insurance in effect.
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(Catalog of Federal Domestic Assistance No. 83.100,''Flood Insurance'')
Dated: July 27, 1999.
Jo Ann Howard,
Administrator, Mitigation Division.
[FR Doc. 99-19765 Filed 7-30-99; 8:45 am]
BILLING CODE 6718-03-P
Last Modified: Friday, 24-Mar-2006 14:38:31 EST