Developer Loses Ruling on Flood Plain Assessment

RICHMOND, Va. (CN) - A South Carolina developer lost its bid to revive state-law claims against a FEMA contractor that allegedly used a faulty hydraulic model to determine that land along the Congaree River was in a flood plain.

The 4th Circuit upheld the dismissal of Columbia Venture's complaint against Dewberry & Davis, an engineering firm hired by FEMA in 1998 to reassess flood elevations along the river.

Dewberry's hydraulic model designated a large portion of Columbia Venture's property as part of a floodway, preventing the company from developing the land, thus reducing its value.

After filing an unsuccessful administrative appeal with FEMA, Columbia Venture sued Dewberry & Davis in federal court, alleging professional malpractice, civil conspiracy, injurious falsehood and violation of the South Carolina Unfair Trade Practices Act.

The developer argued that Dewberry's hydraulic model was "flawed and inaccurate," and that FEMA concealed this information during the administrative appeal.

The district court ruled for Dewberry, saying Columbia Venture was trying to circumvent the National Flood Insurance Act (NIFA) for "another bite at the apple."

A three-judge panel of the 4th Circuit agreed.

Allowing state-law claims against FEMA contractors would hinder lawmakers' goals in passing the federal law, the panel ruled.

Congress chose to limit the appeals process in the Act to enable FEMA to "constantly reappraise the program and to expeditiously identify and disseminate information about flood-prone areas," Judge Dennis Shedd wrote. To allow state-law claims to circumvent that limited process would undermine Congress' intent, he added.

"Such litigation costs will certainly be passed on to FEMA, and litigation involving its flood elevation determinations will likely delay FEMA's identification and mapping of flood-prone areas," Shedd wrote.

"This result is precisely what Congress was trying to avoid when it enacted the limited appeals process. We conclude that state law tort claims against FEMA's independent contractors would be an obstacle to the accomplishment of the primary purposes of the NFIA."

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