Judge Tosses Fight Over FEMA Flood Maps

BENTON, Ill. (CN) - A federal judge refused Madison County, Illinois' request for an injunction against the Federal Emergency Management Agency, in a fight over flood insurance rate maps and accreditation of levees.

U.S. District Judge J. Phil Gilbert found that the action from several communities along the American Bottoms area is moot.

The American Bottoms covers 175 square miles in the Mississippi River floodplain in Southern Illinois, from Alton to the Kaskaskia River.

"Put simply, FEMA has returned to the drawing board with respect to the American Bottoms area and similar regions across the country," Gilbert wrote. "Meanwhile, preexisting FIRMs [Flood Insurance Rate Maps] that recognize the five underlying levees as adequate remain effective. Those maps indefinitely control flood insurance rates and building code regulations in the American Bottoms area."

FEMA sent letters to communities affected by the levees in 2007 stating that the levees would no longer be accredited due to increasing concerns about under seepage.

Communities surrounding the levees, concerned with skyrocketing insurance rates, filed legal action questioning FEMA practices on the flood maps.

Judge Gilbert found that the plaintiffs would not have been likely to succeed on the merits of the case, which was barred by sovereign immunity.

But Gilbert did not shy away from blasting FEMA.

"As a final matter, the Court notes that FEMA has danced the 'Potomac Two-Step' over the last few months," Gilbert wrote. "At oral argument, FEMA acknowledged that the letters of October 2007 are no longer operative and, more importantly, that the levees of the American Bottoms area are currently accredited. Yet, FEMA refused to issue or promulgate a written notice evincing same.

"The court cannot comprehend why FEMA - a governmental agency whose mission is to serve the public - cannot or will not withdraw or rescind, in written form, the portion of the October 2007 letters stating the levees and levee systems do not meet regulatory requirements and will be deaccredited. Even courts have been known to withdraw and correct orders and opinions when circumstances call for it. Here, congressional mandate requires FEMA to prospectively employ a different analysis standard that has not yet been developed; therefore, the preexisting FIRMs that recognize the underlying levees as adequate remain effective. If the levees and levee systems are currently accredited and subject to future analysis under an undefined standard and a renewed administrative review process, why not say so in writing?"

Gilbert concluded his opinion by writing in boldface type: "The court wishes to make clear - to anyone with any interest whatsoever in the American Bottoms area, especially current, prospective, and formerly prospective residents and businesses of the region - that the levees of the American Bottoms are accredited and have been accredited at all times relevant to this lawsuit."

The American Bottoms levees were built in the 1940s and 1950s and protect more than 150,000 people and 7,000 businesses. After FEMA's 2007 announcement, officials of three counties along the levees enacted a quarter-cent sales tax to finance levee improvements and established the Southwestern Illinois Flood Prevention District to oversee the improvements. Recently, the district has approved $151 million in improvements to the levees to be completed by 2014.

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