‘High and dry’ homeowner in floodway
t up a workshop in his backyard has now led to questions of whether Orange County resident David Duncan will be left holding the bag, and the responsibility, for a $200,000 home built without proper FEMA certification in a mapped floodway.
Although initially told his home was in Flood Plain A, the most restrictive of flood plain designations, Duncan would ultimately learn his pricey investment was located directly in a floodway where improvements of any kind are strictly prohibited without prior no-rise certification from a qualified engineer. Although not familiar with the jargon of FEMA’s flood plain regulations, it didn’t take long for Duncan to do his homework – even though the fruits of his labor have yielded more mysteries rather than answers to his questions.
To start with the basics, FEMA defines a regulated floodway as “the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height.” The agency further states, “Communities must regulate development in these floodways to ensure that there are no increases in upstream flood elevations. … Any project in a floodway must be reviewed to determine if the project will increase flood heights. An engineering analysis must be conducted before a permit can be issued. The community’s permit file must have a record of the results of this analysis, which can be in the form of a No-rise Certification. This No-rise Certification must be supported by technical data and signed by a registered professional engineer.”More information on floodway designation is listed with FEMA’s National Flood Insurance Program, which classifies a floodway as intended to “assist communities in managing floodplain development and its impacts on other property owners. The community is responsible for prohibiting encroachments including fill, new construction, and substantial improvements within the floodway unless hydrologic and hydraulic analyses show it will not increase flood levels within the community.”
That admittedly wasn’t done for Duncan’s 1.3-acre property or any of the other roughly dozen properties with improvements on Duncan’s street, Ashford Drive in Vidor’s Wexford Park. Jimmy Smith of Flair Realty is on record as the property developer. According to Smith, he was unaware the subdivision was erected in a floodway and the homes, one of which he assisted in brokering to Duncan, were built after receiving clearance from county and city officials.
“I went to the Corps of Engineers and they signed off,” Smith said, adding that city and county officials also signed on the dotted line when he was seeking certification to build in the Ashford Drive area. “It was all done with their approval and their supervision.”
Smith no longer owns or is brokering any property from Duncan’s neighborhood, he said.
Orange County Health and Code Compliance director Joel Ardoin said his agency believes the developer was not malicious in the oversight, and he anticipates the problem will be remedied since it appears to be accidental in nature. Still, Ardoin is hesitant in stating all will be rectified to the benefit of the unsuspecting homeowner.
“It was an honest mistake to the best of knowledge,” Ardoin said. “In this situation, we wouldn’t penalize the homeowners, but if it were done maliciously without regard for the rules, there would be a non-compliance order taken and the property wouldn’t be eligible for National Flood Insurance until the problem was remedied.”
As it stands, although Duncan’s home is located in a floodway, Ardoin said the property’s current flood insurance designation as Flood Plain A would be sufficient due to the county not marking the property as out of compliance.
In the worst-case scenario, the county itself could face stiff repercussions. According to Ardoin, if a county is “significantly” out of compliance, FEMA could deny National Flood Insurance coverage for the entire county. And, he added, “should there be a natural disaster, the county wouldn’t be eligible for FEMA assistance.”
However, Ardoin said he is fairly certain a solution can be reached without such drastic measures.
“We’ve never had an issue like this in Orange County,” Ardoin said, “so there’s really too many unknowns to give a firm answer as to what will happen next. We need to try to get our stuff together before we can give any useful information on where to proceed from here.”
Ardoin said the county is waiting on further instructions from FEMA as to how to bring the subdivision into compliance but doesn’t anticipate any word coming from the federal agency before next week.
FEMA spokeswoman Jacqueline Chandler echoed Ardoin’s optimism for rectification, saying, “If FEMA identifies violations in the community’s administration of its Flood Damage Prevention Ordinance, we work with the community to identify solutions. In most instances, FEMA and the community can successfully work together to resolve violations.”
She also backed up Ardoin in asserting that the individual homeowner wasn’t the one FEMA would penalize in the event the violations couldn’t be rectified satisfactorily. According to Chandler, “Flood insurance is available for structures located in NFIP participating communities (such as Duncan’s). A structure in a floodway is rated as in a Special Flood Hazard Area (high risk) as it would if there were no floodway designation.
“In terms of FEMA compliance, a no-rise certification is required for any proposed development in a designated floodway. If a