Friends of Alewife Reservation (FAR)
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Dialogue about Route 2 between FEMA and Arlington neighbor |
To those with climate concerns related to flooding at Alewife:
Many members of our community were apprised of the need for community approval of development on a Federal Emergency Management Agency regulation of a "floodway" where no water rise is allowed. The large Route 2 development (formerly faces) has been permitted and has greatly moved forward since this dialogue happened. The McKinnon project too was in a "Floodway". The enormous parcel next to it is also in a "floodway" (See city map #42 attached with FEMA designations), and becoming closer to development by Bulfinch Co., adjacent to the public open meadow which has brought forth untold plant riches this summer from the Reservation and from original plantings after the 3 acre parking lot pavement was removed. We wish to look once again at federal regulations regarding this area, and today, still open space, which will be the size of 3 box Walmarts of around 600,000 square feet and which is advertising for tenants.
We are seeing a million square feet of development going up tightly around the Cambridge-Alewife 100 year floodplain in times of severe climate change and the threat of flooding. The dialogue between a local neighbor and FEMA officials was sent to the following persons:
: Questions for FEMA about floodway and floodplain development:
To: Sue Bass,Ellen Mass, Anne-Marie Lambert, Ernie Kirwan, Craig Kelley, Martha Moore, Kit Dreier, Linda Caswell, Will Brownsberger, Michael Baram, Idith Haber, Darrell King, Anne Paulsen, EkOng Kar, Singh Khalsa, Stanley Dzerzeski, Brian Rehrig, Quinton Zondervan, Nelli Aikenhead, Sustainable Belmont, Charlie Wyman, David Webster, Dix Campbell, Neal Winston, Grant Monahon, Bill august, Russ Cohen, John Dieckmann, Ron Geiger, Faustino Lichauco, Stephanie Liu, Mark Paolillo, Peg Velie, Roger Wrubel, Miriam Weil, Clarissa Rowe, Julia Blatt, minkavb
Hi folks,
Below is a summary of responses to questions asked to FEMA regarding floodway development, no-rise certifications and CLOMRs.
While I am concerned about development in the whole area, I have focused on DP and Faces because they are furthest along. I recently contacted the developer of Faces as piles were being driven the same day that City Engineer said he didn't know that any infrastructure permits had been issued for Faces. The developer responded that they anticipated that the CLOMR would be approved and would move forward regardless because of obligations to investors.
Here are the questions (reworded slightly) I asked after receiving their response which is further below:
Thanks for getting back to me. The one point that I want to verify which has been of concern since the start of my research is that of cumulative impact. You briefly discuss it in question 7, but I want to verify a few things.
1. Two buildings at Discovery Park were under construction or completed prior to the new FEMA FIRM maps which went into effect in June 2010. While they claimed no rise would occur, the data seem to indicate that they may have caused an increase in the base flood elevation.
2. The Faces development, which is owned by a separate developer, used new (higher) elevation data, not the elevation data from the updated FIRMS. The developer claimed no development had occurred on the Faces site, that the site was abandoned from 2002-2010 (despite the fact that DP had constructed building within 100 feet of the site). They justified using this new elevation data because they weren 't going to make things worse, even though they are already worse than what the FIRMS say. While this may be legal, it seems like FEMA needs to rethink their regulations so cumulative impact is considered, especially since the engineer (BSC) is the same for Faces, DP and Residences at Acorn Park. In addition, both Faces and DP hired AECOM to do the no-rise and CLOMR analysis.
3. The remaining development at Discovery Park is owned by the same company that developed the initial buildings. I have yet to see their CLOMR application (I will be meeting with the engineer and developer this week). They claimed no rise would occur with their initial development, although it appears it may have. They are acknowledging a rise will occur here, but getting around it with a CLOMR. Since the owners (Bullfinch), engineers (BSC) and elevation analysts (AECOM) are the same, although the parcels are different, shouldn't they be required to take into account what rise they caused with the first development?
4. The remaining 3 buildings and garage at DP were initially going to be phased. In recent months they combined the parcels and plan to move forward with the entire development. The chances of impact are obviously greater the more you develop in a floodway and there is no turning back. I know FEMA has no say in the permitting process and Cambridge will move forward as soon as they can. I would imagine, however, that FEMA would prefer that phased construction be done and the impact of each phase be evaluated.
5. Is FEMA even considering the two projects (DP and Faces) in tandem since the development will occur at the same time. The same engineer filed the CLOMR (AECOM) applications for both developments. I know in the Faces CLOMR, they make absolutely no mention that another 500,000 sf of development will occur at the same time @ 100 feet away. I would guess that they make no mention of the Faces on the DP CLOMR. This is "suspicious" and might call for the two CLOMR reviewers to work together approving the CLOMRs. All of this development can not be looked at as separate pieces. FEMA has the obligation to protect the general public by looking at aggregate impact. Unfortunately, it seems like this is not the way the system works.
If it is the case that FEMA doesn't need to consider anything else that has occurred, or will occur in the same floodway concurrently (cumulatively) than please just verify this.
Here are the original questions and response.
Thank you for your patience as we compiled responses to your questions, and for taking an active interest in the flood risk of your community and the National Flood Insurance Program (NFIP). The NFIP is a partnership between Federal and local governments. Local participation in the program is critical to ensuring that flood risk is properly identified and mapped, and awareness of flood risk is a crucial component to the success of the NFIP.
You have voiced concerns regarding proposed and recent development at the Faces and Discovery Park sites in Cambridge, Massachusetts and have requested information from FEMA, the State of Massachusetts Department of Conservation and Recreation (DCR), and STARR (a mapping partner to FEMA) regarding FEMA’s Conditional Letter of Map Revision (CLOMR) process, NFIP regulations, NFIP suspension, and floodplain management requirements.
Below are the responses we’ve compiled:
Question 1: When is construction in a floodway allowed per National Flood Insurance Program (NFIP) regulations?
Development in the regulatory floodway is allowed if it can be demonstrated that the proposed project will result in absolutely no rise to the base flood elevation OR they can meet the requirements of the Code of Federal Regulations (CFR) 65.12 via a Conditional Letter of Map Revision (CLOMR).
A CLOMR is FEMA's comment on a proposed project that would, upon construction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective Base Flood Elevations (BFEs), or the Special Flood Hazard Area (SFHA). The letter does not revise an effective National Flood Insurance Program (NFIP) map. It indicates whether the project, if built as proposed, would be recognized by FEMA as meeting the necessary requirements of the NFIP.
From CFR 60.3 (d) (4): Notwithstanding any other provisions of § 60.3, a community may permit encroachments within the adopted regulatory floodway that would result in an increase in base flood elevations, provided that the community first applies for a conditional FIRM and floodway revision, fulfills the requirements for such revisions as established under the provisions of § 65.12, and receives the approval of the Administrator.
If you are a community participating in the NFIP, a CLOMR is required for those projects that will result in an increase in the base flood water-surface elevation (WSEL) of greater than 1.00 foot for streams with BFEs specified but no regulatory floodway designated, or any base flood WSEL increase from proposed construction within a regulatory floodway. Thus, if the community goes forward with development/permit/construction without a CLOMR issuance, and it was required per NFIP regulations due to the reasons described above, then the community may be in violation of the NFIP and risk suspension. Please see this website regarding community permitting construction in a floodway:
http://www.fema.gov/plan/prevent/floodplain/nfipkeywords/no_rise.shtm
“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. “
How is this relevant to Faces proposed development?: If the community has on record a no-rise certification from a certified professional engineer for a particular proposed project, FEMA does not require a CLOMR prior to construction as a requirement of the NFIP. This appears to be the situation that Faces development is in. However, please note this CLOMR review is ongoing. If there is no rise and no impact on the BFEs or SFHA as shown by technical and scientific analysis, then the Faces CLOMR was not technically required per NFIP regulations, and the community could proceed with permitting without a finalized CLOMR. Also, no property notifications would need to be sent, as the proposed development has been shown to not affect properties or structures.
How is this relevant to Discovery Park proposed development?: Since Discovery Park proposed construction showed a rise, a CLOMR was required per NFIP regulations and the applicant had to meet the requirements of CFR 65.12, which includes notifying affected property owners and getting signed community concurrence from each affected community. The engineering analysis determined which properties would be affected. If you did not receive a notice, then the proposed changes to the BFEs/SFHAs are not expected to affect your property, per the engineering analysis submitted. Regardless of what community you are in, property notifications for CLOMRs are only required for those properties that have been identified as having the potential of being affected.
Point of clarification on Property Notices required for CLOMRs: To meet the requirements of CFR 65.12, the applicant must show that no structures will be impacted by the increase in BFE/SFHA. Properties (i.e land) may be affected by a proposed project, but not the structures themselves. If the proposed project is projected to affect a property (but not structure) due to proposed changes in BFE/SFHA, then a legal notice must be sent to the property owner. Legal notice can be sent by way of certified mail with return receipt requesting signature– meaning the owner acknowledges they received the notification, not approved of the changes. The property owner does not have to provide their approval of the project in order for the CLOMR review to move forward. Only the community officials must sign off on the CLOMR. If the community officials do not sign off on the CLOMR, it will not move forward. Please note, since the proposed construction cannot affect structures (per CFR 65.12), the flood insurance requirements would not change. However, changes to SFHAs/BFEs on properties may affect homeowners who are looking to construct on their properties. Those properties (land), once the proposed development is constructed, may now be in a floodplain and that could affect flood insurance requirements once new flood maps go effective. Property owners affected would not be able to change the revised FEMA maps unless they are able to provide scientific or technical data that disputes the SFHA/BFE that resulted post-construction.
Question 2: When is a community in violation of the NFIP? What happens if a community permits development in a floodway and violates an NFIP regulation?
FEMA does not have control over when a community provides permitting to a developer nor do they have control if the community permits development in a floodway without proof of no-rise certification and/or without the issuance of a CLOMR. If the community issues permits without such information, FEMA may find the community in violation of the NFIP (this is determined on a case-by-case basis). Please see above regarding when FEMA requires a CLOMR. Please note that FEMA does not issue no-rise certifications; through the CLOMR process they can only review and comment on whether or not the project, if constructed as proposed, will meet minimum NFIP requirements.
As part of a CLOMR, any community affected by proposed SFHA or BFE changes must sign a community concurrence form regarding the CLOMR before the CLOMR can move forward and be issued by FEMA. If the CLOMR is not signed off on by either/any of the affected communities, if there is a rise in base flood water-surface elevation (WSEL) (in which case a CLOMR is required by FEMA), and if the community where the project is located proceeds with allowing construction/issuing a permit, the community may be flagged for violation and has the potential of being suspended from the NFIP.
FEMA evaluates potential violations and determines the appropriate course of action based on the violation, which may include Probation, Reclassification in the Community Rating System, or Suspension from the NFIP. Failure to comply with NFIP regulations regarding development in a floodway may result in suspension from the NFIP. However, this would need to be fully assessed once it is identified there is a potential violation.
Suspending a community from the NFIP would, amongst other things, affect the residents who have a federally backed mortgage and must purchase flood insurance. Those homeowners would be unable to buy flood insurance through the Federal Government. However, private flood insurance would still be available to them, though likely at a higher premium. The affects on a community if they are suspended from the NFIP are described below.
A community that does not join the NFIP, has withdrawn from the program, or is suspended from it faces the following sanctions:
If development is moving forward and there is no apparent violation to the NFIP to date (as is the case with Faces development), you and other concerned individuals can talk with your Community and State officials or representatives if you have continued concerns over these developments. Also, FEMA cannot halt permit issuing or development in a community based on NFIP violations or potential violations. Community participation in the NFIP is voluntary.
Question 3: What recourse, if any, do notified affected residents and communities have if they oppose the granting of a CLOMR? For example, a number of Arlington residents and the Town were notified about the Discovery Park no-rise and CLOMR. Many of those residents do NOT want the development approved and the Town has not yet signed off on it. If Cambridge signs the CLOMR and issues the permit, can the builder just go ahead without regards to concerns?
For the Discovery Park CLOMR, the community officials in Arlington must also sign off on the CLOMR in order for the CLOMR to be issued by FEMA. However, as previously stated, the decision to permit is ultimately up to the community where the project is occurring (Cambridge in this case). FEMA issuing a CLOMR does not give the applicant the go-ahead to begin construction. Permits must be issued by the community. There is no process for community members to appeal the CLOMR, as a CLOMR is only FEMA’s comment as to whether or not the project would be recognized by FEMA if the project is constructed as proposed. No Flood Insurance Rate Map (FIRM) or Flood Insurance Study (FIS) revisions are caused as the result of a CLOMR issuance. Homeowners concerned with new development should reach out the community and state officials responsible for issuing permits.
Question 4: Can a CLOMR judgment be appealed (I think I read it can)? If so, what is the appeal period (90 days)? How can I assure that I am notified when a CLOMR is approved. Can I get on a notification list or do I have to contact the reviewers continuously to check the status of these applications?
As previously stated, there is no process for community members to appeal the CLOMR, as a CLOMR is only FEMA’s comment as to whether or not the project would be recognized by FEMA if the project was constructed as proposed. No Flood Insurance Rate Map (FIRM) or Flood Insurance Study (FIS) revisions are caused as the result of a CLOMR issuance.
If a Letter of Map Revision (LOMR) is issued (post-construction), any changes to the Special Flood Hazard Area (SFHA) or Base Flood Elevations (BFEs) are appealable by the public. After a LOMR is issued, pertinent information is published in the local newspaper. Within 90-days of the second publication in the local newspaper, the public may request that FEMA reconsider the determination. Any request for reconsideration must be based on scientific or technical data. This appeal concerns only the changes to the FIRM and FIS and is independent of the permitting and construction associated with the project; FEMA does not issue permits.
You can track the status of the CLOMR case online through FEMA’s Mapping Information Platform (MIP). Please follow this link and enter in the information about the case you are interested in: MIP Public Reports
The CLOMR project numbers are:
Faces CLOMR: 12-01-0314R
Discovery Park CLOMR: 11-01-2089R
Question 5: Does FEMA discourage development in a floodway?
FEMA does not like to see development in a floodway, which is why there are strict requirements in the NFIP regulations that make it very difficult for a developer to construct in a floodway, though not impossible. Please see CFR 65.12, as previously discussed. In addition, many communities and some States have decided to adopt ordinances that state absolutely no development can occur in a floodway, with no exceptions. This is more restrictive than FEMA’s requirements, and all communities/States are welcome to enforce any floodplain management techniques that are more restrictive than FEMA’s NFIP regulations. We encourage you to review the community floodplain management ordinances that each community has adopted. It is the responsibility of the community to enforce their adopted ordinances. We also encourage you to work together with the community officials in both Arlington and Cambridge to come to a satisfactory understanding regarding both Faces and Discovery Park projects, and to hopefully determine an acceptable path forward for all parties involved.
Question 6: What recourse do Arlington residents and Town officials have to prevent construction?
Unfortunately, FEMA NFIP regulations cannot prevent permitting or construction in a community. The NFIP regulations that communities abide by are voluntary. If they do not follow the rules of the NFIP, then they risk suspension from the NFIP. You should work with your community officials and State representatives if you continue to have concerns over construction in the neighboring community.
Question 7: Should development on adjacent properties be considered when determining the effect on the water surface elevation (WSEL) for the Faces CLOMR?
For a CLOMR, when we evaluate if a proposed development in a floodway has any impact on the water surface elevation we would only be concerned with the effect of the proposed development. If the community had previously allowed development in the floodway that caused increases in the water surface elevation, and this development did not go through the CLOMR process, then it would be a potential violation and FEMA would evaluate the potential violation separately.
We understand your concern is time sensitive and we hope we have been able to provide complete answers to the inquiries you sent to FEMA, the State of Massachusetts DCR, and STARR. Please let us know if you have any additional questions.
Attachment: osplan_2010_map42-2.pdf
Many members of our community were apprised of the need for community approval of development on a Federal Emergency Management Agency regulation of a "floodway" where no water rise is allowed. The large Route 2 development (formerly faces) has been permitted and has greatly moved forward since this dialogue happened. The McKinnon project too was in a "Floodway". The enormous parcel next to it is also in a "floodway" (See city map #42 attached with FEMA designations), and becoming closer to development by Bulfinch Co., adjacent to the public open meadow which has brought forth untold plant riches this summer from the Reservation and from original plantings after the 3 acre parking lot pavement was removed. We wish to look once again at federal regulations regarding this area, and today, still open space, which will be the size of 3 box Walmarts of around 600,000 square feet and which is advertising for tenants.
We are seeing a million square feet of development going up tightly around the Cambridge-Alewife 100 year floodplain in times of severe climate change and the threat of flooding. The dialogue between a local neighbor and FEMA officials was sent to the following persons:
: Questions for FEMA about floodway and floodplain development:
To: Sue Bass,Ellen Mass, Anne-Marie Lambert, Ernie Kirwan, Craig Kelley, Martha Moore, Kit Dreier, Linda Caswell, Will Brownsberger, Michael Baram, Idith Haber, Darrell King, Anne Paulsen, EkOng Kar, Singh Khalsa, Stanley Dzerzeski, Brian Rehrig, Quinton Zondervan, Nelli Aikenhead, Sustainable Belmont, Charlie Wyman, David Webster, Dix Campbell, Neal Winston, Grant Monahon, Bill august, Russ Cohen, John Dieckmann, Ron Geiger, Faustino Lichauco, Stephanie Liu, Mark Paolillo, Peg Velie, Roger Wrubel, Miriam Weil, Clarissa Rowe, Julia Blatt, minkavb
Hi folks,
Below is a summary of responses to questions asked to FEMA regarding floodway development, no-rise certifications and CLOMRs.
While I am concerned about development in the whole area, I have focused on DP and Faces because they are furthest along. I recently contacted the developer of Faces as piles were being driven the same day that City Engineer said he didn't know that any infrastructure permits had been issued for Faces. The developer responded that they anticipated that the CLOMR would be approved and would move forward regardless because of obligations to investors.
Here are the questions (reworded slightly) I asked after receiving their response which is further below:
Thanks for getting back to me. The one point that I want to verify which has been of concern since the start of my research is that of cumulative impact. You briefly discuss it in question 7, but I want to verify a few things.
1. Two buildings at Discovery Park were under construction or completed prior to the new FEMA FIRM maps which went into effect in June 2010. While they claimed no rise would occur, the data seem to indicate that they may have caused an increase in the base flood elevation.
2. The Faces development, which is owned by a separate developer, used new (higher) elevation data, not the elevation data from the updated FIRMS. The developer claimed no development had occurred on the Faces site, that the site was abandoned from 2002-2010 (despite the fact that DP had constructed building within 100 feet of the site). They justified using this new elevation data because they weren 't going to make things worse, even though they are already worse than what the FIRMS say. While this may be legal, it seems like FEMA needs to rethink their regulations so cumulative impact is considered, especially since the engineer (BSC) is the same for Faces, DP and Residences at Acorn Park. In addition, both Faces and DP hired AECOM to do the no-rise and CLOMR analysis.
3. The remaining development at Discovery Park is owned by the same company that developed the initial buildings. I have yet to see their CLOMR application (I will be meeting with the engineer and developer this week). They claimed no rise would occur with their initial development, although it appears it may have. They are acknowledging a rise will occur here, but getting around it with a CLOMR. Since the owners (Bullfinch), engineers (BSC) and elevation analysts (AECOM) are the same, although the parcels are different, shouldn't they be required to take into account what rise they caused with the first development?
4. The remaining 3 buildings and garage at DP were initially going to be phased. In recent months they combined the parcels and plan to move forward with the entire development. The chances of impact are obviously greater the more you develop in a floodway and there is no turning back. I know FEMA has no say in the permitting process and Cambridge will move forward as soon as they can. I would imagine, however, that FEMA would prefer that phased construction be done and the impact of each phase be evaluated.
5. Is FEMA even considering the two projects (DP and Faces) in tandem since the development will occur at the same time. The same engineer filed the CLOMR (AECOM) applications for both developments. I know in the Faces CLOMR, they make absolutely no mention that another 500,000 sf of development will occur at the same time @ 100 feet away. I would guess that they make no mention of the Faces on the DP CLOMR. This is "suspicious" and might call for the two CLOMR reviewers to work together approving the CLOMRs. All of this development can not be looked at as separate pieces. FEMA has the obligation to protect the general public by looking at aggregate impact. Unfortunately, it seems like this is not the way the system works.
If it is the case that FEMA doesn't need to consider anything else that has occurred, or will occur in the same floodway concurrently (cumulatively) than please just verify this.
Here are the original questions and response.
Thank you for your patience as we compiled responses to your questions, and for taking an active interest in the flood risk of your community and the National Flood Insurance Program (NFIP). The NFIP is a partnership between Federal and local governments. Local participation in the program is critical to ensuring that flood risk is properly identified and mapped, and awareness of flood risk is a crucial component to the success of the NFIP.
You have voiced concerns regarding proposed and recent development at the Faces and Discovery Park sites in Cambridge, Massachusetts and have requested information from FEMA, the State of Massachusetts Department of Conservation and Recreation (DCR), and STARR (a mapping partner to FEMA) regarding FEMA’s Conditional Letter of Map Revision (CLOMR) process, NFIP regulations, NFIP suspension, and floodplain management requirements.
Below are the responses we’ve compiled:
Question 1: When is construction in a floodway allowed per National Flood Insurance Program (NFIP) regulations?
Development in the regulatory floodway is allowed if it can be demonstrated that the proposed project will result in absolutely no rise to the base flood elevation OR they can meet the requirements of the Code of Federal Regulations (CFR) 65.12 via a Conditional Letter of Map Revision (CLOMR).
A CLOMR is FEMA's comment on a proposed project that would, upon construction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective Base Flood Elevations (BFEs), or the Special Flood Hazard Area (SFHA). The letter does not revise an effective National Flood Insurance Program (NFIP) map. It indicates whether the project, if built as proposed, would be recognized by FEMA as meeting the necessary requirements of the NFIP.
From CFR 60.3 (d) (4): Notwithstanding any other provisions of § 60.3, a community may permit encroachments within the adopted regulatory floodway that would result in an increase in base flood elevations, provided that the community first applies for a conditional FIRM and floodway revision, fulfills the requirements for such revisions as established under the provisions of § 65.12, and receives the approval of the Administrator.
If you are a community participating in the NFIP, a CLOMR is required for those projects that will result in an increase in the base flood water-surface elevation (WSEL) of greater than 1.00 foot for streams with BFEs specified but no regulatory floodway designated, or any base flood WSEL increase from proposed construction within a regulatory floodway. Thus, if the community goes forward with development/permit/construction without a CLOMR issuance, and it was required per NFIP regulations due to the reasons described above, then the community may be in violation of the NFIP and risk suspension. Please see this website regarding community permitting construction in a floodway:
http://www.fema.gov/plan/prevent/floodplain/nfipkeywords/no_rise.shtm
“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. “
How is this relevant to Faces proposed development?: If the community has on record a no-rise certification from a certified professional engineer for a particular proposed project, FEMA does not require a CLOMR prior to construction as a requirement of the NFIP. This appears to be the situation that Faces development is in. However, please note this CLOMR review is ongoing. If there is no rise and no impact on the BFEs or SFHA as shown by technical and scientific analysis, then the Faces CLOMR was not technically required per NFIP regulations, and the community could proceed with permitting without a finalized CLOMR. Also, no property notifications would need to be sent, as the proposed development has been shown to not affect properties or structures.
How is this relevant to Discovery Park proposed development?: Since Discovery Park proposed construction showed a rise, a CLOMR was required per NFIP regulations and the applicant had to meet the requirements of CFR 65.12, which includes notifying affected property owners and getting signed community concurrence from each affected community. The engineering analysis determined which properties would be affected. If you did not receive a notice, then the proposed changes to the BFEs/SFHAs are not expected to affect your property, per the engineering analysis submitted. Regardless of what community you are in, property notifications for CLOMRs are only required for those properties that have been identified as having the potential of being affected.
Point of clarification on Property Notices required for CLOMRs: To meet the requirements of CFR 65.12, the applicant must show that no structures will be impacted by the increase in BFE/SFHA. Properties (i.e land) may be affected by a proposed project, but not the structures themselves. If the proposed project is projected to affect a property (but not structure) due to proposed changes in BFE/SFHA, then a legal notice must be sent to the property owner. Legal notice can be sent by way of certified mail with return receipt requesting signature– meaning the owner acknowledges they received the notification, not approved of the changes. The property owner does not have to provide their approval of the project in order for the CLOMR review to move forward. Only the community officials must sign off on the CLOMR. If the community officials do not sign off on the CLOMR, it will not move forward. Please note, since the proposed construction cannot affect structures (per CFR 65.12), the flood insurance requirements would not change. However, changes to SFHAs/BFEs on properties may affect homeowners who are looking to construct on their properties. Those properties (land), once the proposed development is constructed, may now be in a floodplain and that could affect flood insurance requirements once new flood maps go effective. Property owners affected would not be able to change the revised FEMA maps unless they are able to provide scientific or technical data that disputes the SFHA/BFE that resulted post-construction.
Question 2: When is a community in violation of the NFIP? What happens if a community permits development in a floodway and violates an NFIP regulation?
FEMA does not have control over when a community provides permitting to a developer nor do they have control if the community permits development in a floodway without proof of no-rise certification and/or without the issuance of a CLOMR. If the community issues permits without such information, FEMA may find the community in violation of the NFIP (this is determined on a case-by-case basis). Please see above regarding when FEMA requires a CLOMR. Please note that FEMA does not issue no-rise certifications; through the CLOMR process they can only review and comment on whether or not the project, if constructed as proposed, will meet minimum NFIP requirements.
As part of a CLOMR, any community affected by proposed SFHA or BFE changes must sign a community concurrence form regarding the CLOMR before the CLOMR can move forward and be issued by FEMA. If the CLOMR is not signed off on by either/any of the affected communities, if there is a rise in base flood water-surface elevation (WSEL) (in which case a CLOMR is required by FEMA), and if the community where the project is located proceeds with allowing construction/issuing a permit, the community may be flagged for violation and has the potential of being suspended from the NFIP.
FEMA evaluates potential violations and determines the appropriate course of action based on the violation, which may include Probation, Reclassification in the Community Rating System, or Suspension from the NFIP. Failure to comply with NFIP regulations regarding development in a floodway may result in suspension from the NFIP. However, this would need to be fully assessed once it is identified there is a potential violation.
Suspending a community from the NFIP would, amongst other things, affect the residents who have a federally backed mortgage and must purchase flood insurance. Those homeowners would be unable to buy flood insurance through the Federal Government. However, private flood insurance would still be available to them, though likely at a higher premium. The affects on a community if they are suspended from the NFIP are described below.
A community that does not join the NFIP, has withdrawn from the program, or is suspended from it faces the following sanctions:
- Flood insurance will not be available. No resident will be able to purchase a flood insurance policy through the NFIP.
- If the community withdraws or is suspended, existing flood insurance policies will not be renewed.
- No Federal grants or loans for the acquisition or construction of buildings may be made in identified flood hazard areas under programs administered by Federal agencies such as HUD, EPA, and SBA.
- No Federal disaster assistance may be provided to repair insurable buildings located in identified flood hazard areas for damage caused by a flood.
- No Federal mortgage insurance or loan guarantees may be provided in identified flood hazard areas. This includes policies written by FHA, VA, and others.
- Federally insured or regulated lending institutions, such as banks and credit unions, must notify applicants seeking loans for insurable buildings in flood hazard areas that:
- There is a flood hazard and
- The property is not eligible for Federal disaster relief.
If development is moving forward and there is no apparent violation to the NFIP to date (as is the case with Faces development), you and other concerned individuals can talk with your Community and State officials or representatives if you have continued concerns over these developments. Also, FEMA cannot halt permit issuing or development in a community based on NFIP violations or potential violations. Community participation in the NFIP is voluntary.
Question 3: What recourse, if any, do notified affected residents and communities have if they oppose the granting of a CLOMR? For example, a number of Arlington residents and the Town were notified about the Discovery Park no-rise and CLOMR. Many of those residents do NOT want the development approved and the Town has not yet signed off on it. If Cambridge signs the CLOMR and issues the permit, can the builder just go ahead without regards to concerns?
For the Discovery Park CLOMR, the community officials in Arlington must also sign off on the CLOMR in order for the CLOMR to be issued by FEMA. However, as previously stated, the decision to permit is ultimately up to the community where the project is occurring (Cambridge in this case). FEMA issuing a CLOMR does not give the applicant the go-ahead to begin construction. Permits must be issued by the community. There is no process for community members to appeal the CLOMR, as a CLOMR is only FEMA’s comment as to whether or not the project would be recognized by FEMA if the project is constructed as proposed. No Flood Insurance Rate Map (FIRM) or Flood Insurance Study (FIS) revisions are caused as the result of a CLOMR issuance. Homeowners concerned with new development should reach out the community and state officials responsible for issuing permits.
Question 4: Can a CLOMR judgment be appealed (I think I read it can)? If so, what is the appeal period (90 days)? How can I assure that I am notified when a CLOMR is approved. Can I get on a notification list or do I have to contact the reviewers continuously to check the status of these applications?
As previously stated, there is no process for community members to appeal the CLOMR, as a CLOMR is only FEMA’s comment as to whether or not the project would be recognized by FEMA if the project was constructed as proposed. No Flood Insurance Rate Map (FIRM) or Flood Insurance Study (FIS) revisions are caused as the result of a CLOMR issuance.
If a Letter of Map Revision (LOMR) is issued (post-construction), any changes to the Special Flood Hazard Area (SFHA) or Base Flood Elevations (BFEs) are appealable by the public. After a LOMR is issued, pertinent information is published in the local newspaper. Within 90-days of the second publication in the local newspaper, the public may request that FEMA reconsider the determination. Any request for reconsideration must be based on scientific or technical data. This appeal concerns only the changes to the FIRM and FIS and is independent of the permitting and construction associated with the project; FEMA does not issue permits.
You can track the status of the CLOMR case online through FEMA’s Mapping Information Platform (MIP). Please follow this link and enter in the information about the case you are interested in: MIP Public Reports
The CLOMR project numbers are:
Faces CLOMR: 12-01-0314R
Discovery Park CLOMR: 11-01-2089R
Question 5: Does FEMA discourage development in a floodway?
FEMA does not like to see development in a floodway, which is why there are strict requirements in the NFIP regulations that make it very difficult for a developer to construct in a floodway, though not impossible. Please see CFR 65.12, as previously discussed. In addition, many communities and some States have decided to adopt ordinances that state absolutely no development can occur in a floodway, with no exceptions. This is more restrictive than FEMA’s requirements, and all communities/States are welcome to enforce any floodplain management techniques that are more restrictive than FEMA’s NFIP regulations. We encourage you to review the community floodplain management ordinances that each community has adopted. It is the responsibility of the community to enforce their adopted ordinances. We also encourage you to work together with the community officials in both Arlington and Cambridge to come to a satisfactory understanding regarding both Faces and Discovery Park projects, and to hopefully determine an acceptable path forward for all parties involved.
Question 6: What recourse do Arlington residents and Town officials have to prevent construction?
Unfortunately, FEMA NFIP regulations cannot prevent permitting or construction in a community. The NFIP regulations that communities abide by are voluntary. If they do not follow the rules of the NFIP, then they risk suspension from the NFIP. You should work with your community officials and State representatives if you continue to have concerns over construction in the neighboring community.
Question 7: Should development on adjacent properties be considered when determining the effect on the water surface elevation (WSEL) for the Faces CLOMR?
For a CLOMR, when we evaluate if a proposed development in a floodway has any impact on the water surface elevation we would only be concerned with the effect of the proposed development. If the community had previously allowed development in the floodway that caused increases in the water surface elevation, and this development did not go through the CLOMR process, then it would be a potential violation and FEMA would evaluate the potential violation separately.
We understand your concern is time sensitive and we hope we have been able to provide complete answers to the inquiries you sent to FEMA, the State of Massachusetts DCR, and STARR. Please let us know if you have any additional questions.
Attachment: osplan_2010_map42-2.pdf