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State law, FEMA rules diverge on flood mitigation ordinance

An opinion issued last month by Attorney General Jim Hood reveals a discrepancy between state law and regulations set by the Federal Emergency Management Agency regarding the application of the Flood Mitigation Ordinance that is a big part of the National Flood Insurance Program.

Hood’s opinion, issued Aug. 17, says there is a provision in Mississippi law that allows for hunting and fishing camps to be exempt from flood mitigation ordinances adopted by individual counties. Those ordinances govern everything from the height of structures that sit in flood plains, to what type of flood insurance they’re required to carry.

Where the state’s exemption for hunting and fishing camps becomes a problem is with FEMA, whose regulations require that counties adopt the ordinances minus the exemption Hood says state law provides.

One of the provisions of the FMO says that the first floor of buildings in flood-prone areas have to be raised to a point above the base flood elevation.

“We have learned from certain counties in the Delta that FEMA is requiring the local governing authorities to enforce the (FMO) against all structures in the affected areas including hunting and fishing camps that are not flood-insured and whose owners do not wish to be insured,” Hood wrote in a letter to Mississippi’s congressional delegation. Hood is asking for congressional help to square the difference between state laws and FEMA regulations. Congress returned from its August recess Sept. 6.

“These camps are on the west side of the (Mississippi River) levee,” Hood’s letter read. “The local authorities have been told by persons from both MEMA and FEMA that if they exempt these hunting and fishing camps from the (FMO), the counties, and possibly the entire state, could be prohibited from participating in the NFIP.  Under our interpretation of state law, however, counties and cities are in fact prohibited from enforcing building codes against duly qualified hunting and fishing camps.

“While we certainly do not wish to jeopardize our continued participation in NFIP, I see no valid rationale for requiring hunting and fishing camps near the river which are not flood-insured to comply with flood-related elevation and other requirements.  It would seem that this matter could be resolved by FEMA allowing the counties to obtain sworn affidavits from these homeowners that they will not seek any federal insurance or aid without first meeting the requirements of the flood ordinance.”

Tom Ross, a Clarksdale attorney who represents the Coahoma County Board of Supervisors, asked Hood for the opinion. Ross said the discrepancy became an issue during and after last spring’s record-breaking Mississippi River flood. The floodwaters, which reached levels unseen since 1927, inundated the Mississippi Delta, destroying homes, farm land, wildlife sanctuaries, businesses, and ran up a damage tab in Mississippi alone that early estimates show will reach into the billions.

Ross said the conflict between Mississippi law and FEMA’s rules pertaining to hunting and fishing camps only added to the confusion.

“The law was not as clear as I would have liked,” Ross said in an interview with the Mississippi Business Journal. “It needs to be clarified. Cities and counties were kind of caught in the middle.”

Hood said in a press release issued by his office that if Congress fails to clarify the difference in state law and FEMA rules, he would at least consider turning to the court system for a remedy.

Until then, Ross said counties trying to make sense of which rules to follow will have to sit and wait.

“We’d be happy to offer any assistance we could, and we could certainly offer some real-world examples of how this is a problem, but the policy-making side of it would have to happen at the state level,” he said.

FEMA officials did not respond to request for comment by the time the MBJ went to press last week.

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