Judge tosses suit challenging FEMA flood mapping

EAST ST. LOUIS, Ill. — A federal judge has thrown out as moot a lawsuit three southwestern Illinois counties filed to block the Federal Emergency Management Agency from declaring the region's levees functionally useless, ruling that the agency believes for now the flood barriers are sufficient.

U.S. District Judge J. Phil Gilbert, in a 15-page ruling Monday, noted that FEMA has scrapped a flood-risk remapping technique in place four years ago when it said the 64 miles of Mississippi River levees protecting a swath of land known as American Bottoms no longer would be accredited.

Those who sued FEMA insisted such a decertification by FEMA in new flood-plain maps would onerously saddle thousands of property owners in St. Louis' Illinois suburbs with higher, unaffordable insurance rates, devastate land values and crimp development.

But Gilbert said preliminary flood-plain maps FEMA published in 2009 will never be finalized, noting that the agency "has returned to the drawing board with respect to the American Bottoms area and similar regions across the country." As that plays out, Gilbert wrote, existing maps listing the levees as adequate remain in effect, meaning those suing FEMA "jumped the gun" in pressing legal action without waiting to see how the mapping ultimately shakes out.

Beyond that, Gilbert ruled, the lawsuit was barred by the long-held legal precedent of sovereign immunity that protects the government from such litigation unless such immunity is waived.

While signing off on FEMA's request that the lawsuit be tossed out, Gilbert chastised the agency for what he termed a "Potomac Two-Step" by insisting in court that the levees remain accredited while refusing to put that in writing, retracting its 2007 letters saying the flood barriers would be deemed functionally useless.

"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," Gilbert wrote, emphasizing the point in bold typeface.

The three counties, along with more than a dozen villages and cities, filed suit last November, looking to block FEMA's new flood maps from taking effect as part of the agency's sweeping assessment of whether levees can handle a 100-year flood — that is, an inundation so big that it has only a 1 percent chance of happening any given year. It's FEMA's threshold for classifying an area high-risk or not.

Though none of the southwestern Illinois levees — more than a half century old — has ever failed, the Army Corps of Engineers has believed those river defenses require, by some estimates, hundreds of millions of dollars in repairs to get them up to FEMA standards before the new flood maps come out.

Without repairs, FEMA had said it planned to declare them functionally useless — a downgrade that would force thousands of the region's homeowners with federally backed mortgages to buy flood insurance, even if they've never been swamped.

The lawsuit claimed that FEMA's decision to de-accredit the southwestern Illinois levees relied "on very limited, secret and highly flawed data and analysis" the agency never shared with local governmental leaders and the levee districts, despite their push through Freedom of Information Act requests to get such details.

But in March, FEMA Administrator Craig Fugate told federal lawmakers the agency would hold off on decertifying the levees protecting the area, saying it would stop using a questioned assessment technique and turn to more nuanced methods to measure the protection the levees provide.

Fugate assured lawmakers that the new flood maps would not be completed before a new analysis was completed, buying overseers of the southwestern Illinois levees time to pursue a five-year, $161-million plan to upgrade the barriers from Alton south to Columbia.