FEMA Levee Certifications - CFR Part 65

[GeoPaveTraffic]

I'm doning a reseach project to determine what other consulting companies are doing with respect to the "Certification by Registered Professional Engineer and/or Land Surveyor" as required by FEMA to issue Letter of Map Revision Based on Fill (LOMR-F) to revise a flood map based on construction of a levee. As many of you probably know "certfiy" is a very bad word as far as professional liability insurance carriers are concerned. Using it will generally result in NO insurance coverage for a project. FEMA has attempted to provide cover to the engineer by defining certify, however, we all know that the courts can choose to ignor such things.

My company has performed levee work for many decades, however, the subject has come up as to whether we want to continue performing this work. I'm very interested in what other consulting engineers are doing? Are there concerns about liability exposure doing levee design and having to certify the levee for FEMA?

I also posted this to the stormwater/floodplain forum, but double posted here to increase the number of folks likely to see it.

 

[fattdad]

No clue on a direct answer, but this is the type of thing I'd bring up with my insurance carrier.

f-d

¡papá gordo ain’t no madre flaca!

 

[civilperson]

Dump the insurance, put the premiums in your pocket and Certify whatever your professional judgement warrants. The possible exposure to suits seems minimal if you follow FEMA criteria.

 

[cvg]

unfortunately - catch 22 - agencies which issue contracts to consultants for levee certification require E&O insurance. Therefor you cannot meet the conditions of the contract, therefore you cannot sign it and do the work...

 

[Mazzman]

44 CFR 65.10 requires that a registered engineer "certify the data submitted to support that a given levee system complies with the structural requirements" of the rule.

The definition of certify in 65.2 is not too onerous (in my opinion), but the reluctance to "certify" (regardless of definition) by most A/E firms is related to the potential for third-party lawsuits (i.e. the people behind the levees who sue all involved when the levee overtops). The large expense of a lawsuit is in defending it - not in "winning" or losing.

We (9000 person US/Canada firm) have decided NOT to get in the business of certifying levees. In my discussions with USACE HQ folks in the levee business they say they have found few firms are willing to do it (the number at the time was 2).

 

[civilperson]

Error and omission insurance can be job specific. Let the client know and pay separately the amount of insurance premiums required. Most clients will consider dropping this requirement for insurance.

 

[Floodwalker]

The primary issue for many communities with levees occurs when the levee was not designed or constructed to meet or exceed the requirements for protection required by 44 CFR 65.10. If a company designs and/or constructs a levee to meet or exceed the FEMA protection requirements, businesses and residents accorded some flood protection behind the structure are currently not required to carry flood insurance. Certification only is required to ensure that the structure provides a specified minimum level of protection. If one were discussing a dam instead of a levee (and many levees essentially act as dams) one would have to discuss probable maximum flood (PMF), a much increased level of protection that far exceeds any FEMA flood insurance requirements. For companies certifying levees, it is more important they consider the level of safety for those supposedly protected by this structure than the financial wants of not being required to purchase flood insurance.

I would refer all engineers to the Code of Ethics of the
ASCE, a section of the first canon is excerted here: Engineers shall recognize that the lives, safety, health and welfare of the general public are dependent upon engineering judgments, decisions and practices incorporated into structures, machines, products, processes and devices.

 

[cvg]

"dumping the insurance" is simply not a possibility for this type of work. The contracts require it and the consultants risk management requires it. Frankly, as an engineer being asked to sign and stamp the report submitted to FEMA asking for certification, I would refuse to do this if my employer did not carry a significant amount of E&O insurance. The exposure to potential lawsuits seems extremely high in my opinion. That is the reason that very few firms are willing to do this type of work.