NJ Judge’s Ruling – FEMA Compliant Flood Vent

NJ Judge's Ruling - FEMA Compliant Flood Vent

For years the question “What is a FEMA Compliant Flood Vent?” has been asked.  Many people have different opinions.  FEMA Compliant flood vents can be used on homes to make the house FEMA compliant which can help reduce a homeowner’s flood insurance premiums.   “Is a flood vent FEMA Compliant?” has been asked by home owners, insurance agents, realtors, building inspectors, city code officials, different flood vent companies and many others  for a long time.  Recently a Federal Judge in New Jersey addressed the issue of what makes a flood vent “FEMA Compliant”.  The Honorable Jerome B. Simandle in his opinions wrote:

“In 1968, congress enacted the National Flood Insurance Program (hereinafter, the “NFIP”) as part of the National Flood Insurance Act, 42 U.S.C. § § 4001- 4131 (hereinafter, the “NFIA”), in order to provide previously unavailable flood insurance protection to property owners in flood-prone areas.  More specifically, the NFIA authorizes the Federal Emergency Management Agency (hereinafter, “FEMA”) “to establish and carry out a [unified and subsidized] national flood insurance program” that would allow “interested persons to purchase insurance” against any losses “arising from any flood occurring in the United States.”  42 § 4011(a).  In other words, the NFIA designated FEMA as the administrator of the NFIP Program, and vested it with the authority to develop and promulgate requirements relative to flood plain management criteria.  42 U.S.C § 4014.

As relevant here, in order to qualify for the federally-subsidized flood insurance, the NFIP regulations enacted by FEMA require, for all new construction and substantial improvements, that fully enclose areas below the lowest floor that are ….. subject to flooding …. be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters.

NJ Judge's Ruling - FEMA Compliant Flood Vent

NJ Judge's Ruling - FEMA Compliant Flood Vent

44 C.F.R. § 60.3 (c) (5) (emphasis added).  “In other words, the regulations require that foundational spaces (or, the lower levels of dwellings) have flood vents that permit the automatic entry and exist of water.”  The “designs” for these flood vents must, in turn,

either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria:  A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

44 C.F.R. § 60.3 (c) (5) (emphasis added).  In that way, the relevant NFIP regulations requires, on its face, only a certification of compliance with net area requirements.”

In the past few months Judge Simandle has written opinions in two different federal cases about the FEMA Compliant flood vent issue.  The lawsuits are Smart Vent Products, Inc. v. Crawl Space Door Systems, Inc.  and Smart Vent Products, Inc. v. USA FloodAir Vents, Ltd.  You can read both of Honorable Jerome B. Simandle’s full opinions by clicking on the links.

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