Item Attachment. Board of Directors Agenda Item. Consent Agenda Main Agenda Report Board Action Required

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1 Item Attachment Board of Directors Agenda Item Consent Agenda Main Agenda Report Board Action Required Title: Approve new NSPE Position Statement No. XXXX-Levee Certification Agenda Item Number: Issue Statement: Approve a new NSPE Position Statement on Levee Certification. Executive Summary: Recent natural events, particularly Hurricane Katrina, have prompted the Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USACE) to examine the current state of our nation s flood control system. As a result, FEMA has instituted a new requirement that all levees be certified by a professional engineer (PE) in order to be eligible for FEMA accreditation and meet the criteria for a moderate-risk area on a Flood Insurance Rate Map (FIRM). This requirement has placed an unreasonable burden on professional engineers, exposing them to great legal risk. The L&GA Committee appointed a Task Force to propose a solution that would ensure the FEMA levee certification process does not unfairly shift risk to the professional engineers. Nature of Required Action/Recommendation: Approve new NSPE Position Statement No. XXXX on Levee Certification. Attachment: LGA Committee Recommendation #3 Item

2 Item Attachment NSPE Legislative and Government Affairs Committee Recommendation for NSPE Board of Directors Action Winter Meeting Charleston, SC January 11, 2014 NSPE Action Plan Goal #: 4 (Advocacy) Recommendation #3: Approve new NSPE Position Statement No. XXXX-Levee Certification. Background of Recommendation Recent natural events, particularly Hurricane Katrina, have prompted the Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USACE) to examine the current state of our nation s flood control system. As a result, FEMA has instituted a new requirement that all levees be certified by a professional engineer (PE) in order to be eligible for FEMA accreditation and meet the criteria for a moderate-risk area on a Flood Insurance Rate Map (FIRM). This requirement has placed an unreasonable burden on professional engineers, exposing them to great legal risk. The L&GA Committee appointed a Task Force to propose a solution that would ensure the FEMA levee certification process does not unfairly shift risk to the professional engineers. Actual Recommendation for Board Action Approve new NSPE Position Statement No. XXXX. Levee Certification. Estimated Impact on Budget for Year. None NSPE COMMITTEE/TASK FORCE MEMBERS: L&GA Committee: Chair: William Fendley, P.E., F. NSPE Vice Chair: Warren Maddox, P.E., F. NSPE Kelly Cranford, P.E. Jeffrey Elliott, P.E., F.NSPE Robert Green, P.E., F.NSPE Daniel Hanlon, P.E. Douglas Hendrickson, P.E., F. NSPE David Janney, P.E., LEED AP BD+C, CLEP Tamara Johnson, P.E., F.NSPE Keith Lashway, P.E. John J. Martin, P.E., F.NSPE Karen Moran, P.E., F.NSPE Leanne Panduren, P.E., F.NSPE L. Daniel Tanksley, JD, P.E., F.NSPE Robert Thiel, P.E. Lee Alexander, P.E., F.NSPE, F.ASCE Kenneth McGowan, P.E., F.NSPE Chris Richard, P.E., F.NSPE Paul Schmidt, P.E., F.NSPE Christopher Stone, P.E., F.NSPE, F.ASCE, LEED AP D. Scott Wolf, P.E., F.NSPE, PLS

3 NSPE Position Statement No. XXXX Levee Certification ADOPTED: January 2014 LATEST REVISION: None NSPE CONTACT: Legislative and Government Affairs Committee It is the position of the National Society of Professional Engineers (NSPE) that the Federal Emergency Management Agency (FEMA) levee certification program places an unreasonable burden on professional engineers, exposing them to great legal risk. FEMA should revise its certification requirement to allocate the responsibility and liability to the parties in the best position to assume that responsibility and liability the levee boards, owners, and operators. Recent natural events, particularly Hurricane Katrina, have prompted FEMA and the U.S. Army Corps of Engineers (USACE) to examine the current state of our nation s flood control system. As a result, FEMA has instituted a new requirement that all levees be certified by a professional engineer (PE) in order to be eligible for FEMA accreditation and meet the criteria for a moderate-risk area on a Flood Insurance Rate Map (FIRM). USACE estimates that there are 15,000 miles of levees built under its flood control program. There are unknown additional miles of levees erected and maintained by states, localities, and private businesses. Evaluation of a levee system requires that historical records of the original design standards, construction methods, and maintenance activities be provided for review and analysis. Often, the documents necessary to adequately perform FEMA s certification are not available to the professional engineer asked to provide that certification. Of greatest concern to professional engineers is the professional liability exposure the FEMA certification program places on them. Under the FEMA program, a PE is in many instances

4 being asked to certify levees without the protection of professional liability insurance or other liability protections. Many qualified professional engineers have been advised by their professional liability insurance carriers that they will lose professional liability insurance coverage or have their professional liability insurance premiums substantially increased if their practice includes levee certification under the current FEMA program. Professional liability insurance carriers typically will not cover professional engineering services if those services require the professional engineer to perform services beyond the professional engineer s normal and customary standard of care. Because the U.S. courts have construed professional engineer certifications under the FEMA certification program as a guarantee or warranty of an engineer s work, professional liability insurance carriers are unable to offer affordable professional liability insurance to professional engineers and in many cases are refusing to provide professional liability insurance at all to professional engineers performing work under the FEMA program. As a result, many qualified professional engineers no longer offer services under the FEMA program out of concern that it would leave them and their firms vulnerable to potential lawsuits, burdensome attorneys fees, and related costs. The FEMA levee certification requirement currently shifts all of the legal risk to the professional engineer. However, those benefitting from the certification, such as the levee boards, owners, and operators, and those protected by the levees, are in a far better position to bear the risks than the professional engineer. Not only do those parties have the means to bear such a risk, but they are the ones that have the ability and responsibility to maintain and repair the levee systems to keep those living behind the system protected. These levee boards are typically funded by those whom the levee systems protect. Instead, the current levee certification requirement unfairly shifts risk to the professional engineer.

5 The current FEMA program fails to adequately protect the public. Instead it actually has the potential to endanger the public. Due to the elimination of many qualified PEs from the pool of engineers available for selection because of liability concerns, those willing to perform the services under the FEMA program may not be the most qualified to do the work. Therefore, NSPE urges FEMA to revise its certification requirement to shift the responsibility and liability to the parties in the best position to assume that responsibility and liability the levee boards, owners, and operators. In addition, the language in 44 CFR should be amended to remove all references to the words certify, certification, accreditation, guarantee, warrantee, warranty, and similar words to prevent further misinterpretation by the courts. NSPE also strongly recommends and urges that the USACE expedite the final adoption of its key guidance, Certification of Levee Systems (USACE ETL ), so that all professional engineers can follow a uniform and appropriate standard of care.