Flood Insurance

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Federal financial institution regulators recently issued a joint final rule to implement provisions of the Biggert-Waters Flood Insurance Reform Act of 2012 (the “Act”) that require regulated financial institutions to accept private flood insurance policies. The regulators are the Farm Credit Administration, Federal Deposit Insurance Corporation, Federal Reserve Board, National Credit Union Administration, and Comptroller of the Currency. The final rule takes effect on July 1, 2019.

To qualify as private flood insurance under the final rule, a policy must be issued by an insurance company that meets certain conditions, and the policy must provide flood insurance coverage that is at least as broad as the coverage provided under a standard flood insurance policy (SFIP) issued under the National Flood Insurance Program (NFIP) for the same type of property, including when considering deductibles, exclusions, and conditions offered by the insurer. The final rule sets forth specific requirements that a policy must meet to be considered to provide coverage at least as broad as an SFIP.

The final rule requires that a regulated financial institution accept a private flood insurance policy that provides coverage at least as broad as an SFIP in satisfaction of the requirement for flood insurance under the applicable regulator’s flood insurance rules. The final rule allows a financial institution to determine that a private policy provides the necessary coverage if the following statement is included within the policy or as an endorsement to the policy: “This policy meets the definition of private flood insurance contained in 42 U.S.C. 4012a(b)(7) and the corresponding regulation.” A financial institution can simply rely on the statement, without independently assessing the policy. However, the final rule does not require insurance companies to include such a statement in a private policy, and a financial institution cannot reject a private policy simply because the statement is not provided.

The final rule also allows a financial institution to accept a private flood insurance policy that does not provide coverage at least as broad as an SFIP, if the private policy meets a more limited set of requirements, and the financial institution documents in writing its determination that the policy provides sufficient protection of the applicable loan, consistent with general safety and soundness principles.

Additionally, the final rule permits a financial institution to accept a plan issued by a mutual aid society in satisfaction of the requirement for flood insurance under the applicable regulator’s flood insurance rules, subject to conditions. The conditions are that the applicable regulator has determined that the plan qualifies as flood insurance for purposes of the Act, the plan provides specified coverage for the mortgagor and mortgagee as loss payees, and the financial institution documents in writing its determination that the plan provides sufficient protection of the applicable loan, consistent with general safety and soundness principles. For purposes of the final rule, a “mutual aid society” is defined as an organization (1) whose members share a common religious, charitable, educational, or fraternal bond, (2) that covers losses caused by damage to members’ property pursuant to an agreement, including damage caused by flooding, in accordance with this common bond, and (3) that has a demonstrated history of fulfilling the terms of agreements to cover losses to members’ property caused by flooding.

As previously reported, in early December 2018 Congress passed another short-term extension of the National Flood Insurance Program that was scheduled to expire on December 21, 2018. On December 21, the US House of Representatives agreed to a bill adopted by the US Senate in November 2018 to extend the Program until May 31, 2019, and President Trump signed the extension on December 21. Earlier that day, an effort in the House to both extend the Program until May 31, 2018 and make additional changes, failed.

But the drama was not over. Based on the partial government shutdown, the Federal Emergency Management Agency (FEMA) announced on December 27, 2018 that it had sent a message to its industry partners providing guidance to suspend flood insurance sales operations as a result of the lapse of funding. The announcement drew criticism from various parties, and on December 28, 2018 FEMA announced it was rescinding the prior guidance and was resuming the sale of new flood insurance policies and the renewal of expiring policies.

As previously reported, the National Flood Insurance Program was scheduled to expire on November 30, 2018 and Congress extended the Program to December 7, 2018. The US House of Representatives and US Senate have once again voted to temporarily extend the Program, this time until December 21, 2018. Perhaps Congress is hoping that someone will come down the chimney and deliver a long-term, sensible reform of the Program.

With the November 30, 2018 expiration date for the National Flood Insurance Program (Program) looming, industry trade groups sent a letter to Congressional leaders urging Congress to extend the Program.

As we reported previously, the Program was set to expire on July 31, 2018 and Congress voted on that date to extend the Program until November 30, 2018.  Basically Congress kicked the can down the road until after the midterm elections.

As noted by the trade groups in their letter “Congress has yet to pass a long-term extension of the NFIP, as debate continues regarding options for reforming the program. This has already resulted in a series of seven stop-gap extensions and two brief lapses in 2017 and 2018. The NFIP is currently the main source of flood insurance in the United States, and Americans deserve certainty and stability in the flood insurance marketplace to be able to protect their homes and loved ones.”

A long-term, sensible reform of the Program is long overdue.  The continued kicking of the can down the road by Congress through temporary extensions of the Program is not good policy for communities at risk or taxpayers.

On July 31, 2018, the day that the National Flood Insurance Program was set to expire, the United States Senate voted 86 to 12 to reauthorize the program through November 30, 2018.  The action follows an earlier reauthorization of the program through the same date by a 336 to 52 vote in the United States House of Representatives.  President Trump signed the reauthorization, which simply kicks the can down the road to just after the mid-term elections, and falls far short of the more permanent resolution to the flood insurance program sought by the mortgage industry.