PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COLUMBIA VENTURE LLC,
Plaintiff-Appellee,
and
HEATHWOOD HALL EPISCOPAL
SCHOOL,
Intervenor/Plaintiff-Appellee,
v.
SOUTH CAROLINA WILDLIFE No. 05-2398
FEDERATION; DR. JOHN GREGO; DR.
DANIEL TUFFORD; RIVERLAND PARK
NEIGHBORHOOD ASSOCIATION,
Intervenors/Defendants-Appellants,
and
FEDERAL EMERGENCY MANAGEMENT
AGENCY,
Defendant.
2 COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE
COLUMBIA VENTURE LLC,
Plaintiff-Appellee,
and
HEATHWOOD HALL EPISCOPAL
SCHOOL,
Intervenor/Plaintiff-Appellee,
v.
FEDERAL EMERGENCY MANAGEMENT No. 06-1072
AGENCY,
Defendant-Appellant,
and
SOUTH CAROLINA WILDLIFE
FEDERATION; DR. JOHN GREGO; DR.
DANIEL TUFFORD; RIVERLAND PARK
NEIGHBORHOOD ASSOCIATION,
Intervenors/Defendants.
COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE 3
COLUMBIA VENTURE LLC,
Plaintiff-Appellee,
and
HEATHWOOD HALL EPISCOPAL
SCHOOL,
Intervenor/Plaintiff-Appellee,
v.
FEDERAL EMERGENCY MANAGEMENT No. 08-1033
AGENCY,
Defendant-Appellant,
and
SOUTH CAROLINA WILDLIFE
FEDERATION; DR. JOHN GREGO; DR.
DANIEL TUFFORD; RIVERLAND PARK
NEIGHBORHOOD ASSOCIATION,
Intervenors/Defendants.
4 COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE
COLUMBIA VENTURE LLC,
Plaintiff-Appellee,
and
HEATHWOOD HALL EPISCOPAL
SCHOOL,
Intervenor/Plaintiff-Appellee,
v.
FEDERAL EMERGENCY MANAGEMENT No. 08-1034
AGENCY,
Defendant,
and
SOUTH CAROLINA WILDLIFE
FEDERATION; DR. JOHN GREGO; DR.
DANIEL TUFFORD; RIVERLAND PARK
NEIGHBORHOOD ASSOCIATION,
Intervenors/Defendants-Appellants.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Margaret B. Seymour, District Judge.
(3:01-cv-04100-MBS)
Argued: January 28, 2009
Decided: April 3, 2009
Before WILLIAMS, Chief Judge, and MOTZ and SHEDD,
Circuit Judges.
Vacated and remanded by published per curiam opinion.
COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE 5
COUNSEL
ARGUED: Sharon Swingle, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C.; James Blanding
Holman, SOUTHERN ENVIRONMENTAL LAW CENTER,
Charleston, South Carolina, for Federal Emergency Manage-
ment Agency, South Carolina Wildlife Federation, John
Grego, Daniel Tufford, and Riverland Park Neighborhood
Assocation. Manton McCutchen Grier, HAYNSWORTH,
SINKLER & BOYD, P.A., Columbia, South Carolina, for
Columbia Venture LLC and Heathwood Hall Episcopal
School. ON BRIEF: Jordan S. Fried, Associate Chief Coun-
sel for Litigation, Lynda K. Pilgrim, Senior Trial Attorney,
FEDERAL EMERGENCY MANAGEMENT AGENCY,
Washington, D.C.; Gregory G. Katsas, Acting Assistant
Attorney General, Kevin F. McDonald, Acting United States
Attorney, Michael Jay Singer, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Federal Emer-
gency Management Agency. J. Preston Strom, Jr., STROM
LAW FIRM, L.L.C., Columbia, South Carolina, Frank R.
Ellerbe III, Robinson, McFadden & Moore, P.C., Columbia,
South Carolina, for Heathwood Hall Episcopal School; Sarah
Michaels Montgomery, William C. Boyd, Elizabeth H. Black,
HAYNSWORTH, SINKLER & BOYD, P.A., Columbia,
South Carolina, for Columbia Venture LLC.
OPINION
PER CURIAM:
The Federal Emergency Management Agency ("FEMA"),
the South Carolina Wildlife Federation, Dr. John Grego, Dr.
Daniel Tufford, and the Riverland Park Neighborhood Asso-
ciation ("Defendants") jointly appeal the district court’s order
vacating the 2001 base flood elevation determinations
adopted by FEMA for Richland County, South Carolina. The
6 COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE
district court vacated these determinations because of
FEMA’s failure to timely publish notice in the Federal Regis-
ter as required by 42 U.S.C. § 4104(a). Because Columbia
Venture did not establish that it was prejudiced by this failure
to publish, we reverse the district court’s Order of Vacatur
and remand for further proceedings.1
I
A.
FEMA is responsible for implementing the National Flood
Insurance Program ("NFIP"), 42 U.S.C. § 4001(c). To that
end, FEMA develops federal criteria aimed at inducing state
and local governments to "guide the development of proposed
construction away from locations which are threatened by
flood hazards." 42 U.S.C. § 4102(c)(2). FEMA makes various
scientific and technical determinations to help identify flood
hazards for a given area. One such determination, the "base
flood elevation," measures the potential water level height
during a base flood.2 FEMA uses these base flood elevation
determinations to prepare flood insurance rate maps ("flood
maps") for local communities participating in NFIP. These
maps, among other things, delineate the minimum regulatory
floodway that a community must adopt to comply with NFIP.3
1
FEMA also appeals the district court’s November 2, 2007, text order
clarifying that the Order of Vacatur invalidated all of FEMA’s 2001 base
flood elevation determinations, including the floodway determinations, for
the Congaree River in Richland County. As a result of our analysis herein,
we reverse that order as well.
2
A "base flood" is the flood "having a one percent chance of being
equalled or exceeded in any given year." 44 C.F.R. § 59.1. It is also
referred to as the "100-year flood."
3
The "regulatory floodway" is the area of the floodplain that can "carry
the waters of the base flood, without increasing the water surface elevation
of that flood more than one foot at any point." 44 C.F.R. § 60.3(d)(2).
FEMA requires local communities that participate in NFIP to limit con-
struction within the regulatory floodway. 44 C.F.R. § 60.3(d)(3).
COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE 7
In establishing base flood elevations for a local community,
FEMA follows a specified set of procedures. It must "first
propose such determinations by publication for comment in
the Federal Register, by direct notification to the chief execu-
tive officer of the community, and by publication in a promi-
nent local newspaper." 42 U.S.C. § 4104(a). The newspaper
publication must occur at least twice during the 10-day period
following notification to the local government, and the second
newspaper publication triggers a 90-day period during which
"any owner or lessee of real property within the community
who believes his property rights to be adversely affected [by
the proposed determinations] . . . may appeal such determina-
tion to the local government." Id. § 4104(b). The local gov-
ernment reviews any appeals and decides whether to appeal
the determinations to FEMA in the name of the local commu-
nity. Id. § 4104(c). If the community chooses not to appeal,
FEMA instead consolidates and reviews the individual
appeals filed with the community. Id. § 4104(d).
The sole grounds for an appeal under § 4104(b) is a claim
that the elevations are scientifically or technically incorrect.
Id. FEMA must "review and take fully into account" any sub-
mitted data that tends to "negate or contradict the information
upon which [the] proposed determination is based." Id.
§ 4104(e). Once FEMA resolves the administrative appeal,
any appellant aggrieved by its final determination has 60 days
to appeal to the federal district court where the community is
located.
B.
In 1998, FEMA began the process of redrawing the flood
maps for the portion of the Congaree River located in Rich-
land County, South Carolina. Columbia Venture planned to
build a research development park on property along the Con-
garee River. Because local ordinances sharply restricted con-
struction within FEMA’s regulatory floodway, the park’s
success largely depended on FEMA adopting a floodway that
8 COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE
did not include Columbia Venture’s land. In August 1999,
FEMA issued its proposed base flood elevation determina-
tions for this section of Richland County. FEMA held a meet-
ing on August 19, 1999, to present these determinations to the
public. Pursuant to § 4104, FEMA enclosed its determinations
in a letter to Richland County on September 1, 1999, and gave
public notification in The State, a "prominent local newspa-
per," on September 7 and 14, 1999. Critical to this case,
although the § 4104(b) 90-day appeals period began on Sep-
tember 14 and ended on December 13, 1999, FEMA had not
yet published its August 1999 proposed determinations in the
Federal Register.
The August 1999 proposed determinations did not impli-
cate or affect the portion of Columbia Venture’s land upon
which the development park was to be built. Therefore,
although other parties lodged an appeal with FEMA during
the 90-day period, Columbia Venture did not. Nevertheless,
Columbia Venture submitted technical information to FEMA
in support of the August 1999 proposed determinations. In
addition, FEMA individually contacted Lockwood Greene, an
engineering firm working for Columbia Venture, and offered
to meet and discuss the proposed flood map, "the data and
analysis that you have provided, and any additional data that
you may have." J.A. 2219. Lockwood Greene made a formal
presentation to FEMA in April 2000, and Columbia Venture
contacted FEMA officials several times thereafter. These con-
tacts culminated in a letter from Columbia Venture to FEMA
stating that "your agency has provided more than adequate
opportunities for all interested parties to submit pertinent
information" and urging FEMA to "complete the mapping
process as soon as possible and issue the final letter of deter-
mination." J.A. 2177.
On September 26, 2000, FEMA issued revised flood insur-
ance studies and rate maps which altered and superceded the
August 1999 proposed determinations. FEMA notified
Columbia Venture of these September 2000 revised determi-
COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE 9
nations, as Columbia Venture’s land was within the new
floodway. FEMA provided an initial 30-day period for com-
ment and subsequently granted Columbia Venture’s request
for additional time. Columbia Venture took advantage of this
opportunity, submitting extensive additional technical infor-
mation for FEMA’s consideration and attending two meetings
to discuss the September 2000 determinations. The extended
deadline for comment expired on February 15, 2001, more
than 140 days after Columbia Venture and other parties
received notification of the revisions.
On February 16, 2001, FEMA first published notice in the
Federal Register as required by § 4104(a). In that publication,
FEMA referenced the August 1999 proposed base flood ele-
vation determinations, even though those determinations had
been superceded by the September 2000 revised determina-
tions. The February 2001 Federal Register publication also
stated that the comment period would run for 90 days from
the date of the second publication in a prominent local news-
paper. Because FEMA’s second publication in The State
occurred on September 14, 1999, this period had expired
more than a year before the Federal Register publication.4
FEMA ultimately issued a final determination in August
2001, which adopted the September 2000 revised determina-
tions and therefore adopted a floodway encompassing Colum-
bia Venture’s land.
Columbia Venture challenged FEMA’s August 2001 deci-
sion in federal district court, disputing the technical and scien-
tific basis for the base flood elevation determinations pursuant
to § 4104(g). In 2005, Columbia Venture first learned of
FEMA’s defective publication. It filed a motion to vacate the
4
Although this series of events is somewhat confusing, the Federal Reg-
ister publication provided the name, physical address, email address, and
phone number of a FEMA official to contact for further information. J.A.
622. There is no evidence in the record that anyone attempted to contact
FEMA with questions regarding the timing of the comment period.
10 COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE
final base flood elevation determinations for the Congaree
River, arguing that FEMA’s failure to comply with § 4104(a)
rendered those determinations null and void. The district court
granted the motion in favor of Columbia Venture. Defendants
timely appealed.
II
FEMA does not dispute that it failed to timely publish
notice of its August 1999 proposed determinations in the Fed-
eral Register in violation of § 4104(a). However, a failure to
timely publish does not per se result in nullification of the
agency action. Instead, § 4104(g) incorporates chapter 7 of
Title 5 of the Administrative Procedures Act, which provides
that "due account shall be taken of the rule of prejudicial
error." 5 U.S.C. § 706. Therefore, "the party who claims defi-
cient notice bears the burden of proving that any such defi-
ciency was prejudicial," and if that party fails to carry its
burden, the agency’s decision must be upheld. Friends of Iwo
Jima v. National Capital Planning Comm’n, 176 F.3d 768,
774 (4th Cir. 1999).
In Friends of Iwo Jima, we upheld an agency action despite
the agency’s failure to comply with a requirement to publish
timely notice of relevant meetings in the Federal Register
because the procedural error was harmless. Id. at 773. The
aggrieved party, Friends of Iwo Jima, failed to show that "the
outcome of the process would have differed in the slightest
had notice been at its meticulous best." Id. at 774. Thus, we
held that Friends of Iwo Jima had not shown prejudice;
instead, its position "was considered and simply did not pre-
vail." Id. at 774.
The district court applied Friends of Iwo Jima and con-
cluded that Columbia Venture established prejudice because
it "was deprived of the opportunity to elicit support from the
public at-large." J.A. 747. Defendants contend that this was a
misapplication of Friends of Iwo Jima, and we agree. Friends
COLUMBIA VENTURE v. SOUTH CAROLINA WILDLIFE 11
of Iwo Jima requires the aggrieved party to show prejudice
with respect to its own arguments and claims. Accordingly,
we found that Friends of Iwo Jima did not show prejudice
because the agency’s discussion centered around the "identi-
cal substantive claims Friends of Iwo Jima makes here," and
because "the position of Friends of Iwo Jima was the main
focus of each stage in the approval process." Friends of Iwo
Jima, 176 F.3d at 774.
Despite Columbia Venture’s attempts to distinguish
Friends of Iwo Jima, we find that it controls. Columbia Ven-
ture has not shown that it suffered prejudice as a result of
FEMA’s defective publication. It was deeply involved in the
administrative process from the beginning, received actual
knowledge of each development, had ample opportunity to be
heard, and submitted voluminous data challenging the techni-
cal and scientific underpinnings of FEMA’s conclusions. It
also participated in the initial public meeting in August 1999
and held multiple private meetings with FEMA decision-
makers along the way.5 As in Friends of Iwo Jima, because
its position "was considered and simply did not prevail,"
Columbia Venture was not prejudiced. Friends of Iwo Jima,
176 F.3d at 774.
III
Because FEMA’s failure to comply with § 4104(a) did not
prejudice Columbia Venture, we reverse the district court’s
Order of Vacatur and remand for further proceedings.6
VACATED AND REMANDED
5
To the extent that there is a significant distinction between this case
and Friends of Iwo Jima, that distinction cuts against Columbia Venture.
Unlike Friends of Iwo Jima, who "attended none of the meetings and sub-
mitted no comments," Friends of Iwo Jima, 176 F.3d at 774, Columbia
Venture was intimately involved in the administrative process in this case.
6
In light of our decision released today in the companion case, In re
Bees v. Columbia Venture, 06-1071, we find that reassignment to a differ-
ent judge is appropriate on remand. See United States v. Lentz, 383 F.3d
191, 221 (4th Cir. 2004)(reassigning case to a different judge on remand
to minimize "even a suspicion of partiality").