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Understanding the Unique Facets of Flood Insurance: CBRA Zones and Otherwise Protected Areas (OPAs)

Rapid development in coastal areas, on barrier islands, and near habitat-rich wetland areas prompted the Federal government to pass the Coastal Barrier Resources Act of 1982 (CBRA). This was a legislative effort to minimize loss to human life, eliminate wasteful Federal expenditures, and prevent damage to fish, wildlife, and natural resources in protected areas by discouraging further development. Coastal Barrier Resource System (CBRS) units (“System Units") were delineated by Congress, with help from agencies within the Department of the Interior, creating areas of land subject to “passive" Federal protection.

Congress expanded on the CBRS units with the adoption of the Coastal Barrier Improvement Act of 1990 (CBIA). This act added System Units not part of the original act and created additional zones known as “Otherwise Protected Areas" (OPAs).

Otherwise Protected Area (OPA) boundaries generally follow Federal, state, or local park boundaries and include land used for recreation or conservation. However, OPAs are not always restricted to these properties. Congress intentionally incorporated undeveloped land located contiguous to defined park land into OPAs. Individuals and private entities own some of this undeveloped land.

These two acts combine to remove 3.1 million acres of land million CBRS and 1.8 million OPAs) from eligibility for Federal flood protection through the NFIP.

Federal Funds in Protected Areas

Federal spending is strictly limited in CBRS units. Federal monies are available only to fund emergency assistance (not the same as disaster assistance), military activities necessary for national security, exploration for and removal of energy resources and the maintenance of existing Federal navigation channels. Individuals and entities within a CBRS unit cannot receive Federally-backed loans (i.e., VA, FHA, Fannie Mae or Freddie Mac loans) nor is Federal flood insurance available.

Only one restriction on Federal money applies in Otherwise Protected Areas, the ability to purchase Federal flood insurance. Structures located in an OPA cannot purchase flood coverage through the National Flood Insurance Program (NFIP).

A 2002 U.S. Fish and Wildlife Service study estimates that from 1983 through 2010 Federal fund restrictions mandated by these Acts will have resulted in $1.3 billion in savings to taxpayers. Restrictions on Federal spending for roads, wastewater systems, potable water supply, disaster relief, and flood insurance in these restricted areas combine to create this savings.

Grandfather Laws in CBRS and OPAs

Structures existing prior to the adoption of these Acts garner grandfather status and remain eligible for Federal flood coverage provided they were built or substantially improved on or before specified dates and have not suffered substantial damage. Grandfather status is granted:

To any structure in a CBRS unit created by the CBRA of 1982 built or substantially improved on or before October 1, 1983;
To any structure in a CBRS unit added by the CBIA of 1990 built or substantially improved on or before November 1, 1990; or
To any structure in an OPA built or substantially improved on or before November 16, 1991.

Grandfathered buildings suffering substantial damage, from any peril (fire, wind, or flood), or substantially improved after the above dates lose eligibility under the Grandfather Laws and no longer qualify for flood coverage through the NFIP. (Substantial damage and substantial improvement were defined above.)

Passive Federal Protection

Restrictions on the availability of Federal money for loans or Federal flood coverage in these protected areas do not preclude the use of “free market" loans or open market flood insurance. Further, these laws do not disallow building and development in these areas; they simply do not allow the use of Federal dollars to finance, insure, build roads to, or supply potable water to such development.

Owners are allowed to develop their property as they desire (subject to building codes and laws) but without any Federal money. The government did not take away property rights, just the availability of Federal funds, thus the term “Passive Federal Protection."

Determination of Coverage Eligibility

Only the U.S. Fish and Wildlife Service can officially determine if a property is located in a CBRS unit or an OPA. Although these zones are indicated on applicable Flood Insurance Rate Maps (FIRMs), boundary lines on older FIRMs are only approximations and can be off by as much as 100 yards (affecting as many as three houses). No local surveyor, building inspector, or other town official has the authority to make an official determination.

Standard flood insurance policies require that if any part of a structure is in a Special Flood Hazard Area (SFHA), the entire building must be rated in the higher risk zone as per the prior discussion. However, this rule does not necessarily apply in CBRS units or OPAs. If a building is dissected by a CBRS or OPA boundary line, provisions in the law may allow the property to remain eligible for Federal flood coverage. Decisions are made on a case-by-case basis depending on the specific details and history of the property in question.

Additions made to a structure after an eligibility ruling has been made can be problematic. Expansion on the seaward side of the dissecting boundary line could jeopardize the structure's continued eligibility. However, additions on the leeward side should not result in any coverage issues (provided there is no change in the reference level).

Locations of CBRA Zones and OPAs

Twenty-one states, Puerto Rico and the Virgin Islands are home to CBRS units or OPAs. States containing these units include: Alabama, Connecticut, Delaware, Florida, Georgia, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Jersey, New York, North Carolina Ohio, Rhode Island, South Carolina, Texas, Virginia, and Wisconsin.

US Fish & Wildlife provides an online tool for mapping/locating properties in a CBRA zone: https://www.fws.gov/cbra/maps/Mapper.html.

Flood Series

This is one of a series of flood articles discussing and detailing the unique facets of the NFIP flood program. To continue researching the unique facets of the NFIP, visit any or all the links provided:

Read the entire series here.

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First Published: August 23, 2021