Proposed Rule2023-21101
Updates to Floodplain Management and Protection of Wetlands Regulations To Implement the Federal Flood Risk Management Standard
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Published
October 2, 2023
Issuing agencies
Homeland Security DepartmentFederal Emergency Management Agency
Abstract
The Federal Emergency Management Agency (FEMA) proposes to amend its regulations to implement the Federal Flood Risk Management Standard (FFRMS) and update the agency's 8-step decision-making process floodplain reviews. FEMA also proposes a supplementary policy that would further clarify how FEMA would apply the FFRMS. The proposed rule would change how FEMA defines a floodplain with respect to certain actions, and FEMA would use natural systems, ecosystem process, and nature-based approaches, where possible, when developing alternatives to locating the proposed action in the floodplain.
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[Federal Register Volume 88, Number 189 (Monday, October 2, 2023)]
[Proposed Rules]
[Pages 67870-67928]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21101]
[[Page 67869]]
Vol. 88
Monday,
No. 189
October 2, 2023
Part II
Department of Homeland Security
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Federal Emergency Management Agency
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44 CFR Part 9
Updates to Floodplain Management and Protection of Wetlands Regulations
To Implement the Federal Flood Risk Management Standard; Proposed Rule
Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 /
Proposed Rules
[[Page 67870]]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 9
[Docket ID: FEMA-2023-0026]
RIN 1660-AB12
Updates to Floodplain Management and Protection of Wetlands
Regulations To Implement the Federal Flood Risk Management Standard
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Emergency Management Agency (FEMA) proposes to
amend its regulations to implement the Federal Flood Risk Management
Standard (FFRMS) and update the agency's 8-step decision-making process
floodplain reviews. FEMA also proposes a supplementary policy that
would further clarify how FEMA would apply the FFRMS. The proposed rule
would change how FEMA defines a floodplain with respect to certain
actions, and FEMA would use natural systems, ecosystem process, and
nature-based approaches, where possible, when developing alternatives
to locating the proposed action in the floodplain.
DATES: Comments must be received no later than December 1, 2023.
ADDRESSES: You may submit comments, identified by Docket ID: FEMA-2023-
0026, via the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Portia Ross, Policy and Integration
Division Director, Office of Environmental Planning and Historic
Preservation, Resilience, DHS/FEMA, 400 C Street SW, Suite 313,
Washington, DC 20472-3020. Phone: (202) 709-0677; Email: <a href="/cdn-cgi/l/email-protection#ddbbb8b0bcf0afb8baa8b1bca9b4b2b3ae9dbbb8b0bcf3b9b5aef3bab2ab"><span class="__cf_email__" data-cfemail="87e1e2eae6aaf5e2e0f2ebe6f3eee8e9f4c7e1e2eae6a9e3eff4a9e0e8f1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
III. Factual and Legal Background
A. Executive Order 11988, ``Floodplain Management''
B. Statutory Authority To Require the FFRMS Under FEMA Grant
Programs
C. 44 CFR Part 9, ``Floodplain Management and Protection of
Wetlands''
D. Reevaluation of the 1 Percent Chance or 100-Year Flood
Standard
E. Executive Order 13690, the Federal Flood Risk Management
Standard (FFRMS) and Subsequent Amendments to Executive Order 11988,
and Revisions to the 1978 Guidelines
F. Substantive Components of the FFRMS
G. FEMA's Implementation of the FFRMS and the Revised Guidelines
IV. Discussion of the Proposed Rule
A. Authority Citation
B. Section 9.1--Purpose of Part
C. Section 9.2--Policy
D. Section 9.3--Severability
E. Section 9.4--Definitions
F. Section 9.5--Scope
G. Section 9.6--Decision-Making Process
H. Section 9.7--Determination of Proposed Action's Location
I. Section 9.8--Public Notice Requirements
J. Section 9.9--Analysis and Reevaluation of Practicable
Alternatives
K. Section 9.10--Identify Impacts of Proposed Actions
L. Section 9.11--Mitigation
M. Section 9.12--Final Public Notice
N. Section 9.13--Particular Types of Temporary Housing
O. Section 9.14--Disposal of Agency Property
P. Section 9.16--Guidance for Applicants
Q. Section 9.17--Instructions to Applicants
R. Section 9.18--Responsibilities
V. Comments Received Associated With Part 9 Revisions
VI. Regulatory Analyses
A. Executive Order 12866, Regulatory Planning and Review &
Executive Order 13563, Improving Regulation and Regulatory Review
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. National Environmental Policy Act (NEPA) of 1969
E. Paperwork Reduction Act (PRA) of 1995
F. Privacy Act
G. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13132, Federalism
I. Executive Order 12898, Environmental Justice
J. Executive Order 12630, Taking of Private Property
K. Executive Order 12988, Civil Justice Reform
L. Executive Order 13045, Protection of Children From
Environmental Health Risks and Safety Risks
M. Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities, OMB
Circular A-119
Table of Abbreviations
0.2PFA--0.2 Percent Annual Chance Flood Approach
ABA--Architectural Barriers Act
ADA--Americans with Disabilities Act
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
CISA--Climate-Informed Science Approach
CRS--Community Rating System
EA--Environmental Assessment
EIS--Environmental Impact Statement
E.O.--Executive Order
FBFM--Flood Boundary Floodway Map
FEMA--Federal Emergency Management Agency
FFRMS--Federal Flood Risk Management Standard
FHBM--Flood Hazard Boundary Map
FIRM--Flood Insurance Rate Map
FIS--Flood Insurance Study
FMA--Flood Mitigation Assistance
FVA--Freeboard Value Approach
GPD--Grant Programs Directorate
HMA--Hazard Mitigation Assistance
HUD--Department of Housing and Urban Development
IA--Individual Assistance
IRFA--Initial Regulatory Flexibility Analysis
NEPA--National Environmental Policy Act of 1969
NFIA--National Flood Insurance Act, as amended
NFIP--National Flood Insurance Program
NOAA--National Oceanic and Atmospheric Administration
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PA--Public Assistance
PDM--Pre-Disaster Mitigation
PHC--Permanent Housing Construction
PIA--Privacy Impact Assessment
PRA--Paperwork Reduction Act of 1995
PV--Present Value
RCP--Representative Concentration Pathway
RFA--Regulatory Flexibility Act
RIA--Regulatory Impact Analysis
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
SFHA--Special Flood Hazard Area
SLR--Sea Level Rise
SORN--System of Records Notice
Stafford Act--Robert T. Stafford Disaster Relief and Emergency
Assistance Act, as amended
THU--Temporary Housing Unit
USGS--United States Geological Survey
WRC--Water Resources Council
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting comments and related materials. We will consider all
comments and material received during the comment period.
If you submit a comment, include the Docket ID FEMA-2023-0026,
indicate the specific section of this document to which each comment
applies, and give the reason for each comment. All submissions may be
posted, without change, to the Federal e-Rulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. For
more about privacy and the docket, visit <a href="https://www.regulations.gov/document?D=DHS-2018-0029-0001">https://www.regulations.gov/document?D=DHS-2018-0029-0001</a>.
Viewing comments and documents: For access to the docket to read
background documents or comments received, go to the Federal e-
Rulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
[[Page 67871]]
II. Executive Summary
On January 30, 2015, the President issued Executive Order 13690,
``Establishing a Federal Flood Risk Management Standard (FFRMS) and a
Process for Further Soliciting and Considering Stakeholder Input.'' \1\
Executive Order 13690 amended Executive Order 11988 and established the
FFRMS. The FFRMS is a flood resilience standard that is required for
``Federally funded projects'' and provides a flexible framework to
increase resilience against flooding and help preserve the natural
values of floodplains and wetlands.
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\1\ 80 FR 6425, Feb. 4, 2015.
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On August 22, 2016, FEMA published a Notice of Proposed Rulemaking
(NPRM) entitled ``Updates to Floodplain Management and Protection of
Wetlands Regulations to Implement Executive Order 13690 and the Federal
Flood Risk Management Standard'' in the Federal Register (81 FR 57402).
This NPRM would have revised FEMA's regulations on ``Floodplain
Management and Protection of Wetlands'' to implement Executive Order
13690. FEMA also proposed a supplementary policy entitled ``FEMA
Policy: Guidance for Implementing the Federal Flood Risk Management
Standard (FFRMS)'' (FEMA Policy 078-3), which would have further
clarified how FEMA would apply the FFRMS. The notice of availability
and request for comments for the supplementary policy also published in
the August 22, 2016 Federal Register at 81 FR 56558. On September 20,
2016, FEMA published a notice of data availability regarding a draft
report, the 2016 Evaluation of the Benefits of Freeboard for Public and
Nonresidential Buildings in Coastal Areas, which had been added to the
docket for the proposed rule (81 FR 64403).
On August 15, 2017, the President issued Executive Order 13807
(``Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure Projects'') which
revoked Executive Order 13690. See 82 FR 40463, Aug. 24, 2017.
Accordingly, in light of the revocation of Executive Order 13690, FEMA
withdrew the August 22, 2016 NPRM and supplementary policy (83 FR
9473). On May 20, 2021, the President issued Executive Order 14030
(``Climate-Related Financial Risk'') \2\ reinstating Executive Order
13690, thereby reestablishing the FFRMS. Accordingly, FEMA is proposing
an updated revision to its regulations and an updated supplementary
policy to implement the FFRMS.
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\2\ 86 FR 27967 (May 25, 2021).
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FEMA is proposing to amend 44 CFR part 9, ``Floodplain Management
and Protection of Wetlands,'' and issue a supplementary policy to
implement the FFRMS and update the agency's 8-step process. As
mentioned above, the FFRMS is a flood resilience standard that is
required for ``Federally funded projects'' and provides a flexible
framework to increase resilience against flooding and help preserve the
natural values of floodplains and wetlands. A floodplain is any land
area that is subject to flooding and refers to geographic features with
undefined boundaries. 44 CFR part 9 describes the 8-step process FEMA
uses to determine whether a proposed action would be located within or
affect a floodplain, and if so, whether and how to continue with or
modify the proposed action. Executive Order 11988, as amended,\3\ and
the FFRMS changed the Executive Branch-wide guidance for defining the
``floodplain'' with respect to ``Federally funded projects'' (i.e.,
actions involving the use of Federal funds for new construction,
substantial improvement, or to address substantial damage to a
structure or facility). The revised definitions allow for consideration
of both current and future flood risks in defining the floodplain to
minimize the impact of floods on human health, safety, and welfare and
reduce the risk of flood loss. For actions subject to the FFRMS, FEMA
proposes to use the updated definition of ``floodplain'' contained in
the Guidelines for Implementing Executive Order 11988, Floodplain
Management, and Executive Order 13690, Establishing a Federal Flood
Risk Management Standard and a Process for Further Soliciting and
Considering Stakeholder Input (Revised Guidelines).\4\ As discussed
further below, the FFRMS allows the agency to define ``floodplain''
using any of three approaches or a fourth approach resulting from any
other method in an update to the FFRMS. In many cases, each of these
approaches would result in a larger floodplain and a requirement to
design projects such that they are resilient to a higher vertical
elevation. For actions that do not meet the definition of an action
subject to the FFRMS, FEMA would continue to use the historical
definition of floodplain with minor clarifying revisions to help
stakeholders better understand the terminology. Regardless of whether
the action is subject to FFRMS, FEMA will follow the Revised Guidelines
\5\ to determine whether an action is in the floodplain. Finally, the
proposed rule would require the use, where possible, of natural
systems, ecosystem processes, and nature-based approaches in the
development of alternatives for all actions proposed in a floodplain.
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\3\ Executive Order 13690 amended Executive Order 11988 in 2015
and was revoked in 2017 by Executive Order 13807. Executive Order
13690 was reinstated in 2021 by Executive Order 14030. See 80 FR
64008 (Oct. 22, 2015), 82 FR 40463 (Aug. 24, 2017), and 86 FR 27967
(May 25, 2021).
\4\ 80 FR 64008 (Oct. 22, 2015); <a href="https://www.regulations.gov/document/FEMA-2015-0006-0358">https://www.regulations.gov/document/FEMA-2015-0006-0358</a>. (Last accessed July 12, 2023).
\5\ Id.
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FEMA believes that this rule is an important step toward mitigating
future flood risk, and that such mitigation will ultimately benefit
communities by allowing them to recover from future disasters more
efficiently and effectively. The United States is experiencing
increased flooding and flood risk from climate change.\6\ The full
extent of future changes in flood risk has not yet been estimated
across the full inventory of Federal, State, local, Tribal, and
territorial properties. However, in a survey of Federal properties
alone, those assessments that have been completed identified over
40,000 individual Federal buildings and structures with a combined
replacement cost of $81 billion located in the current 100-year
floodplain and approximately 160,000 structures with a total
replacement cost of $493 billion located in the current 500 year
floodplain.\7\ Approximately 10,250 individual Federal buildings and
structures were identified in coastal areas with a combined replacement
cost of $32.3 billion that would be severely impacted by an eight-feet
sea-level rise scenario and over 12,195 individual Federal buildings
and structures with a combined replacement cost of over $43.7 billion
under a ten-foot ``worst case'' sea level rise scenario.\8\ This
proposed rule would ensure that actions subject to the FFRMS are
designed to be resilient to both current and future flood risks to
minimize the impact of floods on human health, safety, and welfare
[[Page 67872]]
and to protect Federal investments by reducing the risk of flood loss.
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\6\ As a result of climate change, flood events are on the rise.
Climate change is increasing flood risk through (1) more ``extreme''
rainfall events,'' caused by a warmer atmosphere holding more water
vapor and changes in regional precipitation patterns; and (2) sea-
level rise. See Rob Bailey, Claudio Saffioti, and Sumer Drall, Sunk
Costs: The Socioeconomic Impacts of Flooding 3 and 8, Marsh McLennan
(2021).
\7\ Federal Budget Exposure to Climate Risk. OMB Assessment
found <a href="https://www.whitehouse.gov/wp-content/uploads/2022/04/ap_21_climate_risk_fy2023.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/04/ap_21_climate_risk_fy2023.pdf</a> (last accessed July 12, 2023).
\8\ Id.
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FEMA estimated the total impacts of the proposed rule by analyzing
the impact of the FVA, 0.2PFA and CISA for FEMA's Public Assistance
(PA), Individual Assistance (IA), and Hazard Mitigation Assistance
(HMA) grant programs by examining the number of projects that would be
subject to the proposed requirements in the first 10 years after the
rule's publication.\9\ FEMA's analysis focused on the costs, benefits,
and transfer payments (i.e., impacts on FEMA grants), that would result
over a 50-year period from applying the requirements of the proposed
rule to those projects, for a total period of analysis spanning 60
years. Tables 1 and 2 show the total impacts of this proposed rule
under the three approaches for each of the affected programs.
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\9\ FEMA used an average of the number of affected projects
during the prior 10-year period to estimate the average annual
impacts of the future 10-year period.
Table 1--Summary of Costs, Transfers and Benefits by Approach and Program for Affected Projects in Years 1-10
[Low estimate, 2021$]
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3% Discount rate 7% Discount rate
Costs * Undiscounted -----------------------------------------------------------------
Present value Annualized Present value Annualized
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CISA Total (primary) (+5-ft).. $138,393,786 $118,052,707 $4,265,594 $97,202,003 $6,923,623
PA........................ 102,794,460 87,685,759 3,168,346 72,198,527 5,142,645
IA........................ 1,421,690 1,212,730 43,820 998,537 71,125
HMA....................... 48,908,310 41,719,781 1,507,459 34,351,150 2,446,806
FVA Total..................... 61,994,588 52,882,642 1,910,806 43,542,402 3,101,492
0.2PFA Total.................. 53,397,625 45,549,257 1,645,829 37,504,256 2,671,399
FEMA Admin.................... 3,741,680 3,267,150 118,052 2,776,613 197,776
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Not Quantified................ Not Estimated: Increased resiliency standard for approximately 20,961 facility
projects over 10 years, Additional costs for Adding Requirements to Buildings
with Basements, Diversion of Projects Out of the Floodplain, Lifecycle
maintenance costs for floodproofing, and Project Delays and Forgone Projects.
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Transfer Payments from FEMA to Grant Recipients *
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CISA Total (primary) (+5-ft).. 109,216,359 93,163,768 3,366,283 76,709,000 5,463,923
PA........................ 82,955,130 70,762,410 2,556,855 58,264,212 4,150,115
IA........................ 1,421,690 1,212,730 43,820 998,537 71,125
HMA....................... 36,681,233 31,289,834 1,130,594 25,763,363 1,835,104
FVA Total..................... 48,898,424 41,711,348 1,507,154 34,344,206 2,446,311
0.2PFA Total.................. 41,973,888 35,804,576 1,293,725 29,480,702 2,099,888
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Benefits *
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PA (CISA, primary) (+1-ft).... 55,180,000 47,069,660 1,700,766 38,756,122 2,760,569
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Not Quantified................ Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure
projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives
Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of
Critical Facilities, Reduction of Personal and Community Impacts.
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* FEMA focused its analysis on the projects impacted in the first 10 years after the rule's publication. FEMA
considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a
50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year
period because that is when the initial investment to elevate or floodproof them to meet the proposed
requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the
benefits of the proposed rule are realized over the 50-year useful life of the affected structures.
Table 2--Summary of 60-Year Costs, Transfers and Benefits by Approach and Program for Affected Projects in Years
1-10
[High estimate, 2021$]
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3% Discount rate 7% Discount rate
Costs * Undiscounted -----------------------------------------------------------------
Present value Annualized Present value Annualized
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CISA Total (primary) (+5-ft).. $151,319,537 $129,078,635 $4,663,993 $106,280,511 $7,570,278
PA........................ 120,722,020 102,978,331 3,720,912 84,790,095 6,039,533
IA........................ 1,421,690 1,212,730 43,820 998,537 71,125
HMA....................... 48,908,310 41,719,781 1,507,459 34,351,150 2,446,806
FVA Total..................... 68,035,769 58,035,891 2,097,008 47,785,478 3,403,723
0.2PFA Total.................. 57,766,400 49,275,911 1,780,484 40,572,701 2,889,962
FEMA Admin.................... 4,942,430 4,291,414 155,061 3,619,968 257,848
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[[Page 67873]]
Not Quantified................ Not Estimated: Increased resiliency standard for approximately 20,961 facility
projects over 10 years, Additional costs for Adding Requirements to Buildings
with Basements, Diversion of Projects Out of the Floodplain, Lifecycle
maintenance costs for floodproofing, and Project Delays and Forgone Projects.
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Transfer Payments from FEMA to Grant Recipients *
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CISA Total (primary) (+5-ft).. 119,647,439 102,061,693 3,687,791 84,035,355 5,985,773
PA........................ 97,422,670 83,103,514 3,002,776 68,425,607 4,873,903
IA........................ 1,421,690 1,212,730 43,820 998,537 71,125
HMA....................... 36,681,233 31,289,834 1,130,594 25,763,363 1,835,104
FVA Total..................... 53,773,657 45,870,019 1,657,420 37,768,366 1,657,420
0.2PFA Total.................. 45,499,493 38,811,991 1,402,392 31,956,941 2,276,268
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Benefits *
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PA (CISA, primary) (+1-ft).... 61,985,720 52,875,076 1,910,533 43,536,175 3,101,048
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Not Quantified................ Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure
projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives
Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of
Critical Facilities, Reduction of Personal and Community Impacts.
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* FEMA focused its analysis on the projects impacted in the first 10 years after the rule's publication. FEMA
considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a
50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year
period because that is when the initial investment to elevate or floodproof them to meet the proposed
requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the
benefits of the proposed rule are realized over the 50-year useful life of the affected structures.
Table 3 provides the estimated number of structures and facilities
affected by the proposed rule over the first 10 years, assuming that
each approach is the only expansion option. Structures, which are
walled and roofed buildings, would comply with the proposed FFRMS
through elevating or floodproofing to the required height. Facilities,
which are any human-made or human-placed items other than a structure
such as roads and bridges, would require different mitigation measures
in order to comply with the increased resiliency standard of the
proposed rule. The monetized impacts of this rule are representative of
the floodproofing and elevation mitigation measures that would be
required of structures. However, for reasons explained in more detail
later, FEMA was unable to monetize the impacts of the rule for
facilities.
Table 3--Estimated Number of Structures and Facilities Affected by the Proposed Rule in Years 1-10
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Structures Facilities
FFRMS approach --------------------------------- Total ---------------------- Total Total
PA IA HMA structures PA HMA facilities projects
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FVA.................................................... 1,090 2,650 9,492 13,232 20,120 841 20,961 34,193
0.2PFA................................................. 840 2,650 9,447 12,937 20,120 841 20,961 33,898
CISA................................................... 1,173 2,903 10,351 14,427 20,120 841 20,961 35,388
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Quantified estimates of the benefits of this rule are available for
only non-residential PA Category E projects, which are for structures.
Due to the highly project-specific nature of facilities projects and
numerous options for making them resilient, FEMA could not estimate the
costs of improving flood resiliency of facilities.\10\ Tables 1 and 2
show that the total 60-year benefits for non-residential PA Category E
projects in the first 10 years is $43.5 million (7 percent, high). This
benefit is for adding one foot of freeboard, assuming a 59-inch sea
level rise (SLR).\11\ Although the cost for PA Category E projects is
$84.8 million (7 percent, high), this cost represents 5 feet of
freeboard (FEMA's assumption for CISA).\12\ FEMA does not have data to
quantify the benefits of additional freeboard and thus the quantified
benefits represent only a portion of the increased risk reduction that
would be achieved through this rule. Ensuring projects are built to the
height necessary to avoid additional loss scenarios would provide
additional unquantified benefits of avoided damages to the structure,
[[Page 67874]]
decreased cleanup time and disruption to the community, and increased
public health and safety. Moreover, FEMA's use of CISA as its preferred
approach would use the best available and actionable scientific data to
tailor future flooding risk to each project ensuring that projects are
built only to the height necessary and thus maximizing net benefits.
Accordingly, FEMA believes the benefits of the rule--quantified and
unquantified--would justify its costs.
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\10\ Category E projects are public buildings and contents. See
Public Assistance Fact Sheet at <a href="https://www.fema.gov/sites/default/files/2020-07/fema_public-assistance-fact-sheet_10-2019.pdf">https://www.fema.gov/sites/default/files/2020-07/fema_public-assistance-fact-sheet_10-2019.pdf</a>.
\11\ FEMA used one foot for benefits as the 2022 report only
specifies monetary benefits for an additional one foot over current
requirements. FEMA included this number in the quantified benefits
because it is the only monetary benefit available for any freeboard
level.
\12\ Costs for the FVA may be a better comparison because they
represent 2 or 3 feet of freeboard, depending on criticality.
However, the number of projects using FVA and CISA differ, making
such a comparison difficult.
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III. Legal and Factual Background
Below, FEMA describes in more specific detail the basis for this
proposed rule. Section III.A describes Executive Order 11988, the Water
Resources Council's 1978 ``Floodplain Management Guidelines'' (1978
Guidelines), and the statutory authority underlying the Executive
Order. Executive Order 11988 along with the 1978 Guidelines established
an 8-step decision-making process by which Federal agencies carry out
Executive Order 11988's direction to avoid the long- and short-term
adverse impacts associated with the occupancy and modification of the
floodplain and avoid the direct or indirect support of floodplain
development whenever there is a practicable alternative. Section III.B
describes FEMA's statutory authority to require its grant recipients to
carry out repairs or construction in accordance with specific
standards. Section III.C describes FEMA's implementing regulations at
44 CFR part 9, which closely follow the model decision-making process
under Executive Order 11988. Section III.D describes how lessons
learned from major events, including Hurricane Sandy, prompted
reevaluation of the prevailing standard for determining whether a
proposed action was located within a floodplain. Section III.E
describes the development of Executive Order 13690, the Federal Flood
Risk Management Standard, and additional guidance in the Revised
Guidelines issued in 2015 as well as subsequent amendments to Executive
Order 11988. Section III.F describes the substantive components of the
Federal Flood Risk Management Standard and Section III.G describes
FEMA's proposed approach to implement the required changes.
A. Executive Order 11988, ``Floodplain Management''
The President issued Executive Order 11988 (42 FR 26951, May 25,
1977) in furtherance of the National Flood Insurance Act of 1968, as
amended (42 U.S.C. 4001 et seq.); the Flood Disaster Protection Act of
1973, as amended (Pub. L. 93-234, 87 Stat. 975); and the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). The
National Flood Insurance Act, as amended by the Flood Disaster
Protection Act establishes a multi-purpose program to provide flood
insurance, minimize exposure of property to flood losses, minimize the
damage caused by flood losses, and guide the development of proposed
construction, where practicable, away from floodplains.\13\ The
National Flood Insurance Act and the Flood Disaster Protection Act
highlight coordination of flood insurance with land management programs
in flood-prone areas. NEPA requires Federal agencies to analyze the
environmental impacts of proposed actions and evaluate alternatives to
those actions, which includes the evaluation of the impacts of proposed
actions in the floodplains.\14\ NEPA mandates that agencies ``attain
the widest range of beneficial uses of the environment without
degradation, risk to health or safety, or other undesirable and
unintended consequences.'' \15\ In furtherance of and consistent with
this statutory foundation, Executive Order 11988 requires Federal
agencies to avoid, to the extent possible, the long- and short-term
adverse impacts associated with the occupancy and modification of
floodplains, where there is a practicable alternative. The Executive
Order requires each Federal agency to provide leadership and take
action to reduce the risk of flood loss, to minimize the impact of
floods on human safety, health, and welfare, and to restore and
preserve the natural and beneficial values served by floodplains in
carrying out its responsibilities for: (1) acquiring, managing, and
disposing of Federal lands and facilities; (2) providing federally
undertaken, financed, or assisted construction and improvements; and
(3) conducting Federal activities and programs affecting land use,
including but not limited to water and related land resources planning,
regulating, and licensing activities. It states that each agency has a
responsibility to evaluate the potential effects of any actions it may
take in a floodplain; to ensure that its planning, programs, and budget
requests reflect consideration of flood hazards and floodplain
management; and to prescribe procedures to implement the policies and
requirements of the Executive Order.
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\13\ See 42 U.S.C. 4001 and 4102.
\14\ See 42 U.S.C. 4332(2)(C).
\15\ See 42 U.S.C. 4331(b)(3).
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To meet these requirements, each agency, before taking an action,
must determine whether the proposed action will occur in a
floodplain.\16\ Section (6)(c) of Executive Order 11988 defines the
word ``floodplain'' to mean ``the lowland and relatively flat areas
adjoining inland and coastal waters including floodprone areas of
offshore islands, including at a minimum, the area subject to a one
percent or greater chance of flooding in any given year.'' \17\
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\16\ Any action FEMA takes in a floodplain, including its
provision of grants for disaster assistance, undergoes an analysis
pursuant to Executive Order 11988 (unless the action is specifically
exempted from the requirements of the Order). The grant recipient,
therefore, generally provides information to FEMA about the
practicability of alternatives outside the floodplain and other
information to assist in the analysis.
\17\ This is also referred to as the ``100-year floodplain'' or
the ``base floodplain.''
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If the action will occur in a floodplain, the agency must consider
alternatives to avoid adverse effects and incompatible development in
the floodplain. If the agency finds that the only practicable
alternative requires the action to occur in the floodplain, the agency
must, prior to taking the action, design or modify the action in order
to minimize potential harm to or within the floodplain. Additionally,
the agency must prepare and circulate a notice explaining why the
action is proposed to be located in the floodplain. Particularly
relevant to FEMA, the Executive Order also requires agencies to provide
appropriate guidance to applicants for grant funding to encourage them
to evaluate the effects of their proposals in floodplains prior to
submitting grant applications.
Executive Order 11988 requires agencies to prepare implementing
procedures in consultation with the Water Resources Council (WRC),\18\
FEMA, and the Council on Environmental Quality (CEQ). As noted, the WRC
issued ``Floodplain Management Guidelines'' (1978 Guidelines), the
authoritative interpretation of Executive Order 11988.\19\ The 1978
Guidelines provided
[[Page 67875]]
a section-by-section analysis, defined key terms, and outlined an 8-
step decision-making process for carrying out the directives of
Executive Order 11988.
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\18\ The Water Resources Council, established by statute (42
U.S.C. 1962a-1), is charged with maintaining a continuing study and
preparing an assessment biennially, or at such less frequent
intervals as the Council may determine, of the adequacy of supplies
of water necessary to meet the water requirements in each water
resource region in the United States and the national interest
therein; and maintaining a continuing study of the relation of
regional or river basin plans and programs to the requirements of
larger regions of the Nation and of the adequacy of administrative
and statutory means for the coordination of the water and related
land resources policies and programs of the several Federal
agencies. It is responsible for appraising the adequacy of existing
and proposed policies and programs to meet such requirements and
making recommendations to the President with respect to Federal
policies and programs.
\19\ 43 FR 6030, Feb. 10, 1978. A PDF copy of the 1978
Guidelines can be found at this link: <a href="http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_14216.pdf">http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_14216.pdf</a> (last accessed July 12,
2023).
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B. Statutory Authority To Require FFRMS Under FEMA Grant Programs
FEMA's grant programs that fund new construction, substantial
improvement, or repairs to address substantial damage are authorized
under the Robert T. Stafford Disaster Relief and Emergency Assistance
Act, as amended (42 U.S.C. 5121 et seq.) and the National Flood
Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.). FEMA
generally has authority under these discretionary grant programs to set
eligibility criteria. Further, section 323 of the Stafford Act
authorizes FEMA to require, as a condition of grant funding for all
Stafford Act programs, that the repair or construction of private and
public facilities be completed in accordance with ``applicable
standards of safety, decency, and sanitation in conformity with
applicable codes, specifications and standards.'' \20\ Section 323 also
grants FEMA discretion to require any other safe land use and
construction practices it deems appropriate after adequate consultation
with appropriate State and local government officials.\21\ Section 404
of the National Flood Insurance Act grants FEMA the authority to
provide flood mitigation grant funding and requires the activities
funded to be consistent with floodplain management criteria developed
by the Administrator.\22\
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\20\ See 42 U.S.C. 5165a(a)(1)
\21\ See 42 U.S.C. 5165a(a)(2)
\22\ See 42 U.S.C. 4104c and 4102.
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C. 44 CFR Part 9, ``Floodplain Management and Protection of Wetlands''
Consistent with the National Flood Insurance Act, the Flood
Disaster Protection Act, and NEPA, FEMA promulgated regulations
implementing Executive Order 11988 at 44 CFR part 9, ``Floodplain
Management and Protection of Wetlands.'' \23\ Part 9 closely follows
the 1978 Guidelines in setting forth FEMA's policy and procedures for
floodplain management relating to disaster planning, response and
recovery, and hazard mitigation. Part 9 generally applies to FEMA
actions, including FEMA direct actions and FEMA's disaster and non-
disaster assistance programs.\24\
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\23\ FEMA published an interim final rule on December 27, 1979
(44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520).
Note that this part also implements a related Executive Order 11990,
``Protection of Wetlands.'' See 42 FR 26961, May 25, 1977.
\24\ 44 CFR 9.4 defines the actions subject to the requirements,
which include federal lands and facilities, providing federal funds
for construction and improvements, and conducting activities or
programs that affect land use.
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Pursuant to section 8 of Executive Order 11988, part 9 does not
apply to assistance provided for emergency work essential to save lives
and protect property and public health and safety, performed pursuant
to sections 403 and 502 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended (42 U.S.C. 5170b and 5192). In
addition, FEMA applies part 9 programmatically to the National Flood
Insurance Program (NFIP) \25\. FEMA does not apply part 9 to site-
specific actions under the NFIP because the establishment of
programmatic criteria, rather than the application of the programmatic
criteria to individual situations, is the action with the potential to
influence/affect floodplains.\26\
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\25\ A complete list of FEMA programs to which Part 9 does not
apply appears at 44 CFR 9.5. The exemption for actions under the
NFIP is located at 44 CFR 9.5(f).
\26\ For example, Part 9 requires FEMA to apply the 8-step
process to a programmatic determination of categories of structures
to be insured but does not require FEMA to apply an 8-step review to
a determination of whether to insure each individual structure. See
45 44 CFR 9.5(f).
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Below FEMA outlines the existing 8-step decision-making process
that the agency currently follows in applying Executive Order 11988 to
its actions:
Step (1) Floodplain and wetland determination (44 CFR 9.7). Under
Step 1, FEMA must determine if a proposed agency action is located in
or affects the 1 percent annual chance floodplain (or, for critical
actions, the 0.2 percent annual chance floodplain) or wetland. The 1
percent annual chance (or base or 100-year) floodplain is the area
subject to inundation by the 1 percent annual chance flood, which is
that flood which has a 1 percent chance of occurrence in any given year
(also known as the base or 100-year flood). A ``critical action'' is
any activity for which even a slight chance of flooding would be too
great.\27\ The minimum floodplain of concern for critical actions is
the 0.2 percent annual chance (or 500-year) floodplain, which is the
area subject to inundation from a flood having a 0.2 percent chance of
occurring in any given year. The 0.2 percent annual chance floodplain
generally covers a larger area than the 1 percent annual chance
floodplain. FEMA's regulations state that in each instance where the 8-
step process refers to the 1 percent annual chance floodplain, an
agency should substitute the 0.2 percent annual chance floodplain for
the 1 percent annual chance floodplain if the proposed action is a
critical action. Absent a finding to the contrary, FEMA currently
assumes a proposed action involving a facility or structure that has
been flooded is in the floodplain.
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\27\ The concept of critical actions evolved during the drafting
of the 1978 Guidelines and reflects a concern that the impacts of
floods on human safety, health, and welfare for many activities
could not be minimized unless a higher degree of protection than the
base flood was provided. See Interagency Task Force on Floodplain
Management, Further Advice on Executive Order 11988 Floodplain
Management (1986) (last accessed July 12, 2023).
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FEMA follows a specific regulatory sequence in order to make its
floodplain determination. First, FEMA must consult the Flood Insurance
Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and the Flood
Insurance Study (FIS) for the area.\28\ A FIRM is an official, detailed
map issued by the NFIP, generally showing elevations and boundaries of
the 1 percent annual chance floodplain and the 0.2 percent annual
chance floodplain.\29\ The FBFM is a version of a flood map that shows
only the floodway \30\ and flood boundaries. An FIS report is an
examination, evaluation, and determination of flood hazards and, if
appropriate, corresponding water surface elevations. If a FIRM is not
available, FEMA must obtain a Flood Hazard Boundary Map (FHBM) which is
a less detailed map than a FIRM and shows the approximate areas of the
1 percent annual chance floodplain. If data on flood elevations,
floodways, or coastal high hazard areas are needed, or if the map does
not delineate the flood hazard boundaries in the vicinity of the
proposed site, FEMA must seek detailed information from a list of
sources included in the regulations. See 44 CFR 9.7(c)(1)(ii). If the
sources listed do not have or know of detailed information and are
unable to assist in determining whether the proposed site is in the 1
percent annual chance floodplain, FEMA must seek the services of a
licensed consulting engineer experienced in this type of work. If,
however, a decision involves an area or
[[Page 67876]]
location within extensive Federal or State holdings or a headwater
area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA will seek
information from the land administering agency before seeking
information and/or assistance from the list of sources included in the
regulations. Then, if none of the sources listed has information or can
provide assistance, FEMA will seek the services of an experienced
Federal or other engineer. If the proposed action is outside the
floodplain or wetland and has no identifiable impacts or support, the
action can be implemented (Step 8).
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\28\ FEMA also utilizes best available information in making
floodplain determinations, which may include preliminary FIRMs or
Advisory Base Flood Elevations (ABFEs). See FEMA Policy: Guidance on
the Use of Available Flood Hazard Information (last accessed July
12, 2023).
\29\ FEMA estimates that only approximately 20 percent of mapped
flood zones have detailed floodplain boundaries of the 0.2 percent
annual chance floodplain.
\30\ The floodway is the channel of a river or other watercourse
and the adjacent land areas that must be reserved in order to
discharge the base flood without cumulatively increasing the water
surface elevation more than a designated height. See 44 CFR 59.1.
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Step (2) Early public review (44 CFR 9.8). FEMA must make public
its intent to locate a proposed action in the floodplain or a
wetland.\31\ FEMA must provide adequate information to enable the
public to have an impact on the decision outcome for all proposed
actions having potential to affect, adversely, or be affected by
floodplains or wetlands. For each action having national significance
for which notice is provided, FEMA uses the Federal Register as the
minimum means for notice and will provide notice by mail to national
organizations reasonably expected to be interested in the action. 44
CFR 9.8(c)(5) describes the contents of the public notice, such as a
description of the action, the degree of hazard involved, a map of the
area, or other identification of the floodplain, and identification of
the responsible agency official.
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\31\ This step is required for any action that is within or
affects a floodplain or wetland unless exempted or subject to the
abbreviated processes outlined in 44 CFR 9.5.
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Step (3) Practicable alternatives (44 CFR 9.9). If the action is in
the floodplain or a wetland, FEMA will identify and evaluate
practicable alternatives to carrying out a proposed action in
floodplains or wetlands, including the following: alternative sites
outside the floodplain or wetland; alternative actions which serve
essentially the same purpose as the proposed action, but which have
less potential to affect or be affected by the floodplain or wetland;
and ``no action.'' The floodplain or wetland site itself must be a
practicable location in light of the other factors. Under 44 CFR
9.9(c), FEMA will analyze several factors in determining the
practicability of the alternatives described in 44 CFR 9.9(b), namely
natural environment, social concerns, economic aspects, and legal
constraints. 44 CFR 9.9(d) states that FEMA will not locate the
proposed action in the floodplain or wetland if a practicable
alternative exists outside the floodplain or wetland. For critical
actions, FEMA will not locate the proposed action in the 0.2 percent
annual chance floodplain if a practicable alternative exists outside
the 0.2 percent annual chance floodplain. Even if no practicable
alternative exists outside the floodplain, in order to carry out the
action the floodplain or wetland must itself be a practicable location
in light of the review required under Step 3.
Step (4) Impact of chosen alternative (44 CFR 9.10). FEMA must
identify if the action has impacts in the floodplain or wetland. 44 CFR
9.10(b) provides that FEMA will identify the potential direct and
indirect adverse impacts associated with the occupancy and modification
of floodplains or wetlands and the potential direct and indirect
support of floodplain or wetland development that could result from the
proposed action.
Step (5) Minimize impacts (44 CFR 9.11). If the proposed action has
identifiable impacts in the floodplain or wetland or directly or
indirectly supports development in the floodplain or wetland, FEMA must
minimize these effects and restore and preserve the natural and
beneficial values served by floodplains and wetlands. 44 CFR 9.11(b)
states generally that FEMA will design or modify its actions to
minimize harm to or within the floodplain; will minimize destruction,
loss, or degradation of wetlands; will restore and preserve natural and
beneficial floodplain values; and will preserve and enhance natural and
beneficial wetland values. Pursuant to 44 CFR 9.11(c), FEMA will more
specifically minimize potential harm to lives and the investment at
risk from the 1 percent annual chance flood, or, in the case of
critical actions, from the 0.2 percent annual chance flood; potential
adverse impacts the action may have on others; and potential adverse
impacts the action may have on floodplain values.
Pursuant to 44 CFR 9.11(d), FEMA will not allow new construction or
substantial improvement in a floodway and will not allow new
construction in a coastal high hazard area, except for a functionally
dependent use \32\ or a structure or facility which facilitates an open
space use. For a structure which is a functionally dependent use, or
which facilitates an open space use, FEMA will not allow construction
of a new or substantially improved structure in a coastal high hazard
area unless it is elevated on adequately anchored pilings or columns
and securely anchored to such piles or columns so that the lowest
portion of the structural members of the lowest floor (excluding the
pilings or columns) is elevated to or above the 1 percent annual chance
flood level (the 0.2 percent annual chance flood level for critical
actions) (including wave height). Regarding elevation of structures, 44
CFR 9.11(d)(3) states that there will be no new construction or
substantial improvement of structures unless the lowest floor of the
structures (including basement) is at or above the level of the 1
percent annual chance flood, and there will be no new construction or
substantial improvement of structures involving a critical action
unless the lowest floor of the structure (including the basement) is at
or above the level of the 0.2 percent annual chance flood.
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\32\ A functionally dependent use means a use which cannot
perform its intended purpose unless it is located or carried out in
close proximity to water. See 44 CFR 9.4.
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Step (6) Reevaluate alternatives (44 CFR 9.9). FEMA must reevaluate
the proposed action. Pursuant to 44 CFR 9.9(e), upon determination of
the impact of the proposed action to or within the floodplain or
wetland and of what measures are necessary to comply with the
requirement to minimize harm to and within the floodplains and
wetlands, FEMA will determine whether: the action is still practicable
at a floodplain or wetland site in light of the exposure to flood risk
and the ensuing disruption of natural values, the floodplain or wetland
site is the only practicable alternative, the scope of the action can
be limited to increase the practicability of previously rejected non-
floodplain or non-wetland sites and alternative actions, and
minimization of harm to or within the floodplain or wetland can be
achieved using all practicable means. Pursuant to 44 CFR 9.9(e)(2),
FEMA will take no action in a floodplain or wetland unless the
importance of the floodplain or wetland site clearly outweighs the
requirement of Executive Order 11988 to avoid direct or indirect
support of floodplain or wetland development; reduce the risk of flood
loss; minimize the impact of floods on human safety, health, and
welfare; and restore and preserve floodplain and wetland values.
Step (7) Findings and public explanation (44 CFR 9.12). If FEMA
finds that the only practicable alternative is to take the action in
the floodplain or wetland, it must give public notice of the reasons
for this finding. 44 CFR 9.12(e) describes the requirements for the
content of such notice, such as a statement of why the proposed action
must be located in an area affecting or affected by a floodplain or
wetland, a description of all significant facts considered in making
[[Page 67877]]
this determination, identification of the responsible official, and a
map of the relevant area. FEMA may implement the proposed action after
it allows a reasonable period for public response.
Step (8) Implementation (Multiple sections of 44 CFR and applicable
program guidance). Implementation of the requirements of Executive
Order 11988 is integrated into the specific regulations and procedures
of the grant program under which the action is proposed to take place.
After the proposed action is implemented, the FEMA program providing
the funding determines under its applicable regulations and procedures
whether the grant recipient has completed the prescribed mitigation.
D. Reevaluation of the 1 Percent Annual Chance Flood Standard
In the aftermath of Hurricane Sandy, the President issued Executive
Order 13632,\33\ which created the Federal Interagency Hurricane Sandy
Rebuilding Task Force (Sandy Task Force). Pursuant to direction from
Executive Order 13632 to remove obstacles to resilient rebuilding, the
Sandy Task Force reevaluated the 1 percent chance/100-year standard. In
April 2013, the Sandy Task Force announced a new Federal flood risk
reduction standard which required elevation or other flood-proofing to
1 foot above \34\ the best available and most recent 1 percent annual
chance flood elevation and applied that standard to all Federal
disaster recovery investments in Sandy-affected communities.\35\ The
Sandy Task Force called for all major rebuilding projects in Sandy-
affected communities using Federal funding to be elevated or otherwise
flood-proofed according to this new flood risk reduction standard.
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\33\ 77 FR 74341 (Dec. 14, 2012).
\34\ This is also known as ``freeboard.'' ``Freeboard'' is a
factor of safety usually expressed in feet above a flood level for
purposes of floodplain management. Freeboard tends to compensate for
the many unknown factors that could contribute to flood heights
greater than the height calculated for a selected size flood and
floodway conditions, such as wave action, bridge openings, and the
hydrologic effect of urbanization of the watershed. See <a href="https://www.fema.gov/glossary/freeboard">https://www.fema.gov/glossary/freeboard</a> (last accessed July 12, 2023).
\35\ HUD release entitled, ``Federal Government Sets Uniform
Flood Risk Reduction Standard for Sandy Rebuilding Projects,'' April
4, 2013.
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In June 2013, the President issued a Climate Action Plan \36\ that
directed agencies to take appropriate actions to reduce risk to Federal
investments, specifically directing agencies to build on the work done
by the Sandy Task Force and to update their flood risk reduction
standards for ``federally-funded . . . projects'' to ensure that
``projects funded with taxpayer dollars last as long as intended.''
\37\ After a year-long process of receiving input from State, local,
Tribal, and territorial governments; private businesses; trade
associations; academic organizations; civil society; and other
stakeholders, the Task Force provided a recommendation to the President
in November 2014. The Climate Task Force recommended that, in order to
ensure resiliency, Federal agencies, when taking actions in and around
floodplains, should include considerations of the effects of changing
conditions, including sea level rise, more frequent and severe storms,
and increasing river flood risks. The Climate Task Force also
recommended that the best available climate data should be used in
siting and designing projects receiving Federal funding, and that
margins of safety, such as freeboard and setbacks, should be
included.\38\
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\36\ Executive Office of the President, The President's Climate
Action Plan (2013), available at <a href="https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf">https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf</a>. (last
accessed July 12, 2023).
\37\ See id at 15.
\38\ President's State, Local, and Tribal Leaders Task Force on
Climate Preparedness and Resilience, Recommendations to the
President, (2014), available at <a href="https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf">https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf</a> at 7 (last accessed July 12, 2023).
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E. Executive Order 13690, the Federal Flood Risk Management Standard
and Subsequent Amendments to Executive Order 11988, and Revisions to
the 1978 Guidelines
On January 30, 2015, the President issued Executive Order 13690,
``Establishing a Federal Flood Risk Management Standard (FFRMS) and a
Process for Further Soliciting and Considering Stakeholder Input.''
\39\ Executive Order 13690 amended Executive Order 11988 and
established the FFRMS. It required FEMA to publish an updated version
of the Implementing Guidelines (revised to incorporate the changes
required by Executive Order 13690 and the FFRMS) in the Federal
Register for notice and comment. Finally, Executive Order 13690
required the WRC to issue final Guidelines to provide guidance to
agencies on the implementation of Executive Order 11988, as amended,
consistent with the FFRMS.
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\39\ 80 FR 6425, Feb. 4, 2015.
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FEMA, acting on behalf of the Mitigation Framework Leadership
Group, published a Federal Register notice for a 60-day notice and
comment period seeking comments on a draft of the Revised Guidelines on
February 5, 2015.\40\ FEMA received over 556 separate submissions.\41\
The final Revised Guidelines were issued on October 8, 2015.\42\ The
Revised Guidelines contain an updated version of the FFRMS (located at
Appendix G of the Revised Guidelines), reiterate key concepts from the
1978 Guidelines, and explain the new concepts resulting from the FFRMS.
In response to public comments, the Mitigation Framework Leadership
Group clarified the distinction between actions and Federally funded
projects.
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\40\ 80 FR 6530, Feb. 5, 2015.
\41\ FEMA received approximately 556 separate submissions, which
raised over 2700 separate issues and positions. Written comments
were received at a series of 8 in-person listening sessions across
the country (135 submissions); verbal comments were shared during
the public comment periods of these same listening sessions (74
commenters); comments were submitted through the FFRMS email address
(20 submissions); comments were submitted through <a href="http://regulations.gov">regulations.gov</a>
(326 submissions); and comments were submitted as part of a petition
of support (1 submission).
\42\ 80 FR 64008 (Oct. 22, 2015); <a href="https://www.regulations.gov/document/FEMA-2015-0006-0358">https://www.regulations.gov/document/FEMA-2015-0006-0358</a> (last accessed July 12, 2023).
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On August 22, 2016, FEMA published an NPRM entitled ``Updates to
Floodplain Management and Protection of Wetlands Regulations To
Implement Executive Order 13690 and the Federal Flood Risk Management
Standard'' in the Federal Register (81 FR 57402). The rulemaking would
have revised FEMA's regulations on ``Floodplain Management and
Protection of Wetlands'' to implement Executive Order 13690. FEMA also
proposed a supplementary policy entitled ``FEMA Policy: Guidance for
Implementing the Federal Flood Risk Management Standard (FFRMS)'' (FEMA
Policy 078-3), which would have further clarified how FEMA would apply
the FFRMS. The notice of availability and request for comments for the
supplementary policy also published in the August 22, 2016 Federal
Register at 81 FR 56558. On September 20, 2016, FEMA published a notice
of data availability regarding a draft report, the 2016 Evaluation of
the Benefits of Freeboard for Public and Nonresidential Buildings in
Coastal Areas, which had been added to the docket for the proposed rule
(81 FR 64403).
On August 15, 2017, the President issued Executive Order 13807
(``Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure Projects'') which
revoked Executive Order 13690. See 82 FR 40463, Aug. 24, 2017.
Accordingly, on March 6, 2018, in light of the revocation of Executive
Order 13690, FEMA
[[Page 67878]]
withdrew the August 22, 2016 NPRM and supplementary policy (83 FR
9473).
On May 20, 2021, the President issued Executive Order 14030
(``Climate-Related Financial Risk'') \43\ reinstating Executive Order
13690, thereby reestablishing the FFRMS. Executive Order 14030 also
states that the Revised Guidelines issued in 2015 were never revoked
and remain in effect. As such, FEMA reviewed its prior NPRM and
proposed policy and decided to revise its approach to implementation
based on lessons learned during and since the 2016 rulemaking process.
Specifically, FEMA first partially implemented the FFRMS by policy with
respect to covered projects in existing floodplains in its Public
Assistance and Hazard Mitigation Assistance programs.\44\ FEMA next
proposes to fully implement the FFRMS through this updated revision to
its regulations and an updated supplementary policy.
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\43\ 86 FR 27967 (May 25, 2021).
\44\ See FEMA Policy 104-22-003, ``Partial Implementation of the
Federal Flood Risk Management Standard for Public Assistance
(Interim),'' June 3, 2022 found at <a href="https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf">https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf</a> (last accessed July 12, 2023) and FEMA Policy
206-21-003-0001, ``Partial Implementation of the Federal Flood Risk
Management Standard for Hazard Mitigation Assistance Program,'' Dec.
7, 2022 found at <a href="https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf">https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf</a> (last accessed July 12, 2023).
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F. Substantive Components of the FFRMS
The FFRMS is a flexible framework to increase resilience against
flooding and help preserve the natural values of floodplains and
wetlands.\45\ Incorporating the FFRMS will expand the floodplain and
require projects be built with higher resiliency. Applying the FFRMS
will help ensure that Federally funded projects will last as long as
intended. In addition, the FFRMS and revised guidelines require the
evaluation of natural features and nature-based approaches, where
possible, in the analysis of practicable alternatives in Step 3 of the
decision-making process for all Federal actions.
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\45\ Although the FFRMS describes various approaches for
determining the higher vertical flood elevation and corresponding
horizontal floodplain for Federally funded projects, it is not meant
to be an ``elevation'' standard. The FFRMS is a resilience standard.
The vertical flood elevation and corresponding horizontal floodplain
determined using the approaches in the FFRMS establish the level to
which a structure or facility must be resilient. This may include
using structural or non-structural methods to reduce or prevent
damage; elevating a structure; or, where appropriate, designing it
to adapt to, withstand, and rapidly recover from a flood event. See
``Guidelines for Implementing Executive Order 11988, Floodplain
Management, and Executive Order 13690, Establishing a Federal Flood
Risk Management Standard and a Process for Further Soliciting and
Considering Stakeholder Input'' (Oct. 8, 2015), found at <a href="https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf">https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf</a> (last accessed July 12, 2023).
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Under the FFRMS, a Federal agency may establish the floodplain for
actions subject to the FFRMS using any of the following approaches:
<bullet> Approach 1: Climate-Informed Science Approach (CISA):
Utilizing the best-available, actionable hydrologic and hydraulic data
and methods that integrate current and future changes in flooding based
on climate science;
<bullet> Approach 2: Freeboard Value Approach (FVA): Freeboard (1
percent annual chance flood elevation + X, where X is 3 feet for
critical actions and 2 feet for other actions);
<bullet> Approach 3: 0.2-percent-annual-chance Flood Approach
(0.2PFA): 0.2 percent annual chance flood (also known as the 500-year
flood); or
<bullet> Approach 4: the elevation and flood hazard area that
result from using any other method identified in an update to the
FFRMS.\46\
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\46\ See Executive Order 13690 Section 2(i), 80 FR 6425, 6426
(Feb. 4, 2015).
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Each of the approaches is described in further detail below.
FFRMS Approach 1: CISA. The FFRMS and Revised Guidelines state that
the CISA is the preferred approach, and that Federal agencies should
use this approach when data to support such an analysis are available.
CISA uses existing, sound science and engineering methods (e.g.,
hydrologic and hydraulic analysis and methods used to establish current
flood elevations and floodplain maps), supplemented with best available
and actionable climate science and consideration of impacts from
projected land cover/land use changes, long-term erosion, and other
processes that may alter flood hazards over the lifecycle of the
Federal investment.\47\ For areas vulnerable to coastal flood hazards,
the CISA includes consideration of the regional sea-level rise
variability and lifecycle of the Federal action. This includes use of
the Department of Commerce's National Oceanic and Atmospheric
Administration's (NOAA's) or similar global mean sea-level-rise
scenarios. These scenarios would be adjusted to the local relative sea-
level conditions and would be combined with surge, tide, and wave data
using state-of-the-art science in a manner appropriate to policies,
practices, criticality, and consequences. For areas vulnerable to
riverine flood hazards (i.e., flood hazards stemming from a river
source), the CISA would account for changes in riverine conditions due
to current and future changes in climate and other factors such as land
use by applying state-of-the-art science in a manner appropriate to
policies, practices, criticality, and consequences (risk). The CISA for
critical actions would utilize the same methodology as used for non-
critical actions that are subject to Executive Order 11988, as amended,
but with an emphasis on criticality as one of the factors for agencies
to consider when conducting the analysis.
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\47\ See Guidelines, pgs. 36-37.
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FFRMS Approach 2: FVA. The FFRMS and Revised Guidelines define
freeboard values as an additional 2 feet added to the 1 percent annual
chance flood elevation, or, for critical actions, an additional 3 feet
added to the 1 percent annual chance flood elevation. In other words,
the floodplain established by the FVA is the equivalent of the 1
percent annual chance floodplain, plus either 2 or 3 feet of vertical
elevation, as applicable based on criticality, and a corresponding
increase in the horizontal extent of the floodplain. The increased
horizontal extent will not be the same in every case. As shown in the
next two illustrations, when the same vertical increase is applied in
multiple actions subject to the FFRMS in different areas, the amount of
the increase in the horizontal extent of the respective floodplains
will depend upon the topography of the area surrounding the proposed
location of the action. FVA Illustration A reflects an area with
relatively flat topography on either side of the flooding source (i.e.,
river or stream) channel. This is generally representative of coastal
plains, portions of the Midwest, and other areas with less variation in
topography. FVA Illustration B reflects an area with steep topography
on either side of the flooding source channel. This is representative
of mountainous areas or areas with changes in elevation near the
flooding source. With the same addition of 2 feet to the 1 percent
annual chance flood elevation applied to both example locations, the
increase to the horizontal extent of the floodplain in FVA Illustration
A is comparatively larger than the increase to the horizontal extent of
the floodplain in FVA Illustration B. These illustrations visually
depict the fact that the horizontal increase to the floodplain will not
be uniform when applying the same increase to establish the FVA and
[[Page 67879]]
will vary depending on local topography.
BILLING CODE 9111-66-P
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BILLING CODE 9111-66-C
[[Page 67880]]
FFRMS Approach 3: 0.2PFA. Agencies may use available 0.2 percent
annual chance (or ``500-year'') flood data as the basis of the FFRMS
elevation and corresponding floodplain extent. Under this approach the
same floodplain and elevation is used for critical and non-critical
actions. The FFRMS and Revised Guidelines note that often the 0.2
percent annual chance flood elevation data provided by FEMA in coastal
areas only considers storm-surge hazards; these data do not include
local wave action or storm-induced erosion that are considered in the
computation of flood elevations. The FFRMS and Revised Guidelines
encourage agencies to obtain or develop the necessary data, including
wave heights, to ensure that any 0.2 percent annual chance flood data
applied will achieve an appropriate level of flood resilience or use
the FVA approach instead for the proposed investment.
FFRMS Approach 4: Update to FFRMS. The Mitigation Framework
Leadership Group in consultation with the Federal Interagency
Floodplain Management Task Force must reassess the FFRMS annually after
seeking stakeholder input, and provide recommendations to the WRC to
update the FFRMS. if warranted. The WRC must issue an update to the
FFRMS at least every 5 years. The updates ensure the floodplain
determination process for actions subject to the FFRMS reflects current
methodologies.
Further Guidance on Application of the FFRMS Approaches To
Establishing the Floodplain. The FFRMS and Revised Guidelines state
that when an agency does not use CISA in a coastal flood hazard area
and where the FEMA 0.2 percent annual chance flood elevation does not
include wave height, or a wave height has not been determined, the 0.2
percent annual chance elevation should not be used and the FVA should
be used instead. The FFRMS and Revised Guidelines note that where the
0.2-percent-annual-chance-flood elevation does not consider wave
action, the result will likely either be lower than the current base
flood elevation or the base flood elevation plus applicable freeboard.
Where wave action has been incorporated into the 0.2 percent annual
chance elevation, the 0.2 percent annual chance elevation can be used.
The Guidelines state that for riverine flood hazard areas agencies
may select either the FVA, or 0.2 percent annual chance flood elevation
approach (or a combination of approaches, as appropriate) when
actionable science is not available and an agency opts not to follow
the CISA. It states that the agency is not required to use the higher
of the elevations but may opt to do so. The elevation standards of the
FFRMS are not intended to supplant applicable State, Tribal,
territorial, or local floodplain protection standards. If such
standards exceed the FFRMS, an agency should apply those standards if
the agency determines the application of the standards is reasonable in
light of the goals of Executive Order 11988, as amended.\48\
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\48\ See Revised Guidelines at 53. The Revised Guidelines
suggest that agencies should apply a reasonableness standard to
higher State, Tribal, Territorial, or local (STTL) floodplain
management standards. FEMA has historically deferred to higher local
codes and standards from an STTL government in 44 CFR 9.11(d)(6) and
will continue the practice through this rulemaking, rather than
applying a case-by-case reasonableness analysis and believes this is
appropriate because of program-specific controls that ensure higher
standards are reasonable. Specifically, in the PA program, if an
STTL government has adopted a code or standard that exceeds minimum
standards set by FEMA, regulations at 44 CFR 206.226(d) require the
code to be in place and adopted pre-disaster which guards against an
STTL government's adoption of unreasonably high codes and standards.
With respect to mitigation projects, they are all required to be
cost-effective as a minimum criteria of eligibility. See 42 U.S.C.
5170c(a); 42 U.S.C. 5133(b); 42 U.S.C. 4104c(c)(2)(A). This project-
by-project cost-effectiveness analysis should guard against any STTL
standards that are unreasonably high.
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G. FEMA's Implementation of the FFRMS and the Revised Guidelines
When Executive Order 13690 was issued, and again when it was
reinstated with Executive Order 14030, FEMA evaluated the application
of the FFRMS with respect to its existing authorities and programs. The
FFRMS establishes a flexible standard to improve resilience against the
impact of flooding--to design for the intended life of the Federal
investment. FEMA supports this principle. Between 1980 and 2021, the
United States experienced 35 flooding disaster events, each with
damages totaling over $1 billion or more, and a total of $164.2 billion
in damages for those 35 flooding disasters.\49\ FEMA, as a responsible
steward of Federal funds, must ensure it does not needlessly repeat
Federal investments in the same structures and/or facilities after
flooding events. In addition, the FFRMS will help support the thousands
of communities across the country recovering from disasters, seeking to
mitigate future impacts of flooding and to strengthen infrastructure
and other community assets to be more resilient to flood risk.\50\ FEMA
recognizes that the need to make structures resilient also requires an
equitable and flexible approach to adapt to the needs of the Federal
agency, local community, and the circumstances surrounding each project
or action consistent with evolving science and engineering advancements
that demonstrate a better understanding of flood risk and flood risk
reduction.
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\49\ See ``Billion-Dollar Weather and Climate Disasters,''
<a href="https://www.ncdc.noaa.gov/billions">https://www.ncdc.noaa.gov/billions</a>, DOI: 10.25921/stkw-7w73 (last
accessed July 12, 2023).
\50\ For example, FEMA data indicates approximately 18,068
eligible applicants for public assistance have participated in the
8-step process required by 44 CFR part 9 between 2012 and 2021.
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The current floodplain policy was designed to accept a specific
level of flood risk utilizing the 1 percent or 0.2 percent annual
chance floodplains. However, these values do not incorporate changing
future conditions caused by increasing severity of flooding and other
associated issues such as coastal erosion. The result is that the
current level of the 1 percent annual chance and 0.2 percent annual
chance flood elevation can underestimate the flooding risk to a
particular action and leave communities at higher risk to future
flooding events.
Where CISA is available and actionable, the risk of flooding can be
determined based on climate science to identify the appropriate level
of risk protection for an action based on factors such as local flood
characteristics, criticality of the action, and planned lifespan of the
action. As CISA is based on the available and actionable science for a
specific location and action, the result is a determination of the
appropriate level of resiliency to design minimization measures. Other
methods may lower the flood risk as they are above the current
floodplain policy, but in some instances, projects may be built to a
higher resiliency than required (overbuilt) or to a lower resiliency
than needed (underbuilt).\51\
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\51\ See <a href="http://www.asfpmfoundation.org/ace-images/forum/Meeting_the_Challenge_of_Change.pdf">http://www.asfpmfoundation.org/ace-images/forum/Meeting_the_Challenge_of_Change.pdf</a>.
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FEMA intends to implement the FFRMS and the Revised Guidelines
through this proposed rule and supplementary policy, which would (1)
add or revise definitions to be consistent with those included in
Executive Order 11988, as amended, and the Revised Guidelines to make
them more accessible to stakeholders; (2) incorporate the use of the
FFRMS approaches for establishing the floodplain into FEMA's existing
8-step process; and (3) include the requirement to use natural features
and nature-based approaches, where possible, when developing
alternatives to the proposed action. These revisions also update other
sections of the 8-step process to reflect current FEMA policies and
[[Page 67881]]
processes and provide additional clarity.
Making the Initial Floodplain Determination. As stated above, the
FFRMS changed the definition of ``floodplain'' with respect to actions
subject to the FFRMS (i.e., actions involving the use of FEMA funds for
new construction, substantial improvement, or to address substantial
damage to a structure or facility). The FFRMS allows the agency to
define ``floodplain'' using any of three approaches and take actions
that are informed by the best available and actionable science.
Agencies should use the CISA approach when the best available,
actionable hydrologic and hydraulic data and methods that integrate
current and future changes in flooding based on climate science are
available for actions subject to the FFRMS.\52\ For actions which do
not meet the definition of an action subject to the FFRMS, an agency
should continue to use the historical definition of floodplain with
minor clarifying revisions. This means that one of the first steps an
agency must take is to determine the appropriate floodplain. Figure 1
illustrates the process by which FEMA would decide which floodplain
would apply to an action subject to the FFRMS compared to an action
that would not be subject to the FFRMS.
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\52\ FEMA considers data to be available and actionable based on
the Revised Guidelines. Appendix H of the Revised Guidelines states
that best available data and science are transparent--clearly
outlines assumptions, applications, and limitations; technically
credible--transparent subject matter or more formal external peer
review, as appropriate, of processes and source data; usable--
relevance and accessibility of the information to its intended
users. For the climate-informed approach, usability can be achieved
by placing climate-related scenarios into appropriate spatial,
temporal, and risk-based contexts; legitimate--perceived by
stakeholders to conform to recognized principles, rules, or
standards. Legitimacy might be achieved through existing government
planning processes with the opportunity for public comment and
engagement; and flexible--scientific, engineering, and planning
practices to address climate change-related information are
evolving. To respond, agencies need to adapt and continuously update
their approaches consistent with agency guidelines and principles.
Also under Appendix H, actionable science consists of theories,
data, analyses, models, projections, scenarios, and tools that are:
relevant to the decision under consideration; reliable in terms of
its scientific or engineering basis and appropriate level of peer
review; understandable to those making the decision; supportive of
decisions across wide spatial, temporal, and organizational ranges,
including those of time-sensitive operational and capital investment
decision-making; and co-produced by scientists, practitioners, and
decision-makers, and meet the needs of and are readily accessible by
stakeholders. See Appendix H at pgs. 5-6.
[GRAPHIC] [TIFF OMITTED] TP02OC23.002
Selection Between the FFRMS Approaches. In selecting between the
FFRMS approaches, FEMA sought to retain sufficient flexibility to
account for updates to the FFRMS and yet also implement a framework
that is sufficiently standardized to be easily understood and
consistently applied to ensure an appropriate level of resilience
without overbuilding.\53\ These considerations have led FEMA to propose
a policy that considers the type and criticality of the action
involved, the availability and actionability of the data, and equity
concerns, as further explained in the current proposed supplementary
policy.
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\53\ For purposes of this rulemaking, overbuilding and
underbuilding refers to building or protecting structures and
facilities to a higher or lower resilience standard than necessary
to reduce flood risks.
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FEMA proposes to implement the FFRMS by adopting the flexible
framework detailed in the Revised Guidelines. Under this proposal, FEMA
would provide additional guidance that addresses which approach FEMA
would use for different types of actions and how FEMA would tailor its
application of the various approaches depending on
[[Page 67882]]
the best available information to inform current and future flood risk,
the type and criticality of the action, and equity. FEMA's 2016
supplementary policy proposed to use the FVA to establish the elevation
and associated floodplain for non-critical actions. For critical
actions, FEMA's 2016 supplementary policy proposed to allow the use of
the FVA or the CISA, but only if the elevation established under the
CISA was higher than the elevation established under the FVA.\54\
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\54\ 81 FR 56558.
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For the reasons stated below, FEMA's current proposed supplementary
policy proposes a different approach. Specifically, FEMA's current
proposed supplementary policy prefers the CISA floodplain where data is
available and actionable. Where CISA data is not available and
actionable, the supplementary policy selects Where CISA data is not
available and actionable, the supplementary policy selects either the
FVA or 0.2PFA to establish the floodplain. Specifically, for critical
actions, the supplementary policy requires use of the higher of the
FVA+3 or 0.2PFA. For non-critical actions, the supplementary policy
requires the use of the lower of the FVA+2 or 0.2PFA. For actions not
subject to the FFRMS, the floodplain would continue to be the 0.2
percent annual chance floodplain for critical actions and the 1 percent
annual chance floodplain for non-critical actions. Other FEMA
requirements to follow consensus codes and standards \55\ and to meet
NFIP and State, local, Tribal, and territorial standards will continue
to apply.\56\ In doing so, FEMA believes the 8-step process with FFRMS
implementation will result in a level of resiliency that is effective
for the action and also equitable for the community by utilizing
available and actionable scientific data to tailor the future flooding
risk to the action.
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\55\ See ``Consensus-Based Codes, Specifications, and Standards
for Public Assistance (Version 2)'' found at <a href="https://www.fema.gov/assistance/public/policy-guidance-fact-sheets/section-1235b-consensus-based-codes-and-standards">https://www.fema.gov/assistance/public/policy-guidance-fact-sheets/section-1235b-consensus-based-codes-and-standards</a> (last accessed July 12, 2023).
\56\ See 44 CFR part 60.3 for the NFIP minimum floodplain
management standards.
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The FVA Considered. FEMA considered using the FVA as the default
approach for both critical and non-critical actions subject to the
FFRMS. A choice to use the FVA as a default would reflect the practical
need for standardization in the earlier stages of implementation. The
FVA elevation is computed using the base flood elevation, and FEMA may
use the same sequence it has followed to determine the base flood
elevation for the purposes of establishing the FVA elevation. This
would still allow for the use of widely available FEMA regulatory
products, such as Flood Insurance Rate Maps and Flood Insurance Study
Reports.\57\ By following the same sequence that FEMA has historically
used for determining the appropriate elevation and utilizing known
mapping products, FEMA staff would need relatively minimal additional
training to be able to use these products to determine the horizontal
extent of the FVA floodplain. In addition, the familiarity of the
process and products to be used in most projects would benefit
stakeholders by providing a consistent methodology which stakeholders
would similarly be able to use to determine where FEMA will require
application of the FFRMS. Additionally requiring the use of the FVA as
the minimum elevation for critical actions would be consistent with
FEMA's policy to encourage communities to adopt higher standards,
including freeboard standards, than the minimum floodplain management
criteria under the NFIP.\58\ Generally, adoption of a freeboard tends
to compensate for the many unknown factors that could contribute to
flood heights greater than the height calculated for a selected size
flood and floodway conditions, such as wave action, bridge openings,
and the hydrological effect of urbanization of the watershed.\59\
Consistent with FEMA's Community Rating System (CRS) policy, 1,380 of
the 1,740 CRS-participating localities have adopted freeboard
requirements that exceed current Federal standards within 50
states.\60\ FEMA supports that adoption by requiring that all of its
projects are consistent with more restrictive Federal, State, or local
floodplain management standards.\61\
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\57\ FEMA Flood Map Products. See <a href="https://www.fema.gov/flood-maps/products-tools/products">https://www.fema.gov/flood-maps/products-tools/products</a>. (Last accessed July 27, 2023).
\58\ See 44 CFR 60.1(d).
\59\ See 44 CFR 59.1.
\60\ See <a href="https://www.fema.gov/floodplain-management/community-rating-system#participating">https://www.fema.gov/floodplain-management/community-rating-system#participating</a> (last accessed July 12, 2023).
\61\ See 44 CFR 9.11(d)(6).
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The FVA, however, is not without challenges. First, while
application of the FVA relies on data that is more available and
readily accessible, it is not always the most suitable information to
inform flood risk. Although FVA uses a fixed freeboard value across the
nation, the FVA results in widely varying impacts to the current and
future risk to the project. In some locations, applying the FVA+3
reduces the chance of being impacted by current flooding conditions by
2 times, while in other cases applying the FVA might reduce such
chances by 10 times or more.\62\ This wide variation in risk reduction
using the FVA approach may result in underbuilding or overbuilding in
some areas. Without data narrowly tailored to the location's specific
risks, the FVA may result in building or protecting structures and
facilities to a higher or lower resilience standard than necessary to
reduce flood risks. This potential for overbuilding or underbuilding
may raise equity concerns for underserved communities seeking to
rebound quickly and effectively from a disaster. Those communities may
struggle to pay the additional costs required to build to a higher
resilience standard than might be necessary if FEMA were to instead
apply the CISA, thus unnecessarily delaying disaster recovery.\63\
Alternatively, communities may be more vulnerable to future flooding
and therefore repair expenses where building to a lower resilience
standard under the FVA than if FEMA were to apply CISA.
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\62\ See National Research Council, ``Risk Analysis and
Uncertainty in Flood Damage Reduction Studies,'' Table 7-1 pg. 144,
found at <a href="https://nap.nationalacademies.org/catalog/9971/risk-analysis-and-uncertainty-in-flood-damage-reduction-studies">https://nap.nationalacademies.org/catalog/9971/risk-analysis-and-uncertainty-in-flood-damage-reduction-studies</a> (last
accessed July 12, 2023). Note that when downloaded in portable
document format, table 7-1 is cut off. When viewed in the web
version, Column 14 provides the return period for a 3 foot freeboard
value.
\63\ See Jeremy Martinich, James Neumann, Lindsay, Ludwig, and
Lesley Jantarasami, ``Risks of sea level rise to disadvantaged
communities in the United States'' Mitig Adapt Strateg Glob Change
(2013) 18:169-185, found at <a href="https://link.springer.com/article/10.1007/s11027-011-9356-0">https://link.springer.com/article/10.1007/s11027-011-9356-0</a> (last accessed July 12, 2023).
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The 0.2PFA Considered. FEMA considered using the 0.2PFA, as the
horizontal extent of the 0.2PFA floodplain is already mapped in some
locations. Further, the 0.2PFA results in a much more consistent
reduction in the chances of being impacted by a flood for projects in
different areas. This is because the 0.2PFA floodplain and elevation
are calculated to have the same probability of occurrence
everywhere.\64\ The 0.2PFA may result in a higher elevation than the
FVA in some circumstances and lower elevations in other areas. FEMA is
challenged by the limited national availability of information on the
0.2 percent annual chance flood elevation and the additional costs
associated with producing this information where it is not yet
available. While most areas of the country have 1 percent annual chance
floodplain information and the necessary topographical information to
determine the horizontal extent under
[[Page 67883]]
the FVA, far fewer are mapped with 0.2 percent annual chance floodplain
information. This is because although all FEMA-mapped flood zones have
either detailed or approximate 1 percent annual chance floodplain
boundaries, FEMA estimates that only 20 percent of effective flood
zones have detailed floodplain boundaries of the 0.2 percent annual
chance floodplain.\65\ There is some additional 0.2 percent annual
chance floodplain mapping coverage available from FEMA products that
are in preliminary or draft stages, and from other Federal, state, and
local agencies. Data showing the boundaries and elevations for the 0.2
percent annual chance flood, however, is far less available than
information for the 1 percent annual chance flood. Additionally, in
coastal areas, the FFRMS requires Federal agencies to use the FVA as
the minimum elevation when not using the CISA, if the 0.2 percent
annual chance flood information depicted on FEMA's regulatory products
considers storm-surge hazards but not wave action, and wave action data
cannot be obtained from other sources.\66\ This requirement is
essential to ensure the effectiveness of this resilience standard. Only
some areas have 0.2PFA with wave action information. Finally, there
could also be equity concerns related to underbuilding or overbuilding
to this standard, as again communities seeking to rebound quickly and
effectively from a disaster may struggle to pay the additional costs
required to build to a higher resilience standard than might be
necessary if FEMA were to instead apply the CISA, thus unnecessarily
delaying disaster recovery. Given the challenges with information
availability, costs, and certainty for stakeholders, FEMA is not
proposing the 0.2PFA for all actions subject to the FFRMS. However, the
consistency provided by the 0.2PFA when the data is available provides
a check against the variability of the FVA approach, so FEMA plans to
use the two approaches together.
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\64\ See Guidelines at pg. 6.
\65\ FEMA riverine flood hazard data inventory information comes
from the Coordinated Needs Management Strategy dataset.
\66\ See Revised Guidelines at 57.
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The CISA Considered. Consistent with the Revised Guidelines, FEMA
is proposing the use of CISA as the preferred approach where data is
available and actionable for both critical and non-critical actions as
CISA uses a more site-specific approach to predict flood risk based on
future conditions. FEMA believes CISA has the potential to be the best
and most well-informed approach to building resilience in an equitable
manner and ensuring a reduction in disaster suffering. While all three
approaches consider the effects of changing conditions on current and
future flood risk, CISA is the only approach that uses climate science
data to determine the appropriate floodplain for actions subject to the
FFRMS. The FVA is a standard of protection set within a margin of error
and can result in underbuilding or overbuilding because the data is not
tailored to consider the flood risk in a specific location. The 0.2PFA
provides a consistent reduction in flood risk but the data is often not
available. Neither approach uses climate science to determine future
flood risk for specific locations. CISA is the only approach that
ensures projects are designed to meet current and future flood risks
unique to the location and thus ensures the best overall resilience,
cost effectiveness, and equity. CISA provides a forward-looking
assessment of flood risk based on likely or potential climate change
scenarios, regional climate factors, and an advanced scientific
understanding of these effects. CISA allows FEMA to make this
assessment specific to the communities involved and to tailor the
assessment to their specific resilience needs, factoring in cost-
effectiveness of resilience efforts and equity. As explained above, the
FVA approach presents a uniform solution that is not sufficiently
tailored to meet specific community needs and lacks full consideration
of future conditions. With a mandate to expand the floodplain and
elevate to a specific height without additional considerations, the FVA
approach can result in a community's project being built to a higher or
lower standard than necessary for the community's intended use and
result in additional expense to the community. Similarly, the 0.2PFA
may result in a community's project being built to a higher or lower
standard than necessary for the community's intended use and result in
additional expense to the community because the 0.2PFA lacks full
consideration of future conditions. Where available, CISA presents the
best data available on current and future conditions to help FEMA work
with communities to implement resilient, cost-effective projects.
For critical actions, FEMA is proposing to utilize elevations
determined by applying CISA so long as that elevation is at least the
elevation of the 0.2PFA. Under this proposal, FEMA could choose to
allow use of the CISA, even if the resulting elevation is lower than
the application of the FVA. This approach would give FEMA and its
recipients more flexibility in implementing the standard, would enable
FEMA and its recipients to build to an elevation based on the best
available science taking criticality into account, would ensure
adequate protection in those areas that are projected to experience
future flood elevations beyond those identified using the FVA or
0.2PFA, and would provide a pathway to relief for those areas that
experience declining flood risks.\67\
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\67\ While FEMA believes that the average flood risk will
generally continue to increase nationwide due to changing
conditions, there is considerable uncertainty in projecting flood
risk at more granular levels. Some areas may experience declines in
flood risk due to reduced rainfall or other unpredictable changes to
the floodplain.
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Similarly, for non-critical actions, FEMA is proposing to utilize
elevations determined by applying CISA so long as that elevation is at
least the elevation of the 1 percent annual chance flood elevation.
Combined, these options would balance the objectives that applicants
are building in an equitable manner to the most protective level based
on the best available, actionable hydrologic and hydraulic data and
methods that integrate current and future changes in flooding based on
climate science without overbuilding and would eliminate the potential
for a scenario where an applicant was allowed to build to a lower
elevation than previously required for critical and non-critical
actions under FEMA's current implementation of Executive Order
11988.\68\
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\68\ See 44 CFR 9.7(a)(1) detailing the current floodplain for
critical and non-critical actions.
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As explained above, FEMA understands that the availability and
actionability of data is a key factor in completing this analysis in a
consistent, equitable manner. Since the introduction of the CISA in
2015, additional data has become available to better inform CISA.\69\
FEMA believes data availability and actionability will continue to
advance for CISA in the future. However, as actionable climate data are
not currently available for all locations, FEMA is proposing the FVA
and 0.2PFA alternatives in the absence of actionable CISA data.
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\69\ See Fourth National Climate Assessment, Volume II, found at
<a href="https://nca2018.globalchange.gov">https://nca2018.globalchange.gov</a> (last accessed July 12, 2023) and
the ``Federal Flood Risk Management Standard Climate-Informed
Science Approach (CISA) State of the Science Report,'' found at
<a href="https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf</a> (last accessed Aug. 14, 2023).
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For coastal floodplains, one of the primary considerations
associated with CISA is determining what the projected
[[Page 67884]]
future sea level rise will be for the area in which the project will be
completed. There are currently multiple interagency reports and agency
tools that provide scenario-based projections of sea level rise for
coastal floodplains.\70\ Sea level rise projections are just one
potential factor in a climate-informed science approach. FEMA expects
that more data will be developed supporting broader-based application
of CISA as agencies implement the FFRMS and that this data will be
considered and incorporated into future updates of the FFRMS and FEMA's
implementation thereof. FEMA requests comment on the availability of
actionable, planning-scale and/or project-scale climate data with
respect to coastal and riverine floodplains.
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\70\ See generally ``Interagency Sea Level Rise Scenario Tool''
found at <a href="https://sealevel.nasa.gov/data_tools/18">https://sealevel.nasa.gov/data_tools/18</a> (last accessed July
12, 2023), ``2022 Sea Level Rise Technical Report'' found at <a href="https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-tech-report.html">https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-tech-report.html</a> (last accessed July 12, 2023), ``Global and Regional Sea
Level Rise Scenarios for the United States'' found at <a href="https://aambpublicoceanservice.blob.core.windows.net/oceanserviceprod/hazards/sealevelrise/noaa-nos-techrpt01-global-regional-SLR-scenarios-US.pdf">https://aambpublicoceanservice.blob.core.windows.net/oceanserviceprod/hazards/sealevelrise/noaa-nos-techrpt01-global-regional-SLR-scenarios-US.pdf</a> (last accessed July 12, 2023), ``Sea Level Rise
Viewer,'' found at <a href="https://coast.noaa.gov/digitalcoast/tools/slr.html">https://coast.noaa.gov/digitalcoast/tools/slr.html</a> (last accessed July 12, 2023).
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In addition to the data challenges, there are a number of factors
in deciding how to apply the CISA that might result in a decision-
making process that could unnecessarily delay recovery in the wake of a
disaster event for non-critical actions. The Revised Guidelines
recommend that the CISA methodology account for project-specific
factors such as the criticality of the action, the risk to which the
action will be exposed, the anticipated level of investment, and the
lifecycle of the action.\71\ For example, an applicant might consider a
construction project that is in a coastal floodplain and find that
there are multiple projections for what the sea level rise may be in 50
years. The most aggressive projection might indicate that the project
should be elevated 10 feet above the base flood elevation for a
critical action. However, the applicant may determine that this project
is not intended to be functional for 50 years, the action is not
critical, and justify a lesser projection based on criticality and
expected lifespan. FEMA anticipates these types of decisions may be
more standardized and accessible with a suite of Federal tools under
development to assist FEMA and stakeholders in establishing the CISA
floodplain. Further, FEMA's proposed approach focuses on leveraging the
best available data to inform flood risk, generally allowing
communities that have actionable data specific to their locations to
utilize that information in the 8-step process. FEMA requests comment
regarding how FEMA could implement the CISA using a publicly
accessible, standardized, predictable, flexible, and cost-effective
methodology. FEMA also seeks comment on whether the agency should
accept locally available CISA data and methods.
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\71\ See Revised Guidelines at 55.
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Other Options Considered. FEMA also considered whether it should
alter its proposal for preferring use of the CISA in relation to the
FVA (or 0.2PFA). FEMA specifically welcomes comment on each of the
potential alternatives outlined below. FEMA could choose a more
protective approach in which it would determine the elevations
established under CISA, FVA, and the 0.2PFA for critical actions and
only allow the applicant to use the highest of the three elevations.
This approach would ensure that applicants were protecting these
critical assets to the highest protective level. However, as explained
above, this approach may lead to overbuilding and thus not be the most
cost-effective or equitable approach. FEMA believes that its proposed
approach is sufficiently protective of critical action and would be
less expensive and complex to administer and implement than the
alternative approach described above as the alternative approach would
require a determination of elevation under all three approaches before
a project could proceed; nonetheless, FEMA welcomes comment on this
alternative approach.
Alternatively, FEMA could choose to require use of the highest
standard for all actions, regardless of criticality. As explained
above, while this approach would ensure that applicants were building
all actions to the most protective level, this approach may lead to
overbuilding and thus not be the most cost-effective, equitable
approach particularly for non-critical actions. FEMA believes that its
proposed approach is sufficiently protective of all actions and would
be less expensive and complex to administer and implement than the
alternative approach described above as this alternative approach would
always require a determination of elevation under all three approaches
before a project could proceed; nonetheless, FEMA welcomes comment on
this alternative approach.
FEMA also considered requiring the use of the 0.2PFA when CISA is
not available for non-critical actions rather than the lower of the
0.2PFA or FVA. As explained above, FEMA notes the challenges with the
limited national availability of information on the 0.2 percent annual
chance flood elevation and the additional costs associated with
producing this information when not yet available. Additionally, in
coastal areas, the FFRMS requires Federal agencies to use the FVA as
the minimum elevation when not using the CISA, if the 0.2 percent
annual chance flood information depicted on FEMA's regulatory products
considers storm-surge hazards but not wave action, and wave action data
cannot be obtained from other sources. This requirement is essential to
ensure the effectiveness of this resilience standard. Only some areas
have 0.2PFA with wave action information. Finally, there could also be
equity concerns related to underbuilding or overbuilding to this
standard, as again communities seeking to rebound quickly and
effectively from a disaster may struggle to pay the additional costs
required to build to a higher resilience standard than might be
necessary if FEMA were to instead apply the CISA, thus unnecessarily
delaying disaster recovery. Alternatively, communities may be more
vulnerable to future flooding and therefore repair expenses where
building to a lower resilience standard under the FVA than if FEMA were
to apply CISA. Given the challenges with information availability and
costs, FEMA is not proposing the 0.2PFA as the exclusive alternative
for non-critical actions when CISA is not available and actionable;
nonetheless, FEMA welcomes comment on this alternative approach.
Based on the foregoing, FEMA proposes to focus on the best
available and actionable information to inform current and future flood
risk, the type and criticality of the action, and equity when
determining the approach to utilize for the floodplain determination.
Where available and actionable, FEMA proposes to leverage the CISA to
establish the floodplain for both critical and non-critical actions.
Where the CISA is not available and actionable, the agency proposes to
use the lower of the FVA or 0.2PFA to establish the floodplain for non-
critical actions and the higher of the FVA floodplain or the 0.2PFA for
critical actions. Where the 0.2PFA is not available, or where wave
action is not addressed in the 0.2PFA, the FVA is proposed for critical
actions. This proposal balances flexibility with standardization, is
consistent with FEMA's encouragement to communities to adopt more
resilient floodplain management standards and reflects the priority
that FEMA places on ensuring adequate planning for critical actions
[[Page 67885]]
while balancing cost and equity considerations.
Requiring the use of the higher of the FVA floodplain or the 0.2PFA
floodplain for critical actions where CISA is not available and
actionable is consistent with the Revised Guidelines' direction that
agencies use higher standards for actions that they determine to be
critical actions.\72\ The continued emphasis on the importance of
making critical actions more resilient demonstrates an ongoing concern
that the risks of flooding for many critical actions cannot be
minimized without higher standards. The criticality of the action makes
the risk of flooding too great, and a higher resilience standard is
appropriate to best reduce that risk.
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\72\ See Guidelines at pg. 4.
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The Revised Guidelines further recognize the importance of
consideration of impacts to vulnerable populations, including those at
risk to impacts of flooding due to their location or because they are
overburdened, lack resources, or have less access to resources.\73\
Consistent with these concerns, FEMA's proposed supplementary policy
would require the lower of the FVA floodplain or the 0.2 PFA floodplain
for non-critical actions. FEMA believes the lower approach would help
reduce the burden on communities by addressing concerns related to
overbuilding, particularly in underserved communities seeking to
rebound quickly and effectively from a disaster. Selecting the lower
approach for non-critical actions will still result in a higher level
of resilience than the current requirements under part 9 while also
taking equity and cost-effectiveness considerations into account.
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\73\ See Guidelines at pg. 67.
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In addition to seeking comments on FEMA's proposed approach to
implementation generally, FEMA specifically seeks public comments on
the impact of the proposed elevation requirement \74\ on the
accessibility of covered facilities under the Fair Housing Act, the
Americans with Disabilities Act (ADA), the Architectural Barriers Act
(ABA), and Section 504 of the Rehabilitation Act of 1973. Elevating
buildings as a flood damage mitigation strategy could have a negative
impact on affected communities' disabled and elderly populations if
appropriate accommodations are not made. Also, even if the homes of
people with disabilities are elevated and made accessible, other
elevated single- and multi-family housing stock in the community may
become inaccessible if appropriate accommodations are not made. It is
crucial for community sustainability and integration of people with
disabilities that buildings impacted by FFRMS requirements be made to
comply with all accessibility requirements.
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\74\ Floodproofing of areas below the BFE in residential
buildings is generally not permitted under the NFIP unless
communities have been granted an exception to permit floodproofed
basements. See 44 CFR 60.3. The NFIP restriction against
floodproofing of residential structures reflects FEMA's longstanding
policy position that residential structures require a higher
standard of resilience due to the increased potential for loss of
human life. Floodproofing is also not recommended for residential
structures under other FEMA programs. See Hazard Mitigation
Assistance Technical Review Job Aid Series ``Dry Floodproofing
Technical Review,'' at pg. 7 found at <a href="https://www.fema.gov/sites/default/files/documents/fema_technical-job-aid-dry-floodproofing.pdf">https://www.fema.gov/sites/default/files/documents/fema_technical-job-aid-dry-floodproofing.pdf</a>
(last accessed July 12, 2023) (referencing ASCE24--Flood Resistant
Design and Construction Section 6.2, which limits the use of dry
floodproofing to non-residential structures and non-residential
areas of mixed-use structures located outside of High-Risk Flood
Hazard Areas, Coastal High Hazard Areas and Coastal A Zones).
Consistent with the NFIP regulations and other FEMA policies, the
agency generally does not fund floodproofing of residential
structures as a flood minimization measure to meet current 44 CFR
9.11 requirements.
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In light of the potential community impact of elevating housing and
other buildings, along with the challenges associated with the
traditional options for making elevated buildings accessible (i.e.,
elevators, lifts, and ramps), FEMA invites comments on strategies it
could employ to ensure accessibility requirements are met for
properties that would be impacted by this rulemaking. Additionally,
FEMA invites comments on the cost and benefits of such strategies,
including data that supports the costs and benefits.
Determining the Corresponding Horizontal Extent of the FFRMS
Floodplain. To make the floodplain determination and establish the
proper resilience standard under each approach, FEMA intends to
leverage its existing processes in each of its grant programs for
ensuring compliance with Executive Order 11988, as amended. Although
the specifics of the processes may vary somewhat from program to
program, FEMA generally uses the following steps. During the initial
stages of project development, FEMA informs applicants of all
applicable Federal, State, and local requirements which might apply to
their projects to include Executive Order 11988 and the 8-step process.
Once applicants have identified potential projects, FEMA works with
them to assess the proposed project location and determine whether it
is in or affects the floodplain and whether it is necessary to apply
the 8-step process. FEMA is available to assist applicants with the 8-
step process and reviews the project application to ensure that the
project scope of work is in compliance with Executive Order 11988
requirements. FEMA will continue to perform these steps in its
implementation of the FFRMS and Revised Guidelines. Once FEMA has made
the determination that an action is subject to the FFRMS that requires
a determination on which FFRMS approach to apply, the agency must then
decide where the floodplain lies. FEMA, in conjunction with other
Federal agencies, will work to maximize the availability of data
showing the horizontal extent of the expanded horizontal floodplain
that can be used for the CISA, the FVA, and the 0.2PFA for use on FFRMS
following the approach detailed in Sec. 9.7 below. Determination of
the FFRMS floodplain will generally require data on current conditions
and floodplains, future sea level rise or other changes expected to
impact future flood conditions, and ground elevations. All of these
data are relevant to determining additional areas that may be inundated
by increased flooding in the future. FEMA's approach to determining the
floodplain will also utilize available, actionable non-FEMA data from
other sources, including other Federal agencies, State, Tribal,
territorial, and local governments.
Establishing the FFRMS Resilience Standard Under Each Approach.
FFRMS is a resilience standard requiring Federal investments to be more
resilient against future flood conditions. FFRMS provides methods for
determining a flood elevation to use in minimizing current and future
flood risk for many actions in or affecting the floodplain,
particularly for elevation of structures. However, other types of
projects, including non-structure facilities, cannot reasonably be
elevated above the FFRMS flood elevation and must achieve resilience
through other minimization measures.\75\
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\75\ For example, see Low-Water Crossings: Geomorphic,
Biological, and Engineering Design Considerations at <a href="https://www.fs.usda.gov/t-d/pubs/pdf/LowWaterCrossings/Lo_pdf/1_Intro.pdf">https://www.fs.usda.gov/t-d/pubs/pdf/LowWaterCrossings/Lo_pdf/1_Intro.pdf</a>
(last accessed July 12, 2023) and Best Practice: Construction design
saves money, prevents future damage at <a href="https://www.fema.gov/blog/best-practice-construction-design-saves-money-prevents-future-damage">https://www.fema.gov/blog/best-practice-construction-design-saves-money-prevents-future-damage</a>
damage (last accessed July 12, 2023).
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The CISA is established using the best available, actionable
climate-informed science. The Revised Guidelines provide guidance to
agencies on the application of the CISA approach in coastal and
riverine areas.\76\ In particular, FEMA will use Appendix H of the
Revised Guidelines titled
[[Page 67886]]
``Climate-Informed Science Approach and Resources'' to guide its
decision-making.
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\76\ See the Revised Guidelines at Appendix H ``Climate-Informed
Science Approach and Resources.''
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FEMA recognizes that the CISA is a developing process and that
there is uncertainty in the considerations and factors that will come
up during an CISA analysis. As such, FEMA is not able to develop an
exhaustive set of regulatory criteria for determining whether a given
methodology is appropriate. However, FEMA recognizes that regulatory
transparency reduces uncertainty for its recipients, and it will
provide further guidance and information in the future, as appropriate,
as the agency's experience in implementing CISA grows.
Appendix H of the Revised Guidelines provides the following
criteria to define the CISA, which FEMA will consider when developing
further guidance and information: (1) Uses existing sound science and
engineering methods (e.g., hydrologic and hydraulic analysis and
methodologies) as have historically been used to implement Executive
Order 11988, but supplemented with best available climate-related
scientific information when appropriate (depending on the agency-
specific procedures and type of federal action); (2) is consistent with
the climate science and related information found in the latest
National Climate Assessment report or other best-available, actionable
science; (3) combines information from different disciplines (e.g., new
perspectives from the atmospheric sciences, oceanographic sciences,
coastal sciences, and hydrologic sciences in the context of climate
change) in addition to traditional science and engineering approaches;
and, (4) includes impacts from projected land cover and land use
changes (which may alter hydrology due to increased impervious
surface), long-term coastal and/or riverine erosion, and vertical land
movement (for determining local changes to sea level) expected over the
lifecycle of the action.
The FFRMS and Revised Guidelines describe the FVA elevation as the
addition of 2 or 3 feet to the 1 percent annual chance flood elevation.
FEMA would leverage the process described in proposed Sec. 9.7(c) to
search for the best available flood hazard information to establish the
1 percent annual chance flood elevation. This process recognizes that
information on flood hazards at proposed sites may range from detailed
data obtained from FEMA regulatory products to information which
approximates the geographic area of the floodplain, to areas with no
information. Where FEMA has issued a regulatory product, FEMA could
obtain the flood elevation from the regulatory product. FEMA may also
seek detailed information from the list of sources in proposed Sec.
9.7(c)(3)(i)-(x).
The 0.2PFA is the elevation of the 0.2 percent annual chance flood.
Where FEMA proposes to use this approach, the agency would follow the
same process to establish the 0.2 percent annual chance flood elevation
as it would to establish the 1 percent annual chance flood elevation,
utilizing the best available information. FEMA would first rely on the
0.2 percent annual chance flood elevation from the best available
information, including information reported in a FEMA regulatory
product, then seek information from additional sources, before finally
seeking the assistance of an engineer.
IV. Discussion of the Proposed Rule
As noted above, this proposed rule would implement Executive Order
11988, as amended, the FFRMS, and the Revised Guidelines as part of
FEMA's floodplain management regulations while also updating FEMA's 8-
step process. Below, we provide a brief summary of a number of the
major provisions of the proposed rule, followed by a section-by-section
description of these and other changes.
Major Provisions
Severability
FEMA proposes to amend Sec. 9.3 to remove the authorities section
as redundant, and to replace it with a severability section. In the
event that any portion of the proposed rule is declared invalid, FEMA
intends that the remaining provisions of 44 CFR part 9 be severable. A
severability clause is a standard legal provision. It indicates FEMA's
intent that if a court finds that a specific provision of a rule is
unlawful, the court should allow the remainder of the rule to survive.
Those provisions that are unaffected by a legal ruling can be
implemented by an agency without requiring a new round of rulemaking
simply to promulgate provisions that are not subject to a court ruling.
Conforming Changes to Definitions
FEMA proposes to amend Sec. 9.4 to reflect the new definitions
required by the FFRMS and Revised Guidelines while also updating other
definitions to clarify terms and leverage common usage that has evolved
since the regulation was issued. As noted above, the most significant
definitional change introduced by the FFRMS is the change to the
meaning of ``floodplain.'' As discussed in more detail below, in order
to harmonize this change in Sec. 9.4 FEMA proposes to revise a number
of existing definitions and remove other definitions. In addition, FEMA
proposes to revise the remaining sections of 44 CFR part 9 that refer
generally to the floodplain or refer specifically to the base (or 100-
year) floodplain or the 500-year floodplain, for clarity.
Distinction Between ``Actions Subject to the FFRMS'' and Other FEMA
Actions
As noted above, the first Step in the 8-step process is to
determine whether the proposed action is in the floodplain. Because
Executive Order 11988, as amended, and the FFRMS revise the definition
of the ``floodplain'' that must be used for ``Federally funded
projects,'' FEMA proposes to revise the first Step to require FEMA to
first determine whether the proposed action falls within the definition
of an ``action subject to the FFRMS.'' Under the proposed rule, if FEMA
determines that the action is a Federally Funded Project, i.e., if FEMA
determines that the action uses FEMA funds for new construction,
substantial improvement, or to address substantial damage to a
structure or facility, the FFRMS floodplain applies. If, on the other
hand, FEMA determines that the action does not fall under the
definition of an action subject to the FFRMS and if the action is
considered non-critical, the 1 percent annual chance floodplain
applies. If the action is considered critical, the 0.2 percent annual
chance floodplain applies.
Emphasis on Nature-Based Approaches
Executive Order 11988, as amended, requires that agencies use,
where possible, natural systems, ecosystem processes, and nature-based
approaches in the development of alternatives for Federal actions in
the floodplain. FEMA proposes to incorporate this requirement into
Sec. 9.9, which addresses the requirement to consider practicable
alternatives when determining whether to locate an action in the
floodplain. This requirement applies regardless of whether the proposed
action is a FEMA Federally Funded Project. To further explain this
requirement, FEMA proposes to add a definition of ``nature-based
approaches,'' meaning features designed to mimic natural processes and
provide specific services such as reducing flood risk and/or improving
water quality. FEMA also proposes to add a definition of ``natural
features'' meaning the characteristics of a particular environment that
are created by physical, geological, biological, and chemical processes
and exist in dynamic equilibrium.
[[Page 67887]]
The use of natural features and nature-based approaches in
consideration of alternatives within floodplains and wetlands is
consistent with the agency's priorities to promote the use of
nonstructural flood protection methods, minimize the impact of its
actions on the floodplain, and restore and preserve the natural and
beneficial values served by floodplains as well as preserve and enhance
the natural values of wetlands. In applying the 8-step process to its
actions, FEMA has integrated factors into its impact analysis and
minimization measures (Step 4 and Step 5) to identify those
opportunities for beneficial floodplain and wetland values, to include
natural values related factors that prioritize water resource values,
living resource values, and agricultural, aquacultural, and forestry
resource values. Applying natural features or nature-based approaches
as alternatives furthers the goals in 44 CFR part 9 and allows for FEMA
to further encourage those actions that increase the natural and
beneficial function of the floodplain.
Section-by-Section Analysis
A. Authority Citation
FEMA proposes to revise the authorities section to reflect
appropriate statutory and other authorities underlying the regulation.
B. Section 9.1--Purpose of Part
FEMA proposes to add references to the National Flood Insurance Act
of 1968, the Flood Disaster Protection Act of 1973, the National
Environmental Policy Act of 1969, and other relevant statutory
authorities, and to add ``as amended'' to reflect amendments made to
Executive Order 11988.
C. Section 9.2--Policy
FEMA proposes to add language to paragraph (b) to reflect the
policy that the United States must improve the resilience of
communities and Federal assets against the impacts of flooding based on
the best-available and actionable science. This statement of policy is
complementary to the longstanding goals of Executive Order 11988 to
reduce the risk of flood loss but reflects an updated Federal policy of
resilience and risk reduction that takes the effects of changing
conditions into account. FEMA also proposes to restructure paragraph
(b)(2) by adding Sec. Sec. 9.2(c) and 9.2(d). In Sec. 9.2(c), FEMA
proposes edits for clarity, while in Sec. 9.2(d), FEMA proposes to
reorder the agency's actions to prioritize minimizing the impact of
floods on human health, safety, and welfare in this part.
D. Section 9.3--Severability
In Section 9.3, FEMA proposes to remove the authorities as
redundant because the authorities are cited at the beginning of Part 9.
Instead, FEMA proposes to include a severability section.
FEMA believes that its authority to require an 8-step decision
making process and incorporate the FFRMS into it is well-supported in
law and policy and should be upheld in any legal challenge. However, in
the event that any portion of the proposed rule is declared invalid,
FEMA intends that the various provisions of 44 CFR part 9 be severable.
The provisions are not so interconnected that the rule's efficacy
depends on every one of them remaining in place--implementation of the
different provisions is sufficiently distinct that FEMA's aim of
updating the 8-step process and incorporating the FFRMS would still be
furthered by maintaining the other provisions. For example, if a court
were to find unlawful FEMA's inclusion of the FFRMS approaches in Sec.
9.7(c), FEMA intends to retain the inclusion of consideration of
nature-based approaches in the appropriate steps of the 8-step decision
making process and all other amendments to the 44 CFR part 9 not
affected by the court decision. Similarly, if a court were to find
unlawful FEMA's chosen approach in the proposed policy, FEMA intends to
retain the regulatory changes implementing the FFRMS.
E. Section 9.4--Definitions
In Section 9.4, FEMA proposes to add terms for ``0.2 Percent Annual
Chance Flood Elevation,'' ``0.2 Percent Annual Chance Floodplain,'' ``1
Percent Annual Chance Flood Elevation,'' ``1 Percent Annual Chance
Floodplain,'' ``Action Subject to the FFRMS,'' ``Base Flood
Elevation,'' ``Federal Flood Risk Management Standard (FFRMS),''
``Federal Flood Risk Management Standard Floodplain,'' ``Federally
Funded Project,'' ``FEMA Resilience,'' ``National Security,'' ``Nature-
Based Approaches,'' ``Natural and Beneficial Values of Floodplains and
Wetlands,'' ``Natural Features,'' and ``Support of Floodplain and
Wetland Development.'' FEMA proposes to remove the definitions of
``Base Flood,'' ``Base Floodplain,'' ``Five Hundred Year Floodplain,''
``Flood Fringe,'' ``Flood Hazard Boundary Map,'' ``Flood Insurance Rate
Map,'' ``Flood Insurance Study,'' ``Mitigation Directorate,'' ``Natural
Values of Floodplains and Wetlands'', ``New Construction in Wetlands,''
and ``Support.'' Lastly, FEMA proposes to revise the definitions of
``Coastal High Hazard Area,'' ``Critical Action,'' ``Emergency
Action,'' ``Flood,'' ``Floodplain,'' ``Functionally Dependent Use,''
``Mitigation,'' ``New Construction,'' ``Orders,'' ``Practicable,''
``Regulatory Floodway,'' ``Restore,'' ``Structures,'' ``Substantial
Improvement,'' and ``Wetlands.''
0.2 Percent Annual Chance Flood Elevation. FEMA proposes to define
the term ``0.2 percent annual chance flood elevation'' to mean the
elevation to which floodwater is anticipated to rise during the 0.2
percent annual chance flood (also known as the 500-year flood). FEMA
generally proposes to use the term ``0.2 percent annual chance flood''
and discontinue using that term interchangeably with the term ``500-
year flood.'' The term ``500-year flood'' can cause confusion as it
could be interpreted to mean that the area will only flood once every
500 years, instead of reflecting its true meaning, which is the annual
probability of flooding in the area. FEMA is proposing to update other
definitions that reference the term ``500-year flood'' and related
terms where appropriate to ensure an effective long-term transition
away from this terminology.
0.2 Percent Annual Chance Floodplain. FEMA proposes to define the
term ``0.2 percent annual chance floodplain'' to mean the area subject
to flooding by the 0.2 percent annual chance flood (also known as the
500-year floodplain).
1 Percent Annual Chance Flood Elevation. FEMA proposes to refer to
the definition of ``Base Flood Elevation'' to define this term to help
transition to this terminology going forward and more accurately
reflect the flood probability associated with that elevation.
1 Percent Annual Chance Floodplain. FEMA proposes to define the
term ``1 percent annual chance floodplain'' to mean the area subject to
flooding by the 1 percent annual chance flood (also known as the 100-
year floodplain or base floodplain). This definition would describe the
minimum area that FEMA looks at when it determines whether an action
will take place in a floodplain under this part.
Action. FEMA proposes to remove the word ``action'' from the
definition of ``Action'' because including the term being defined in
the definition creates confusion and redundancy.\77\
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\77\ See Office of the Federal Register, Writing Resources for
Federal Agencies, Regulatory Drafting Guide, Definitions found at
<a href="https://www.archives.gov/federal-register/write/legal-docs/definitions.html#">https://www.archives.gov/federal-register/write/legal-docs/definitions.html#</a>;:~:text=If%20a%20term%20is%20used%20only%20once%20o
r,term%20being%20defined%20as%20part%20of%20the%20definition. (last
accessed July 12, 2023).
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[[Page 67888]]
Actions Affecting or Affected by Floodplains or Wetlands. FEMA
proposes edits to these definitions consistent with formatting
requirements.
Action Subject to the FFRMS. FEMA proposes to define an action
subject to the FFRMS as an action where FEMA funds are used for new
construction, substantial improvement, or to address substantial damage
to a structure or facility. This term would define those actions
subject to the FFRMS listed in the Revised Guidelines as a ``Federally
Funded Project'' by narrowing the term to apply only to actions that
use FEMA funds for these specific activities.
Base Flood. FEMA proposes to remove the definition of the ``base
flood'' as FEMA proposes to incorporate it into the definition of
``flood or flooding.''
Base Floodplain. FEMA also proposes to remove the definition of
``base floodplain'' as FEMA proses to incorporate it into the
definition of ``1 percent annual chance floodplain.''
Base Flood Elevation. FEMA proposes to define the term ``base flood
elevation'' to mean the elevation to which floodwater is anticipated to
rise during the 1 percent annual chance flood (also known as the base
or 100-year flood). The terms ``base flood elevation,'' ``1 percent
annual chance flood elevation,'' and ``100-year flood elevation'' are
synonymous and are used interchangeably. FEMA proposes to incorporate
the explanation from the current definition of ``base flood'' about how
the term is used in the NFIP to indicate the minimum level of flooding
to be used by a community in the community's floodplain management
regulations. The elevation indicates how high to elevate a structure to
protect it from the risk of flooding in a 1 percent annual chance
flood.
Coastal High Hazard Area. FEMA proposes to revise the definition of
``coastal high hazard area'' to mean an area of flood hazard extending
from offshore to the inland limit of a primary frontal dune along an
open coast and any other area subject to high velocity wave action from
storms or seismic sources. FEMA is proposing to change this definition
to more closely reflect the term as used in the NFIP and avoid the use
of specific mapping zones for ease of use and reference for
stakeholders.
Critical Action. FEMA proposes to revise the definition of
``critical action'' to mean any activity for which even a slight chance
of flooding is too great. This revised definition is consistent with
the definition of this term in the Orders and Revised Guidelines the
agency is implementing with this rule. Additionally, FEMA proposes to
remove the requirement that the minimum floodplain of concern for
critical actions is the 500-year floodplain. There would no longer be a
set requirement that an applicant use a particular approach to
establishing the floodplain when the project is a critical action.
Instead, FEMA and the applicant would utilize the floodplain
established by part 9. FEMA would be required to determine whether the
project meets the new definition of ``action subject to the FFRMS'' in
Sec. 9.4. If the project is an action subject to the FFRMS, then FEMA
would establish the floodplain by using one of the approaches (which
require the applicant to consider whether an action is a critical
action) explained in proposed Sec. 9.7(c). If the project is not an
action subject to the FFRMS, then FEMA would use, at a minimum, the 1
percent annual chance floodplain for non-critical actions and the 0.2
percent annual chance floodplain for critical actions. FEMA further
proposes to revise this definition with updated formatting.
Emergency Actions. The current definition of ``emergency actions''
does not correctly cite to the appropriate sections of statutory
authority. FEMA proposes to correct citations to the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (Stafford Act) and remove
FEMA regulations citations.
Federal Flood Risk Management Standard (FFRMS). FEMA proposes to
add a definition of ``FFRMS,'' which is the Federal flood risk
management standard to be incorporated into existing processes used to
implement Executive Order 11988, as amended. FEMA proposes to add a
definition for FFRMS because this rule proposes to implement it and
therefore refers to it throughout the proposed changes to part 9.
Federal Flood Risk Management Standard (FFRMS) Floodplain. FEMA
proposes to define the ``FFRMS floodplain'' generally consistent with
the definition in the Order and Revised Guidelines being implemented,
which is the floodplain that is established using one of the approaches
described in proposed Sec. 9.7(c). The four approaches detailed in
proposed Sec. 9.7(c) include CISA, FVA, 0.2PFA, and the elevation and
flood hazard area that result from using any other method identified in
an update to the FFRMS.
Federally Funded Project. FEMA proposes to add a definition of
``Federally Funded Project'' to reference the definition of ``action
subject to the FFRMS.'' FEMA is incorporating this definition for
consistency with the Revised Guidelines.
Federal Insurance Administration. FEMA proposes to remove the
definition of the ``Federal Insurance Administration'' as it is now
included in the definition of ``FEMA Resilience.''
FEMA Resilience. FEMA proposes to delete the definition of Federal
Insurance Administration and the definition of Mitigation Directorate
and add the definition of FEMA Resilience to reflect the current
organizational structure within the agency.
Five Hundred Year Floodplain. FEMA proposes to remove the
definition of the five-hundred-year floodplain as a standalone term and
designated floodplain and to instead substitute the term ``0.2 percent
annual chance floodplain.'' The 0.2 percent annual chance floodplain is
the floodplain covering an area where the chance of flood is 0.2
percent in any given year.
Flood or Flooding. FEMA proposes to add definitions of the ``0.2
Percent Annual Chance Flood,'' and the ``1 Percent Annual Chance
Flood'' to the definition of flood to incorporate all flood definitions
in one location. FEMA would further clarify the use of the 500-year
flood as interchangeable with the 0.2 percent annual chance flood, and
the base flood or 100-year flood as interchangeable with the 1 percent
annual chance flood.
Flood Fringe. FEMA proposes to eliminate this definition as the
term is no longer used in the regulatory text.
Flood Hazard Boundary Map (FHBM). FEMA proposes to eliminate this
definition as the term is no longer used in the regulatory text. FEMA
offers a range of flood risk products under the NFIP and categorizes
these products as ``regulatory'' or ``non-regulatory.'' Regulatory
flood risk products are created subject to procedural due process
requirements, contain basic flood information, and are used for
official actions such as identifying properties subject to mandatory
flood insurance purchase requirements, or enforcing minimum building
standards for construction in a floodplain in NFIP participating
communities.\78\ Non-regulatory flood risk products are not tied to
mandatory enforcement or compliance requirements for the NFIP
[[Page 67889]]
and expand upon basic flood hazard information. References to FEMA's
regulatory products under the NFIP, such as the Flood Hazard Boundary
Map, Flood Insurance Rate Map, and Flood Insurance Study are being
eliminated in the proposed regulatory text to allow flexibility to
encompass the full range of NFIP products (both regulatory and non-
regulatory) available for use with the 8-step process. For example, the
existing section 9.7(c) prescribes a sequence of steps to obtaining the
floodplain, flood elevation, and other information needed. Current
section 9.7(c)(i) only includes use of the FIRM, FBFM and FIS if they
exist whereas 9.7(c)(ii) includes options to seek data from other
sources if the available NFIP maps do not provide the necessary
information. There are cases where a FIRM, FBFM, or FIS exist for the
location, but do not provide the necessary information to determine the
relevant floodplain and/or elevation. This section is being proposed to
be rewritten to allow use of other data sources whenever the
information is not available on the NFIP maps or when better
information is available.
---------------------------------------------------------------------------
\78\ See ``Flood Risk Products: Using Flood Risk Products in
Hazard Mitigation Plans,'' found at <a href="https://www.fema.gov/sites/default/files/2020-07/fema_using-flood-risk-products_guide.pdf">https://www.fema.gov/sites/default/files/2020-07/fema_using-flood-risk-products_guide.pdf</a> (last
accessed July 12, 2023).
---------------------------------------------------------------------------
Streamlining the references to FEMA's regulatory products would
also align the regulatory language with the core statutory language
that authorizes FEMA to publish determinations of Special Flood Hazard
Areas (SFHAs) and flood elevations.\79\ These determinations are
published in several different products. Rather than itemize and
attempt to prioritize the different products, the proposed text would
focus instead on whether official determinations of the SFHA or flood
elevations are available.
---------------------------------------------------------------------------
\79\ Section 201 of the Flood Disaster Protection Act of 1973,
42 U.S.C. 4105 and the National Flood Insurance Act of 1968, as
amended, 42 U.S.C. 4001 et seq. Specifically, 42 U.S.C. 4101(a)
states that the Administrator is authorized to consult with other
Federal agencies, State or local government agencies, or contract to
obtain information ``so that he may identify and publish information
with respect to all flood plain areas, including coastal areas
located in the United States, which has special flood hazards. . .
.'' Further, 42 U.S.C. 4104(a) states ``In establishing projected
flood elevations for land use purposes with respect to any community
pursuant to section 4102 of this title, the Director shall first
propose such determinations by publication for comment in the
Federal Register . . . .''
---------------------------------------------------------------------------
Flood Insurance Rate Map (FIRM). FEMA proposes to eliminate this
definition as the term is no longer used in the regulatory text. As
explained above, references to FEMA's regulatory products are being
eliminated in the proposed regulatory text to allow flexibility to
encompass the full range of NFIP products available for use with the 8-
step process. There are cases where a FIRM, FBFM, or FIS exist for the
location, but do not provide the necessary information to determine the
relevant floodplain and/or elevation. This section is being proposed to
be rewritten to allow use of other data sources whenever the
information is not available on the NFIP maps or when better
information is available.
Flood Insurance Study (FIS). FEMA proposes to eliminate this
definition as the term is no longer used in the regulatory text. As
explained above, references to FEMA's regulatory products are being
eliminated in the proposed regulatory text to allow flexibility to
encompass the full range of NFIP products available for use with the 8-
step process. There are cases where a FIRM, FBFM, or FIS exist for the
location, but do not provide the necessary information to determine the
relevant floodplain and/or elevation. This section is being proposed to
be rewritten to allow use of other data sources whenever the
information is not available on the NFIP maps or when better
information is available.
Floodplain. FEMA currently defines ``floodplain'' as the lowland
and relatively flat areas adjoining inland and coastal waters
including, at a minimum, that area subject to a 1 percent or greater
chance of flooding in any given year. FEMA proposes to revise the
definition to mean any land area that is subject to flooding to more
accurately reflect the broad definition of this term. The term
``floodplain'' refers to geographic features with undefined boundaries
and the proposed revised regulation will establish a specific
floodplain through the process described in proposed Sec. 9.7(c).
The current definition also states that wherever the term
``floodplain'' appears in part 9, if a critical action is involved,
``floodplain'' means the area subject to inundation from a flood having
a 0.2 percent chance of occurring in any given year (500-year
floodplain). FEMA proposes to remove this provision from the definition
of floodplain because there is no longer a set requirement that an
applicant use a particular approach to establishing the floodplain when
there is a critical action. Instead, FEMA and the applicant must follow
the sequence described in Sec. 9.7(c) when making the floodplain
determination. FEMA must determine whether the project meets the new
definition of an ``action subject to the FFRMS'' in Sec. 9.4. If the
project is an action subject to the FFRMS, then FEMA must establish the
floodplain by using one of the FFRMS approaches (which require the
applicant to consider whether an action is a critical action). If the
project does not meet the definition of an action subject to the FFRMS
(i.e., the project is not ``new construction, substantial improvement,
or repairs to address substantial damage to a structure or facility''),
then FEMA must use, at a minimum, the 1 percent annual chance
floodplain for non-critical actions and the 0.2 percent annual chance
floodplain for critical actions.
FEMA proposes to add that the floodplain may be more specifically
categorized as the 1 percent annual chance floodplain, the 0.2 percent
annual chance floodplain, or the FFRMS floodplain (as defined above).
``Floodplain'' is a flexible, general term, but in establishing the
correct floodplain to use, it will be necessary to determine whether
the action is an action subject to the FFRMS and whether it is a
critical action.
Functionally Dependent Use. FEMA proposes to remove references to
examples in this definition to reduce confusion around the definition
and avoid any misinterpretation that the term's usage is limited to the
current examples. FEMA plans to provide more specific, relevant
examples in guidance to better assist stakeholders with particularly
nuanced situations.
Mitigation. FEMA proposes to remove the term ``all'' from the
definition of mitigation as mitigation would be defined more broadly
consistent with the requirements of the Orders and Revised Guidelines
being implemented. By removing ``all,'' FEMA would clarify that the
agency's goal, consistent with current law and Executive Orders 11988,
as amended, and 11990 is to minimize the potentially adverse impacts of
the proposed action to the extent possible, including consideration of
practicality, rather than to take all mitigation actions.
Mitigation Directorate. FEMA proposes to remove the definition of
the ``Mitigation Directorate'' as it is now included in the definition
of ``FEMA Resilience.''
National Security. FEMA proposes to add a definition for ``national
security'' consistent with the definition used in the Revised
Guidelines. The proposed definition would define national security as a
condition that is provided by either (1) a military or defense
advantage over any foreign nation or group of nations; (2) a favorable
foreign relations position; or (3) a defense posture capable of
successfully resisting hostile or destructive action from within or
without, overt or covert. Incorporating this definition would help
stakeholders better understand the 8-
[[Page 67890]]
step process and the actions to which each Step applies.
Nature-Based Approaches. FEMA proposes to add a definition of
``nature-based approaches.'' Executive Order 11988, as amended, now
contains a provision requiring agencies consider nature-based
approaches, where possible, in developing alternatives for
consideration to meet the purpose of a proposed action within a
floodplain or wetland and this term has not previously been defined.
FEMA proposes to define nature-based approaches as the features
(sometimes referred to as ``green infrastructure'') designed to mimic
natural processes and provide specific services such as reducing flood
risk and/or improving water quality. Nature-based approaches are
created by human design (in concert with and to accommodate natural
processes) and generally, but not always, must be maintained in order
to reliably provide the intended level of service. Nature-based
approaches and nature-based solutions may include, for example, green
roofs, or downspout disconnection that reroutes drainage pipes to rain
barrels, cisterns, or permeable areas instead of the storm sewer. The
proposed definition mirrors the language of the Revised Guidelines.
Natural and Beneficial Values of Floodplains and Wetlands. FEMA
proposes to remove the definition of ``natural values of floodplains
and wetlands'' and add the definition of ``natural and beneficial
values of floodplains and wetlands'' to mean the features or resources
that provide environmental and societal benefits. FEMA proposes adding
additional clarification that water and biological resources are often
referred to as ``natural functions of floodplains and wetlands'' and
also proposes to incorporate additional clarifying examples of water
resource values, living resource values, cultural resource values, and
cultivated resource values for more consistency with the Revised
Guidelines and Executive Order 11988, as amended.
Natural Features. FEMA proposes to add a definition of ``natural
features'' to mean characteristics of a particular environment that are
created by physical, geological, biological, and chemical processes and
exist in dynamic equilibrium. Consistent with the Revised Guidelines,
natural features are self-sustaining parts of the landscape that
require little or no maintenance to continue providing their ecosystem
services (functions).
New Construction. FEMA proposes to remove the parenthetical
``including the placement of a mobile home'' from the definition of new
construction and instead add that ``new construction'' includes
permanent installation of temporary housing units. This change narrows
the scope of FFRMS applicability to only those temporary housing units
that FEMA permanently installs rather than all placements of temporary
housing units. The temporary nature of initial housing unit placements
generally does not provide an opportunity to improve community
resilience or floodplain management long term, which is the intent of
the FFRMS. Prohibiting placement of temporary housing in the FFRMS
floodplain may result in the temporary housing of individuals and
families many miles from their homes, which is not practicable.
Finally, it would not always be feasible to elevate these units to the
required flood elevation when placed for temporary housing. Given these
concerns, FEMA seeks to apply the FFRMS requirements only to those
temporary housing units that the agency permanently installs, becoming
permanent housing solutions rather than all temporary housing units
placed by the agency. FEMA further proposes to delete the current
definition of ``new construction in wetlands'' and incorporate it into
the definition of ``new construction'' to reduce confusion and
eliminate references to specific dates that no longer apply to current
and future actions subject to part 9. The application of the FFRMS is
required for any action which meets the definition of an ``action
subject to the FFRMS.'' ``Action subject to the FFRMS'' is defined as
an action where FEMA funds are used for new construction, substantial
improvement, or to address substantial damage to a structure or
facility. If FEMA continued to define the placement of a mobile home as
``new construction,'' it would be required to apply the FFRMS to any
placement of a temporary housing unit. As described further in the
discussion of Sec. 9.13, FEMA does not intend to require the
application of the FFRMS in the placement of temporary housing units
for the purpose of temporary housing.
Orders. FEMA proposes to revise the definition of ``orders'' to
include amendments made to Executive Order 11988.
Practicable. FEMA proposes to revise the definition of
``practicable'' to update the factors considered in the practicability
analysis for consistency with the existing regulatory text and the
Revised Guidelines, and for clarity. Specifically, FEMA proposes to add
``natural'' to clarify the environmental factor. FEMA also proposes to
incorporate into the definition of ``practicable'' references to social
concerns, economic aspects, and legal constraints. These concepts are
currently included in the description of practicability analysis in
Sec. 9.11. As discussed below, the ``economic aspects'' refers to,
among other things, cost and technology factors and to add ``legal
constraints'' and ``agency authorities'' to specifically reflect
additional constraints on the agency's ability to act as a factor in
the practicability analysis. By making these changes, FEMA would define
practicability in a manner that is generally consistent with the long-
standing regulatory text while incorporating updates for additional
clarity and consistency with the Revised Guidelines.
Regulatory Floodway. FEMA proposes to clarify the definition of
``regulatory floodway.'' FEMA proposes to eliminate the reference to a
specific amount set by the NFIP and instead define the term to mean the
area regulated by Federal, State, or local requirements to provide for
the discharge of the base flood so that the cumulative rise in water
surface is no more than a designated amount above the base flood
elevation. These edits more accurately encompass situations where
communities have adopted more restrictive floodway definitions than the
minimum specified by the NFIP. The changes are intended to help
stakeholders better understand what a regulatory floodway is and how it
is determined without tying the term to a specific amount that can
change under the NFIP.
Restore. FEMA proposes to update the definition of ``restore'' to
mean to reestablish a setting or environment in which the natural
functions of the floodplain can operate. This change eliminates the
redundancy of requiring the floodplain to ``again'' operate.
Structures. FEMA proposes to update the definition of
``structures'' to require that the buildings be both walled and roofed
rather than walled or roofed to be considered a ``structure,''
consistent with the definition of ``structure'' in 44 CFR Subchapter B,
Insurance and Hazard Mitigation.\80\ This change is also consistent
with current FEMA practice under the NFIP which designates areas that
are not both walled and roofed as facilities.\81\ Additionally, FEMA is
proposing a change from the term ``mobile homes'' to ``temporary
housing units'' to reflect a range of housing units the agency may
provide after a disaster while also referencing ``manufactured
housing'' to ensure that the public
[[Page 67891]]
understand that temporary housing units are regulated as manufactured
housing in the NFIP.
---------------------------------------------------------------------------
\80\ See 44 CFR 59.1.
\81\ Id.
---------------------------------------------------------------------------
Substantial Improvement. FEMA proposes to update the reference to
the Stafford Act because the citation is outdated in the current
definition. FEMA also proposes to add a sentence stating that
substantial improvement includes work to address substantial damage to
a structure or facility. This change is for clarity and for consistency
with part 59.
Support. FEMA proposes to eliminate the definition of ``support''
and replace it with a new definition of ``support of floodplain and
wetland development'' to further clarify the term and ensure
consistency of its usage in part 9.
Support of Floodplain and Wetland Development. FEMA proposes to
define this term to mean to, directly or indirectly, encourage, allow,
serve, or otherwise facilitate development in floodplains or wetlands.
Development means any man-made change to improved or unimproved real
estate, including but not limited to, new construction; mining;
dredging; filling; grading; paving; excavation or drilling operations;
or storage of equipment or materials. Direct support results from
actions within floodplains or wetlands, and indirect support results
from actions outside of floodplains or wetlands. By providing this
clarifying definition, FEMA would help eliminate confusion regarding
the use of the term ``support'' in the regulatory text and ensure that
actions taken under part 9 are done with the intent not to support
floodplain and wetland development consistent with Executive Order
11988, as amended, and Executive Order 11990.
Wetlands. FEMA proposes minor edits for clarity and to delete
references to the U.S. Fish and Wildlife Service publication in the
current definition of ``wetlands'' as the reference is now out of date
and rather generally reference the definition utilized by that agency
for consistency in the future.
F. Section 9.5--Scope
FEMA proposes to add an effective date provision to this section,
indicating that the revisions proposed to part 9, which implement the
changes required by Executive Order 11988, as amended, the FFRMS, and
Revised Guidelines, would apply to new actions for which assistance is
made available pursuant to declarations under the Stafford Act that are
commenced on or after the effective date of the final rule, and new
actions for which assistance is made available pursuant to notices of
funding opportunity that publish on or after the effective date of the
final rule. This is to clarify that current part 9, including use of
the 1 percent annual chance floodplain (or 0.2 percent annual chance
floodplain for critical actions), would still apply to actions relating
to declarations and funding opportunities issued prior to the effective
date. Only new actions would be subject to revised part 9 so that the
changes would not be applied to projects which have already been
reviewed for compliance with Executive Order 11988 and may have
incurred design expenses to meet the current floodplain management
standards. Any actions associated with declarations under the Stafford
Act that begin on or after the effective date of the final rule or any
actions for which the notice of funding opportunity publishes on or
after the effective date of the final rule would be subject to revised
part 9, including the changes required under Executive Order 11988, as
amended, the FFRMS, and the Revised Guidelines, such as determining the
floodplain for the action and requiring the use of nature-based
approaches, where possible, to mitigate harm when development in the
floodplain is not avoidable. In paragraph 9.5(b)(1), FEMA proposes to
add ``as amended'' to reflect amendments to Executive Order 11988.
FEMA proposes to update the citations to the Stafford Act sections
and references to organizations and titles in paragraphs (c)-(g) as
they are not current and reorganize the section for clarity and
readability. FEMA proposes to eliminate current paragraph (c)(3) as
unemployment assistance would not constitute an ``action'' under this
part (see Sec. 9.4). FEMA proposes to revise current paragraph (c)(6)
to clarify that actions involving fire management assistance that
include hazard mitigation assistance under sections 404 and 420(d) of
the Stafford Act are subject to the 8-step process. Similar to the
revision to Sec. 9.7(c)(1), FEMA seeks to clarify where some actions
may still be required to complete the 8-step process. FEMA also
proposes to update current paragraph (c)(8) as it refers to a defunct
title for the Individuals and Households Program and includes programs
that no longer exist and restructure the paragraph to reflect current
categories of assistance under this program that are not subject to the
8-step process. FEMA proposes to further update this section by
removing private bridges from the 8-step process consistent with other
exceptions to that process in the Individual Assistance program in
current paragraph (c)(8)(i). This change aligns with the existing
exemptions for all other forms of home repair and replacement under
section 408 of the Stafford Act. FEMA will only provide funding for
privately-owned access bridges damaged as a result of a Presidentially-
declared disaster in cases where a FEMA inspection determines repairs
are necessary to provide drivable access to a primary residence.\82\ In
addition to this requirement, FEMA will only provide funding when at
least one of the following additional conditions exist: (1) the bridge
provides the only access to the property; (2) the home cannot be
accessed due to damage caused to other infrastructure; or (3) the
safety of the occupants or residence would be adversely affected
because emergency services and equipment could not reach the
residence.\83\ As these private bridge projects are small in scale and
subject to local review and permitting requirements that otherwise
consider local floodplain management concerns, FEMA believes they are
unlikely to result in significant impacts to the floodplain and
requiring the 8-step process for these projects would not necessarily
result in improved community resiliency, a key goal of the FFRMS. FEMA,
however, seeks comment on whether removing private bridge projects from
the 8-step process would adversely impact the floodplain.
---------------------------------------------------------------------------
\82\ See Individual Assistance Program and Policy Guide Version
1.1 found at <a href="https://www.fema.gov/assistance/individual/policy-guidance-and-fact-sheets">https://www.fema.gov/assistance/individual/policy-guidance-and-fact-sheets</a> (last accessed July 12, 2023) pg. 89.
\83\ See Individual Assistance Program and Policy Guide Version
1.1 found at <a href="https://www.fema.gov/assistance/individual/policy-guidance-and-fact-sheets">https://www.fema.gov/assistance/individual/policy-guidance-and-fact-sheets</a> (last accessed July 12, 2023) pg. 89.
---------------------------------------------------------------------------
FEMA also proposes to revise current Sec. 9.5(c)(12) to further
provide that debris clearance and removal under section 502 of the
Stafford Act is not subject to the 8-step process. FEMA is also
proposing to add a citation to section 407 of the Stafford Act to
accompany the reference to non-emergency disposal of debris in this
same provision. In current paragraph (c)(13), FEMA proposes to make
revisions to update the current monetary thresholds from $5,000 to
$18,000 for actions under sections 406 and 407 of the Stafford Act.\84\
This change would reflect the current value of the existing threshold
dollar amount, which was set in 1980.\85\ Additionally, FEMA proposes
language to require adjustment of the threshold based on the Consumer
Price Index for All Urban Consumers published by the
[[Page 67892]]
Department of Labor.\86\ This proposed language provides for future
changes to the applicability of the 8-step process based on
inflationary increases in the cost of actions and helps ensure
equitable, cost-effective outcomes by limiting this process to actions
of a higher dollar amount. Note FEMA is also proposing to add the
Stafford Act sections 406 and 407 for repairs or replacements to Sec.
9.5(c). FEMA's current and proposed dollar value thresholds to
determine the applicability of the 8-step decision-making process to
certain FEMA actions are updated below as follows:
---------------------------------------------------------------------------
\84\ Section 406 of the Stafford Act involves the repair,
restoration, and replacement of damaged facilities while section 407
relates to debris removal.
\85\ See 45 FR at 59529.
\86\ The U.S. Department of Labor publishes the Consumer Price
Index for All Urban Consumers at <a href="https://www.bls.gov/cpi/">https://www.bls.gov/cpi/</a>. A
calculation to determine the impact of CPI-U increases can be made
at <a href="https://www.bls.gov/data/inflation_calculator.htm">https://www.bls.gov/data/inflation_calculator.htm</a>.
Table 4--FEMA's Current and Proposed Dollar Value Threshold To Determine
the Applicability of the 8-Step Decision-Making Process
------------------------------------------------------------------------
Current threshold Proposed threshold
------------------------------------------------------------------------
Exempt from the 8-step decision Projects under Projects under
making process. $5,000. $18,000.
Minimal 8-step decision making Projects between Projects between
process (subject to steps 1, 4, $5,000 and $18,000 and
5, and 8). $25,000. $91,000.
Abbreviated 8-step decision Projects above Projects above
making process (subject to $25,000 and up to $91,000 and up to
steps 1, 2, 4, 5, and 8). $100,000. $364,000.
Full 8-step decision making Projects above Projects above
process. $100,000. $364,000.
------------------------------------------------------------------------
FEMA proposes to relocate current paragraph (g) and redesignate it
as paragraph (d), restructuring current paragraphs (d)-(f) to (e)-(g)
respectively. FEMA believes this restructuring will make the section
more readable and easier for stakeholders to understand. FEMA is also
proposing to revise the structure and language in current paragraphs
(d) and (g) to better explain the exceptions to the full 8-step process
detailed in each paragraph. FEMA proposes to update the current
monetary thresholds set in current paragraphs (d) and (g) similar to
changes proposed to current paragraph 9.5(c)(13), described above, to
reflect the current value of these dollar amounts and also require
future changes to these amounts based on the Consumer Price Index for
All Urban Consumers as published by the Department of Labor. As
explained above, FEMA believes these edits would result in limiting
applicability of the 8-step process appropriately based on inflationary
increases in the cost of actions. FEMA is proposing the increase and
future updates as smaller projects offer little, if any, opportunity
for mitigation and the agency believes floodplain management resources
are best devoted in areas where they will be most effective. By keeping
actions under a certain amount either exempt or with a more
streamlined/expedited floodplain management process, FEMA would
maintain the intent of the Executive Orders to protect floodplains and
wetlands while also ensuring appropriately streamlined, cost-effective,
and equitable assistance to communities with smaller projects. FEMA is
proposing to revise current paragraph (g)(2) to address actions subject
to the FFRMS by changing the current text, which refers to new or
substantially improved structures or facilities, to instead refer to
new construction, substantial improvement, or repairs to address
substantial damage of structures or facilities. FEMA is also proposing
to revise current paragraph (g)(3) to include facilities or structures
on which a flood insurance claim has been paid. This addition would
provide consistency with language existing in current paragraph
(d)(4)(iii) and ensure that facilities or structures which have
previously sustained damage from flooding on which a flood insurance
claim has been paid will be subject to the full 8-step process. As FEMA
has already provided funding to recover from prior flood damage on
these facilities and structures, the agency believes the full 8-step
process is required to ensure any additional funds provided increase
resilience against flooding.
FEMA proposes to delete current paragraph (d)(1), consistent with
the proposed change above to exempt private bridges from the 8-step
process entirely. FEMA also proposes to delete current paragraph
(d)(2). The current regulatory language allows for an abbreviated 8-
step process for small project grants under the PA program \87\ unless
those projects fell into certain categories. FEMA proposes to remove
this language because it is no longer applicable; FEMA stopped applying
the abbreviated 8-step process to the small project threshold under the
PA program after it increased beyond the $100,000 threshold set in
current paragraph 9.5(d)(4)(i). FEMA also proposes minor revisions to
current paragraph (d)(4)(iii) (proposed (e)(2)(iii)) for clarity and
readability.
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\87\ The current outdated regulatory text refers to section 419
of the Stafford Act in identifying what constituted a small project
grant under PA. As a result of updates to the Stafford act, section
419 can now be found in section 422 (42 U.S.C. 5189) which sets
forth the authority to create a small project threshold that applies
to emergency work (sections 403 or 502), debris removal (section
407) and permanent work (section 406) which is all funded under the
PA program.
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In current paragraph (e), FEMA proposes to update the responsible
official from Director to Regional Administrator as this authority has
been delegated to Regional Administrators and make other clarifying
edits to reflect current agency terminology in that paragraph as well
as current paragraphs (f)(1) and (f)(2). FEMA also proposes clarifying
edits in current Sec. 9.5(f)(1) for readability and to eliminate the
prime two example references. As explained above in the definitions,
FEMA believes that these types of specific examples are best addressed
in guidance that can evolve as issues arise and better assist
stakeholders with particularly nuanced situations. Further, these
specific examples relate to regulatory provisions (current Sec. Sec.
9.9(e)(6) and 9.11(e)) that FEMA proposes to remove from this rule.
G. Section 9.6--Decision-Making Process
Section 9.6 sets out the floodplain management and wetlands
protection decision-making process to be followed by FEMA in applying
Executive Orders 11988, as amended, and 11990 to its actions. FEMA
proposes a clarifying edit to Sec. 9.6(a) that would delete
redundancy. Paragraph (b) of Sec. 9.6 lays out the eight Steps the
agency must follow. Step 1 states that FEMA will determine whether the
proposed action is located in the 100-year floodplain or, for critical
actions, the 500-year floodplain. FEMA proposes to remove
[[Page 67893]]
the specific requirement to use the 100-year (1 percent annual chance)
floodplain or 500-year (0.2 percent annual chance) floodplain for
critical actions and instead use the general term ``floodplain'' and
refer the reader to Sec. 9.7, which describes (1) the flexible
framework that FEMA would apply to actions subject to the FFRMS, as
well as (2) the historical framework that FEMA would continue to apply
to actions that do not qualify as actions subject to the FFRMS.
Additionally, in Step 3, FEMA proposes to add references to natural
features and nature-based approaches consistent with the Revised
Guidelines to ensure that natural features and nature-based approaches
are fully considered when identifying and evaluating practicable
alternatives to locating the action in a floodplain or wetland. As
changing conditions elevate the threats posed by natural hazards, FEMA
is proposing to incorporate nature-based solutions to help bolster
resilience. Nature-based solutions are sustainable planning, design,
environmental management, and engineering practices that weave natural
features or processes into the built environment to promote adaptation
and resilience. These solutions use natural features and processes to
combat changing conditions, reduce flood risk, improve water quality,
protect coastal property, restore, and protect wetlands, stabilize
shorelines, reduce urban heat, and add recreational space. Nature-based
solutions offer significant monetary and non-monetary benefits and
often come at a lower cost than traditional infrastructure.\88\
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\88\ See generally Coastal Resilience Assessment (Suriname),
December 2017 published by the World Bank at <a href="https://naturebasedsolutions.org/knowledge-hub/63-coastal-resilience-assessment-suriname">https://naturebasedsolutions.org/knowledge-hub/63-coastal-resilience-assessment-suriname</a> (last accessed June 8, 2022); Environmental and
Energy Study Institute Fact Sheet ``Nature as Resilient
Infrastructure: An Overview of Nature-Based Solutions'' at https://
www.eesi.org/files/
FactSheet_Nature_Based_Solutions_1016.pdf#:~:text=These%20nature-
based%20solutions%20are%20often%20higher-quality%2C%20lower-
cost%2C%20more,avenue%20for%20rethinking%20and%20remodeling%20our%20n
ations%20infrastructure (last accessed July 12, 2023); and Andrea
Bassi, Emma Cutler, Ronja Bechauf, and Liesbeth Casier, ``How Can
Investment in Nature Close the Infrastructure Gap?'' at <a href="https://www.iisd.org/publications/investment-in-nature-close-infrastructure-gap">https://www.iisd.org/publications/investment-in-nature-close-infrastructure-gap</a> (last accessed July 12, 2023).
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Requiring the use of natural features and nature-based approaches,
where possible, in consideration of alternatives within or affecting
floodplains and wetlands is consistent with the agency's priorities to
promote the use of nonstructural flood protection methods, minimize the
impact of its actions on the floodplain, and restore and preserve the
natural and beneficial values served by floodplains as well as preserve
and enhance the natural values of wetlands (44 CFR 9.2). In applying
the 8-step process to its actions, FEMA has integrated factors into its
impact analysis and minimization measures (Step 4 and Step 5; 44 CFR
9.10 and 9.11) to identify those opportunities for beneficial
floodplain and wetland values, to include natural values related
factors (44 CFR 9.10(d)(2)) that prioritize water resource values,
living resource values, and agricultural, aquacultural, and forestry
resource values. Requiring natural features or nature-based solutions
as alternatives, where possible, furthers the goals in 44 CFR part 9
and allows for FEMA to further encourage those actions that increase
the natural and beneficial function of the floodplain.
FEMA also proposes revisions to Step 5 to clarify that the agency
must minimize potential adverse impacts within floodplains and wetlands
under Step 4, including minimizing the potential direct and indirect
support of floodplain and wetland development identified under Step 4.
While not a new requirement, revising this language would help clarify
that direct or indirect support of floodplain or wetland development is
an adverse impact the agency must consider as part of minimization.
FEMA believes these edits would help ensure consistency of use
throughout part 9 and reduce stakeholder confusion. Finally, FEMA
proposes a minor edit for readability in Step 6 (removing the word
``the'' in the phrase, ``the hazards to others'').
H. Section 9.7--Determination of Proposed Action's Location
Current Sec. 9.7 establishes FEMA's procedures for determining
whether any action as proposed is located in or affects a floodplain or
a wetland. FEMA is proposing to revise this section to add procedures
for identifying the FFRMS floodplain and corresponding elevation. FEMA
is also proposing to revise this section's paragraph structure for
clarity.
In current and proposed paragraph (a), FEMA proposes minor
conforming edits. As in Sec. 9.6, FEMA proposes to simply refer to
``floodplain'' rather than the current regulatory text's ``base
floodplain'' or ``500-year floodplain'' references and direct the
reader to paragraph (c), because the Revised Guidelines and the FFRMS's
flexible framework for determining which floodplain is appropriate
depending on the type and criticality of the action means the
floodplain must be established using the process set forth in paragraph
9.7(c).
FEMA proposes to reorganize current paragraph (b) for clarity. In
proposed paragraph (b)(1), FEMA proposes to replace a reference to
``the Orders'' with a reference to ``this part,'' for clarity. In
proposed paragraph (b)(1)(i), FEMA proposes to add the words ``Federal
action'' to make clear that the goal is to avoid Federal action,
specifically, in a floodplain or wetland location unless they are the
only practicable alternatives consistent with the agency's requirements
under part 9. This proposed change would reiterate that the focus of
the 8-step process is on Federal actions.
FEMA is also proposing to relocate to Sec. 9.7(c) the statement
that in the absence of a finding to the contrary, FEMA may assume that
a proposed action involving a facility or structure that has been
flooded is in the floodplain. FEMA proposes this change for clarity. In
addition, Paragraph (b) of Sec. 9.7 currently states that information
about the 1 percent annual chance (100-year) and 0.2 percent annual
chance (500-year) floods may be needed to comply with the regulations
in part 9. In proposed paragraph (b)(2), FEMA proposes to update this
statement for simplicity, referencing the floodplain determination
process in Sec. 9.7(c) in revised paragraph (b)(2) instead of
referencing the 100-year and 500-year floods.
Current paragraph (b) includes a list of ``flooding
characteristics'' that the Regional Administer ``shall'' identify, ``as
appropriate.'' For clarity, FEMA proposes in new paragraph (b)(3) that
the Regional Administrator ``may'' identify ``current and future''
flooding characteristics, ``as applicable.'' These proposed changes are
consistent with the Revised Guidelines. FEMA prefers to avoid the use
of the term ``shall,'' which suggests a mandatory requirement for the
Regional Administrator to identify all of the additional flooding
characteristics listed. FEMA's current practices do not require this
level of rigidity and FEMA proposes the identification of these
characteristics to be within the discretion of the Regional
Administrator. FEMA is also proposing to add language for the agency to
consider both current and/or future flooding characteristics by adding
``current and future'' to the additional flooding characteristics that
may be considered. This addition clarifies the Regional Administrator's
discretion to consider both current and future flooding characteristics
consistent with the goals of FFRMS to improve the resilience of
communities and Federal assets against the impacts of flooding
[[Page 67894]]
which are anticipated to increase over time. Further, FEMA proposes to
add to the list of flooding characteristics a new item for ``[a]ny
other applicable flooding characteristics'' to signal flexibility as
flood risks are further studied and developed and allow for local
jurisdictions to utilize their own information to support requirements
specific to their community's needs.
Paragraph (c) of Sec. 9.7 outlines the process for determining if
the proposed action is in the floodplain. As explained above, FEMA
proposes to move language regarding previously flooded facilities and
structures from the current paragraph (b) to proposed paragraph (c).
FEMA also proposes to add the word ``previously'' to this provision for
clarity. By moving this language to paragraph (c), FEMA would group
this provision with the other floodplain determination provisions. If a
proposed action does not involve a previously flooded facility or
structure, FEMA would then begin the process set forth in the rest of
paragraph (c) to determine whether the proposed action is in the
floodplain. FEMA would determine whether the action is an action
subject to the FFRMS as defined in Sec. 9.4. If the action is an
action subject to the FFRMS, FEMA would establish the floodplain and
corresponding flood elevation \89\ using one of the four approaches
outlined in proposed paragraph (c)(1). For example, FEMA would likely
be required to apply one of those four approaches to establish the
FFRMS floodplain to projects involving new construction or substantial
improvement or addressing substantial damage to a structure or
facility. However, FEMA-funded projects that do not rise to the level
of new construction or substantial improvement and do not address
substantial damage to a structure or facility would not be required to
apply any of the four approaches to establish the FFRMS floodplain.\90\
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\89\ Although the FFRMS describes various approaches for
determining the higher vertical flood elevation and corresponding
horizontal floodplain for Federally funded projects, it is not meant
to be an ``elevation'' standard. The FFRMS is a resilience standard.
The vertical flood elevation and corresponding horizontal floodplain
determined using the approaches in the FFRMS establish the level to
which a structure or facility must be resilient. This may include
using structural or non-structural methods to reduce or prevent
damage; elevating a structure; or, where appropriate, designing it
to adapt to, withstand, and rapidly recover from a flood event. See
Revised Guidelines at 4.
\90\ Under proposed Sec. 9.7(c)(2), FEMA would retain
discretion to apply the FFRMS to other actions as appropriate. For
instance, under the accompanying proposed policy, FEMA would require
that all structure elevation, mitigation reconstruction, and dry
floodproofing actions under FEMA's Hazard Mitigation Assistance
programs comply with the proposed FFRMS policy.
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FEMA proposes to implement the FFRMS by adopting the flexible
framework identified in Executive Order 11988, as amended by Executive
Order 13690, in its entirety, instead of mandating a particular
approach in its regulations. Under this proposal, FEMA would provide
additional guidance (more readily capable of revisions and updates)
that addresses which approach FEMA would generally use for different
types of actions and how FEMA would tailor its application of the
various approaches depending on the type and criticality of the action,
while also considering the availability of actionable data, costs, and
equity.
Consistent with Executive Order 11988 as amended by Executive Order
13690 and the Revised Guidelines, proposed Sec. 9.7(c)(1)(iii) would
allow FEMA to except from the FFRMS an action that is in the interest
of national security, an emergency action, or a mission-critical
requirement related to a national security interest or an emergency
action. For example, if FEMA proposed to construct an underground
bunker at one of its locations for national security reasons, to
require the bunker to be elevated pursuant to the FFRMS could run
contrary to the purpose of the bunker. It is important to note that an
exception to using the floodplain for actions subject to the FFRMS
under any of the reasons listed in this section does not exempt the
action from the requirements of part 9 and Executive Order 11988
altogether. Instead, if one of FEMA's actions were excepted under this
provision, FEMA would still be required to apply the appropriate
floodplain established by proposed Sec. 9.7(c)(3). FEMA does have the
authority to exempt certain actions from any application of the
requirements of Part 9 and Executive Order 11988, as amended, and those
actions which are exempted are described in current Sec. Sec. 9.5(c)
and (e).
In proposed Sec. 9.7(c)(2), consistent with existing requirements,
FEMA proposes that if FEMA determines that the action is not an action
subject to FFRMS, the proposed action would be evaluated using, at a
minimum, the 1 percent annual chance floodplain for non-critical
actions and, at a minimum, the 0.2 percent annual chance floodplain for
critical actions.
In proposed Sec. 9.7(c)(3), FEMA proposes to focus the analysis to
establish the floodplain and corresponding elevation using the best
available data and proposes that the floodplain and corresponding
elevation determined using best available data must be at least as
restrictive as FEMA's regulatory determinations under the National
Flood Insurance Program. Current Sec. 9.7(c)(1) requires FEMA to first
consult the FIRM, FBFM, and FIS which ends the analysis if those
``detailed'' products are available. There are cases where FIRM, FBFM,
and FIS are available for an area but do not provide flood elevations,
0.2 percent annual chance floodplain information, or other floodplain
information required. The proposed changes allow FEMA to seek
additional information even when a ``detailed'' product is available at
a location. If those ``detailed'' products are not available, FEMA will
then consult the FHBM. If that information is insufficient FEMA will
seek other data as part of the floodplain and elevation analysis.
FEMA proposes to update this paragraph to reflect the Revised
Guidelines' focus on the use of the best available information. While
FEMA still intends to rely on FEMA products such as FIRMs, FBFMs, FISs,
and FHBMs, FEMA understands that these products do not always provide
all information needed for some locations and do not currently account
for future conditions and other factors that better inform the
floodplain determination for projects under part 9. In obtaining the
best available information, FEMA is proposing to consider other
information from FEMA, as well as information in a proposed updated
list of sources to reflect those sources suggested in the Revised
Guidelines, as well as sources the agency knows may have relevant
additional information. Some of the proposed changes to this list are
updates to reflect current titles, while other changes reflect newly
available resources. Finally, if none of these sources have the
information necessary to comply with part 9, the Regional Administrator
may seek the services of a professional registered engineer. FEMA
proposes clarifying edits in paragraph (d)(3) and (d)(4) of Sec. 9.7.
I. Section 9.8--Public Notice Requirements
FEMA proposes clarifying edits in Sec. 9.8(a) and Sec. 9.8(c)(1)-
(c)(4) for readability. FEMA is adding the use of the internet for
notice in this process by inserting Sec. 9.8(c)(4)(i) to allow for
notice through the internet or another comparable method. This proposed
change would codify FEMA's current practice to incorporate notices on
the agency's website at <a href="http://www.fema.gov">www.fema.gov</a> in connection with specific
disaster relief
[[Page 67895]]
efforts. Currently, notices regarding other FEMA programs may be posted
on other websites, such as websites belonging to state or local
governments, but these notices are not currently posted on <a href="http://www.fema.gov">www.fema.gov</a>
if not tied to a specific disaster. This revision would allow FEMA to
further expand the use of <a href="http://www.fema.gov">www.fema.gov</a> for notices for other programs
not tied to a specific disaster. By incorporating the use of the
internet through FEMA's website and other sites as a means to provide
notice, FEMA is seeking to modernize this part for consistency with
current practice and to increase public visibility and accessibility of
those notices that are not current posted on <a href="http://www.fema.gov">www.fema.gov</a>. FEMA
proposes other edits to the notification process in paragraph (c)(4) to
eliminate outdated terminology and incorporate newsletters into the
``other local media'' category as a means of providing notice to
potentially interested persons. In addition to incorporating the use of
the internet for notice, FEMA proposes to clarify in Sec.
9.8(d)(5)(ii) that FEMA may include in the notice a link to access a
map of the area of the proposed action. A link may help the public more
easily access information associated with the notice. FEMA also
proposes to correct a typographical error. FEMA proposes other
clarifying edits in Sec. 9.8(c)(5)(i)-(iv) for readability.
J. Section 9.9--Analysis and Reevaluation of Practicable Alternatives
FEMA proposes clarifying edits in Sec. 9.9(a) for readability. In
Sec. 9.9(b)(2), FEMA proposes to add the requirement to use natural
systems, ecosystem processes, and nature-based approaches, where
possible, in the development of alternatives to the proposed actions in
or affecting the floodplain and/or wetland. Under Sec. 9.9, FEMA must
make a preliminary determination (Step 3 of the 8-step process) as to
whether the floodplain is the only practicable location for the action.
Part of that analysis involves considering whether there are
alternative actions that serve essentially the same purpose as the
proposed action, but which have less potential to affect or be affected
by a floodplain. Under this proposed rule, during the course of the
aforementioned analysis, FEMA would consider whether an alternative
using natural systems, ecosystem processes, and nature-based approaches
might have less of an effect on the floodplain.
For consistency with the Revised Guidelines and the agency's use of
the term in the current regulations, FEMA is proposing to add the cost
of technology to the list of economic factors that FEMA considers under
Sec. 9.9(c)(3). By adding technology to this list, FEMA would clarify
that the cost of technology is a factor to consider in determining
practicability of alternatives and also emphasize the importance of the
cost of technology and technological advancements in the analysis. FEMA
is proposing to add Sec. 9.9(c)(5) to reflect consideration of agency
authorities in the practicability analysis, again for consistency with
the Revised Guidelines. Additionally, FEMA is proposing clarifying
edits throughout paragraph 9.9(c) for readability.
FEMA proposes to remove paragraph (d)(2) of Sec. 9.9, which
prohibits FEMA from locating a proposed critical action in the 500-year
floodplain, as the language is redundant given the proposed changes to
paragraph (d)(1) which explain that FEMA would utilize Sec. 9.7(c)
when making the floodplain determination. As noted above, FEMA would
determine whether the project meets the new definition of an ``Action
subject to the FFRMS'' in proposed Sec. 9.4. If FEMA determined that
the project is an action subject to the FFRMS, then FEMA would
establish the floodplain by using one of the approaches detailed in
proposed Sec. 9.7(c)(1) (which requires the applicant to consider
whethe
[…truncated; see source link]Indexed from Federal Register on October 2, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.