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Rule2024-15169

Updates to Floodplain Management and Protection of Wetlands Regulations To Implement the Federal Flood Risk Management Standard

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Published

July 11, 2024

Effective

September 9, 2024

Issuing agencies

Homeland Security DepartmentFederal Emergency Management Agency

Abstract

On October 2, 2023, the Federal Emergency Management Agency (FEMA) published a notice of proposed rulemaking (NPRM) and supplementary policy that proposed to implement the Federal Flood Risk Management Standard (FFRMS) and update the agency's 8-step decision- making process for floodplain reviews by changing how FEMA defines a floodplain with respect to certain actions and how FEMA uses natural systems, ecosystem processes, and nature-based approaches when developing alternatives to locating a proposed action in the floodplain. After a careful review of the public comments received, FEMA is now issuing a final rule that implements the proposed rule, with some minor amendments.

Full Text

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[Federal Register Volume 89, Number 133 (Thursday, July 11, 2024)]
[Rules and Regulations]
[Pages 56929-57046]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-15169]

Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules
and Regulations

[[Page 56929]]

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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, Department of Homeland
Security.

ACTION: Final rule.

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SUMMARY: On October 2, 2023, the Federal Emergency Management Agency
(FEMA) published a notice of proposed rulemaking (NPRM) and
supplementary policy that proposed to implement the Federal Flood Risk
Management Standard (FFRMS) and update the agency's 8-step decision-
making process for floodplain reviews by changing how FEMA defines a
floodplain with respect to certain actions and how FEMA uses natural
systems, ecosystem processes, and nature-based approaches when
developing alternatives to locating a proposed action in the
floodplain. After a careful review of the public comments received,
FEMA is now issuing a final rule that implements the proposed rule,
with some minor amendments.

DATES: This rule is effective September 9, 2024.

FOR FURTHER INFORMATION CONTACT: Portia Ross, Policy and Integration
Division Director, Office of Environmental Planning and Historic
Preservation, Resilience, DHS/FEMA, 400 C St. SW, Suite 313,
Washington, DC 20472-3020. Phone: (202) 709-0677; Email: <a href="/cdn-cgi/l/email-protection#a4c2c1c9c589d6c1c3d1c8c5d0cdcbcad7e4c2c1c9c58ac0ccd78ac3cbd2"><span class="__cf_email__" data-cfemail="5f393a323e722d3a382a333e2b3630312c1f393a323e713b372c71383029">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Contents

I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Notice of Proposed Rulemaking (NPRM)
C. Summary of Changes From the NPRM to the Final Rule
II. Background and Legal Authority
A. Executive Order 11988, ``Floodplain Management''
B. Statutory Authority To Require FFRMS Under FEMA Grant
Programs
C. 44 CFR Part 9, ``Floodplain Management and Protection of
Wetlands''
D. Executive Order 13690, the Federal Flood Risk Management
Standard and Subsequent Amendments to Executive Order 11988, and
Revisions to the 1978 Guidelines
E. Substantive Components of the FFRMS
F. Summary of the 2023 Proposed Rule and Proposed FFRMS Policy
G. Summary of FEMA's Final Rule and Updated Policy
III. Discussion of Public Comments and FEMA's Responses
A. Summary of Public Comments
B. Comments in Support of the Rule
C. Comments in General Opposition to the Rule
D. FEMA's Authority for Part 9 and Revisions
E. Definitions
F. FFRMS Applicability
G. FFRMS Approaches
H. FEMA's FFRMS Policy Approach
I. The FFRMS and Floodplain/Wetland Determination Data
J. FFRMS Implementation
K. Emphasis on Nature-Based Approaches
L. Other 8-Step Process Comments
M. Other Comments
N. Accessibility
O. Regulatory Impact Analysis Comments

I. Executive Summary

A. Purpose of the Regulatory Action

The purpose of this regulatory action is to finalize a rulemaking
that will improve the preparedness and resilience of communities and
Federal assets against the increasing impacts of flooding. All Federal
agencies, including FEMA, have long taken 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 when carrying out certain agency
functions. Federal agencies accomplish this by applying the
longstanding 8-step decision-making process to any action they take in
floodplains to ensure they avoid, to the extent possible, the long- and
short-term adverse impacts associated with the occupancy and
modification of floodplains, and to avoid direct or indirect support of
floodplain development wherever there is a practicable alternative.
This framework was originally established in 1977 by Executive
Order 11988, ``Floodplain Management,'' (42 FR 26951) which was issued
in furtherance of the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321 et seq.), the National Flood Insurance Act of 1968 as
amended (NFIA) (42 U.S.C. 4001 et seq.), and the Flood Disaster
Protection Act of 1973, as amended (Flood Disaster Protection Act)
(Pub. L. 93-234, 87 Stat. 975). Executive Order 11988 was supplemented
by guidance called ``Floodplain Management Guidelines'' issued in 1978
by the U.S. Water Resources Council (``1978 Guidelines'').\1\ FEMA
implemented Executive Order 11988 in 1980 through the promulgation of
regulations at 44 CFR part 9, ``Floodplain Management and Protection of
Wetlands,'' \2\ which applies the 8-step decision-making process to all
actions FEMA directly takes and to all actions that it funds through
grants to eligible State, local, Tribal, and territorial (SLTT)
governments, certain private non-profits, and individuals and
households for pre- and post-emergency or disaster-related projects.
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\1\ 42 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines
can be found at this link: <a href="http://hud.gov/sites/documents/DOC_14216.PDF">hud.gov/sites/documents/DOC_14216.PDF</a>
(last accessed Jan. 24, 2024).
\2\ 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.
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The first step in the 8-step process is to determine whether the
action FEMA proposes to take or fund will occur in a floodplain or
wetland.\3\ Section (6)(c) of Executive Order 11988 defined the term
``floodplain'' to mean, at a minimum, ``that area subject to a one
percent or greater chance of flooding in any given year,'' which is
recognized as the ``base floodplain.'' Executive Order 11988 and the
base floodplain definition remained unchanged from 1977 until 2015. In
2015, President Barack Obama amended Executive Order 11988 by adding a
new flood risk reduction standard to the existing 8-step decision-
making process to improve the Nation's resilience against the
increasing impacts of flooding.\4\ The flood risk reduction standard,
called the Federal Flood Risk Management Standard (FFRMS), is a
flexible framework to define the floodplain that allows agencies to
choose among several approaches to expand the base floodplain to a
higher vertical elevation and corresponding horizontal extent for all
Federally

[[Page 56930]]

funded projects. Federally funded projects are defined as actions where
Federal funds are used for new construction, substantial improvement,
or repairs to address substantial damage to structures and
facilities.\5\ The amendments also direct agencies to use natural
systems, ecosystem processes, and nature-based approaches when
developing alternatives to locating the action in the floodplain. The
Water Resources Council then updated the 1978 Guidelines and issued 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'') \6\ to
provide additional information on the use of the FFRMS.
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\3\ Any action FEMA takes in a floodplain or wetland, including
its provision of grants for disaster assistance, undergoes an
analysis pursuant to Executive Orders 11988 and 11990 (unless the
action is specifically exempted from the requirements of the
Orders). The grant recipient, therefore, generally provides
information to FEMA about the practicability of alternatives outside
the floodplain and wetland and other information to assist in the
analysis.
\4\ Executive Order 13690, ``Establishing a Federal Flood Risk
Management Standard (FFRMS) and a Process for Further Soliciting and
Considering Stakeholder Input.'' 80 FR 6425, Feb. 4, 2015. In 2017,
President Donald Trump revoked the amendments to Executive Order
11988. See Executive Order 13807, ``Establishing Discipline and
Accountability in the Environmental Review and Permitting Process
for Infrastructure Project,'' 82 FR 40463, Aug. 24, 2017. In 2021,
President Joseph Biden reinstated the amendments. See Executive
Order 14030, ``Climate Related Financial Risk,'' 86 FR 27967, May
25, 2021.
\5\ See ``Guidelines for Implementing Executive Order 11998,
Floodplain Management, and Executive Order 13690, Establishing a
Federal Flood Risk Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct.
22, 2015) (providing notice of the availability of the Revised
Guidelines in the docket for the rulemaking at <a href="https://www.regulations.gov/document/FEMA-2015-0006-0358">https://www.regulations.gov/document/FEMA-2015-0006-0358</a> (main content) and
<a href="https://www.regulations.gov/document/FEMA-2015-0006-0372">https://www.regulations.gov/document/FEMA-2015-0006-0372</a>
(appendices)) also available 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 Mar. 11, 2024).
\6\ 80 FR 64008, Oct. 22, 2015.
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FEMA first partially implemented the FFRMS in its grant programs
through policy using an interim approach that applied higher elevation
requirements to eligible projects in existing floodplains.\7\ FEMA then
proposed to fully implement the FFRMS in its October 2, 2023 NPRM and
supplementary policy.\8\ FEMA proposed to prioritize the use of the
Climate-Informed Science Approach (CISA) in its FFRMS implementation.
The CISA establishes the required vertical elevation and corresponding
horizontal floodplain, through the best-available, actionable
hydrologic and hydraulic data and methods that integrate current and
future changes in flooding based on climate science, in accordance with
the Revised Guidelines. When such data is not available, FEMA's NPRM
and supplementary policy proposed the use of other approaches depending
on the criticality of the action. FEMA also proposed to require the use
of natural systems, ecosystem processes, and nature-based approaches
where possible.
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\7\ 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 Jan. 24, 2024) 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 Jan. 24, 2024).
\8\ 88 FR 67870, Oct. 2, 2023; 88 FR 67697, Oct. 2, 2023.
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FEMA has authority to require application of the FFRMS as a
condition of funding in its grant programs based on the grant programs'
authorizing statutes. Congress granted FEMA the authority to provide
Federal assistance through multiple grant programs under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (Stafford
Act),\9\ the NFIA,\10\ the Homeland Security Act of 2002,\11\ the
Federal Fire Prevention and Control Act of 1974,\12\ the Earthquake
Hazards Reduction Act of 1977,\13\ and various other appropriations
acts. Under each of these authorities, FEMA may set grant eligibility
criteria consistent with the respective purposes of such programs and
FEMA's mission, including to protect Federal investments from the risks
of further damage.\14\ Under the Stafford Act and the NFIA, which
authorize the programs that fund the majority of the actions subject to
the FFRMS, FEMA has general rulemaking authority.\15\ Further, FEMA has
explicit authority under the Stafford Act to set the minimum standards
for safe land use and construction standards required in the repair or
construction of private and public facilities.\16\
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\9\ 42 U.S.C. 5121 et seq.
\10\ 42 U.S.C. 4001 et seq.
\11\ 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12), which
specifically charges the Administrator with supervising various
grant programs authorized under the HSA. Such grant programs have
long been governed by floodplain management regulations at 44 CFR
part 9, see, e.g., 44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept.
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing Federal
awarding agencies to manage and administer Federal awards in a
manner so as to ensure that Federal funding is expended and
associated programs are implemented in full accordance with the U.S.
Constitution, Federal Law, and public policy requirements including,
but not limited to, those protecting public welfare and the
environment; and requiring the Federal awarding agency to
communicate to the non-Federal entity all relevant public policy
requirements, and incorporate them either directly or by reference
in the terms and conditions of the Federal award.).
\12\ 15 U.S.C. 2229 and 2229a.
\13\ 42 U.S.C. 7701 et seq.
\14\ See, e.g., 6 U.S.C. 609 (granting FEMA approval authority
over grant funds for construction awards under its Homeland Security
Grant Program, State Homeland Security Grant Program, Urban Area
Security Initiative, Operation Stonegarden, Tribal Homeland Security
Grant Program, and Nonprofit Security Grant Program); 6 U.S.C.
1182(d)(1) (granting DHS the authority to determine the grant
requirements for the Intercity Bus Security Grant Program); 6 U.S.C.
1163(c)(1) (granting FEMA the authority to determine the grant
requirements for the Intercity Passenger Rail grant program); 46
U.S.C. 70101 (granting DHS approval authority over grant funds for
construction awards under the Port Security Grant Program); 6 U.S.C.
1135(c)(1) (granting DHS the authority to determine the grant
requirements for the Transit Security Grant Program); 33 U.S.C.
467f-2(c)(2)(A) (granting FEMA the authority to set the minimum
eligibility requirements for the Rehabilitation of High Hazard Dam
Program).
\15\ See 42 U.S.C. 5164; 42 U.S.C. 4128(a) and (b).
\16\ 42 U.S.C. 5165a(a)(1)-(2).
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This rule is an important first step toward mitigating future flood
risk that 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
changing conditions.\17\ 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, an assessment identified over 40,000
individual Federal buildings and structures with a combined replacement
cost of $81 billion (in 2020 dollars) located in the current 1 percent
floodplain and approximately 160,000 structures with a total
replacement cost of $493 billion (in 2020 dollars) located in the
current 0.2 percent floodplain.\18\ 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-foot sea-level rise scenario and over 12,195
individual Federal buildings and structures were identified with a
combined replacement cost of over $43.7 billion under a ten-foot
``worst case'' sea level rise scenario.\19\ The Federal fiscal exposure
presented above can be reduced by enhancing resilience. This final rule
will enhance resilience by ensuring 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 and
to protect Federal investments by reducing the risk of flood loss.
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\17\ 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).
\18\ 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 Jan. 24, 2024).
\19\ Id.

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[[Page 56931]]

B. Summary of the Notice of Proposed Rulemaking (NPRM)

On October 2, 2023, FEMA published the NPRM ``Updates to Floodplain
Management and Protection of Wetlands Regulations to Implement the
Federal Flood Risk Management Standard.'' \20\ FEMA also published
``FEMA Proposed Policy: Federal Flood Risk Management Standard
(FFRMS)'' with the proposed rule.\21\ The proposed rule sought to
change how FEMA defines a floodplain with respect to certain actions
taken by the agency and require that FEMA use natural systems,
ecosystem process, and nature-based approaches, where possible, when
developing alternatives to locating a proposed agency action in the
floodplain.
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\20\ 88 FR 67870, Oct. 2, 2023.
\21\ 88 FR 67697, Oct 2, 2023.
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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. For actions subject to the FFRMS, the NPRM
proposed to update the definition of ``floodplain'' to the definition
used in the Revised Guidelines, which allows the agency to establish
the floodplain using any of the following three approaches or a fourth
approach resulting from any other method in an update to the FFRMS:
<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): The elevation
and corresponding horizontal floodplain that result from using the
freeboard \22\ value, reached by reached by adding 2 feet to the base
flood elevation (BFE) for non-critical actions (+2' FVA) and from
adding 3 feet to the BFE for critical actions (+3' FVA).
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\22\ Freeboard is a factor of safety usually expressed in feet
above a flood level for purposes of floodplain management. See
<a href="https://www.fema.gov/glossary/freeboard">https://www.fema.gov/glossary/freeboard</a> (last accessed June 11,
2024).
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<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.
In many cases, each of these approaches would result in a larger
floodplain and a requirement to design projects to be resilient at 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 floodplain definition, with minor clarifying revisions to
help stakeholders better understand the terminology. The NPRM further
proposed 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. FEMA proposed
other edits to 44 CFR part 9, including edits to clarify the
applicability of 44 CFR part 9 to specific FEMA programs and update the
monetary thresholds in Sec. 9.5, edits to incorporate the use of the
internet in public notice requirement in Sec. 9.8, edits to
consolidate temporary housing requirements in Sec. 9.13, and other
clarifying edits to update citations and remove outdated terminology.

C. Summary of Changes From the NPRM to the Final Rule

In this final rule, FEMA adopts the changes proposed in the NPRM
and FFRMS policy with clarifications in consideration of the relevant
comments. Consistent with comments received, FEMA's edits in this final
rule add a Federal agency (the National Park Service) to the best
available information sources list and incorporate the use of
Indigenous Knowledge by adding Indian Tribal governments to that list.
The best available information sources list appears at 44 CFR
9.7(c)(3). The list is a non-exhaustive list of resources that FEMA may
use to make floodplain determinations. Additional clarifying edits are
included in Sec. Sec. 9.5 and 9.7. The edits to the FFRMS policy
accompanying this final rule clarify the use of the 0.2PFA in coastal
areas and clarify FEMA's use of the Federal Flood Risk Management
Floodplain Determination Job Aid (FFRMS Job Aid). FEMA describes these
changes in detail below.

D. Impacts of the Final Rule

FEMA estimated the total impacts of this 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. FEMA did so by examining the number of projects that
would be subject to the proposed requirements in the first 10 years
after the rule's publication.\23\ 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 rule to those projects, for a total period of analysis spanning 60
years. Tables 1 and 2 show the total impacts under the three approaches
for each of the affected programs.
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\23\ 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.
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BILLING CODE 9111-66-P

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[GRAPHIC] [TIFF OMITTED] TR11JY24.000

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\24\ To obtain the total costs as in Section 7.12, add each
individual approach to the FEMA admin cost. For example, CISA + FEMA
admin = total CISA cost.

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[GRAPHIC] [TIFF OMITTED] TR11JY24.001

Table 3 provides the estimated number of structures and facilities
affected by the 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 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 to comply with the
increased resilience standard. The monetized impacts of this rule are
representative of the floodproofing and elevation mitigation measures
that are required of structures. However, for reasons explained in more
detail later, FEMA was unable to monetize the impacts of the rule for
facilities.
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\25\ To obtain the total costs as in Section 7.12, add each
individual approach to the FEMA admin cost. For example, CISA + FEMA
admin = total CISA cost.

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[[Page 56934]]

[GRAPHIC] [TIFF OMITTED] TR11JY24.002

BILLING CODE 9111-66-C
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 project-specific nature of facilities projects and numerous
options for making them resilient, FEMA could not estimate the costs of
improving flood resilience of facilities.\27\ Table 2 shows that the
total 60-year benefits for non-residential PA Category E projects in
the first 10 years is $54.4 million (7 percent). This benefit is for
adding one foot of freeboard, assuming a 59-inch sea level rise
(SLR).\28\ Although the cost for PA Category E projects is $133.3
million, this cost represents 5 feet of freeboard (FEMA's assumption
for CISA).\29\ 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, 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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\26\ These counts are based on the number of closed or obligated
projects at the time of analysis. It can take several years for a
project to close out or reach the obligation status after the
disaster year.
\27\ 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>.
\28\ FEMA used one foot for benefits as the 2022 report, ``A
Benefits Analysis of Increased Freeboard for Public and
Nonresidential Buildings in Riverine and Coastal Floodplains,'' 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.
A Benefits Analysis of Increased Freeboard for Public and
Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA.
Draft, July 2022, page 16. Available at: <a href="https://www.regulations.gov/document/FEMA-2023-0026-0003">https://www.regulations.gov/document/FEMA-2023-0026-0003</a>.
\29\ 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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II. Background and Legal Authority

The President issued Executive Order 11988 (42 FR 26951, May 25,
1977) as amended by Executive Order 13690, ``Establishing a Federal
Flood Risk Management Standard (FFRMS) and a Process for Further
Soliciting and Considering Stakeholder Input,'' (80 FR 6425, Feb. 4,
2015) and Executive Order 14030, ``Climate-Related Financial Risk,''
(86 FR 27967, May 25, 2021) in furtherance of the NFIA (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 NEPA (42 U.S.C. 4321 et seq.). Each
agency is responsible for implementing Executive Order 11988, as
amended, as allowed by and consistent with applicable law within their
existing statutory authorities.\30\
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\30\ See 42 FR 26951, May 25, 1977 at Section 2(d); see also 80
FR 6425, Feb. 4, 2015 at Section 5(b).
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Section II.A below describes Executive Order 11988, the 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.
Next, Section II.B describes FEMA's statutory authority to require
its grant recipients to carry out repairs or construction in accordance
with specific standards. Section II.C describes FEMA's implementing
regulations at 44 CFR part 9, which closely follow the model decision-
making process under Executive Order 11988. Section II.D describes the
development of Executive Order 13690, the FFRMS, and additional
guidance in the Revised Guidelines issued in 2015, as well as
subsequent amendments to Executive Order 11988. Section II.E describes
the substantive components of the FFRMS. Section II.F. describes FEMA's
NPRM and supplementary policy implementing the FFRMS.

A. Executive Order 11988, ``Floodplain Management''

The President issued Executive Order 11988 (42 FR 26951, May 25,
1977) in furtherance of the NFIA (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 NEPA (42 U.S.C. 4321 et seq.). The NFIA, 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.\31\ The NFIA 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
reasonably foreseeable environmental effects of proposed major Federal
actions and evaluate a reasonable range of alternatives to those
actions, which includes the evaluation of the impacts of proposed
actions in floodplains.\32\ 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.'' \33\
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\31\ See 42 U.S.C. 4001 and 4102.
\32\ See 42 U.S.C. 4332(2)(C).
\33\ See 42 U.S.C. 4331(b)(3).
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In furtherance of and consistent with this statutory foundation,
Executive Order 11988 directs Federal agencies to avoid, to the extent
possible, the long-

[[Page 56935]]

and short-term adverse impacts associated with the occupancy and
modification of floodplains, where there is a practicable alternative.
The Executive Order directs 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. 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.
To meet this direction, each agency, before taking an action, must
determine whether the proposed action will occur in a floodplain.\34\
Section (6)(c) of Executive Order 11988 defined 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.'' \35\ 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 to minimize potential harm to or within the
floodplain. Additionally, the agency must prepare and circulate a
notice explaining why the proposed action is located in the floodplain.
Particularly relevant to FEMA, the Executive Order also requires
agencies to provide appropriate grant funding guidance to applicants to
encourage them to evaluate the effects of their proposals in
floodplains, prior to submitting grant applications.
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\34\ Any action FEMA takes in a floodplain, including its
provision of grants for disaster assistance, undergoes an analysis
pursuant to FEMA's implementation of Executive Order 11988 (unless
the action is specifically exempted from the requirements of the
Order and the implementing regulations). 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.
\35\ This is also referred to as the ``100-year floodplain'' or
the ``base floodplain.''
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Executive Order 11988 directs agencies to prepare implementing
procedures in consultation with the Water Resources Council (WRC),\36\
FEMA, and the Council on Environmental Quality (CEQ). As noted, the WRC
issued the 1978 Guidelines, the authoritative interpretation of
Executive Order 11988.\37\ The 1978 Guidelines provided 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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\36\ The WRC, 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.
\37\ 42 FR 6030, Feb. 10, 1978. A PDF copy of the 1978
Guidelines can be found at this link: <a href="http://hud.gov/sites/documents/DOC_14216.PDF">hud.gov/sites/documents/DOC_14216.PDF</a> (last accessed Jan. 24, 2024).
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B. Statutory Authority To Require FFRMS Under FEMA Grant Programs

\38\ 42 U.S.C. 5121 et seq.
\39\ 42 U.S.C. 4001 et seq.
\40\ 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12), which
specifically charges the Administrator with supervising various
grant programs authorized under the HSA. Such grant programs have
long been governed by floodplain management regulations at 44 CFR
part 9, see, e.g., 44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept.
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing Federal
awarding agencies to manage and administer Federal awards in a
manner so as to ensure that Federal funding is expended and
associated programs are implemented in full accordance with the U.S.
Constitution, Federal Law, and public policy requirements including,
but not limited to, those protecting public welfare and the
environment; and requiring the Federal awarding agency to
communicate to the non-Federal entity all relevant public policy
requirements, and incorporate them either directly or by reference
in the terms and conditions of the Federal award.).
\41\ 15 U.S.C. 2229 and 2229a.
\42\ 42 U.S.C. 7701 et seq.
\43\ See, e.g., 6 U.S.C. 609 (granting FEMA approval authority
over grant funds for construction awards under its Homeland Security
Grant Program, State Homeland Security Grant Program, Urban Area
Security Initiative, Operation Stonegarden, Tribal Homeland Security
Grant Program, and Nonprofit Security Grant Program); 6 U.S.C.
1182(d)(1) (granting DHS the authority to determine the grant
requirements for the Intercity Bus Security Grant Program); 6 U.S.C.
1163(c)(1) (granting FEMA the authority to determine the grant
requirements for the Intercity Passenger Rail grant program); 46
U.S.C. 70101 (granting DHS approval authority over grant funds for
construction awards under the Port Security Grant Program); 6 U.S.C.
1135(c)(1) (granting DHS the authority to determine the grant
requirements for the Transit Security Grant Program); 33 U.S.C.
467f-2(c)(2)(A) (granting FEMA the authority to set the minimum
eligibility requirements for the Rehabilitation of High Hazard Dam
Program).
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Congress enacted the Stafford Act \44\ to ``provide an orderly and
continuing means of assistance'' to State and local governments in
carrying out their responsibilities to alleviate the suffering and
damage that result from disasters by, among other responsibilities,
``encouraging hazard mitigation measures to reduce losses from
disasters, including the development of land use and construction
regulations'' and ``identifying the climate and natural hazard
resilience of vulnerable communities.'' \45\ FEMA has general authority
under the Stafford Act to ``prescribe such rules and regulations as may
be necessary and proper to carry out the provisions of [the Stafford
Act], and may exercise, either directly or through such Federal agency
as the President may designate, any power or authority conferred to the
President by [the Stafford Act].'' \46\ The Stafford Act further grants
FEMA explicit authority to set the minimum standards for safe land use
and construction standards required in the repair or construction of
private and public facilities.\47\
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\44\ 42 U.S.C. 5121 et seq.
\45\ 42 U.S.C. 5121(b)(5) and (7).
\46\ 42 U.S.C. 5164.
\47\ 42 U.S.C. 5165a(a)(1)-(2).
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Congress enacted the NFIA to authorize a flood insurance program
which is designed to ``promote the public interest by providing
appropriate protection against the perils of flood losses and
encouraging sound land use by minimizing exposure of property to

[[Page 56936]]

flood losses'' and the objectives of which should be ``integrally
related to a unified national program for flood plain management.''
\48\ FEMA has general authority under the NFIA to ``issue such
regulations as may be necessary'' to carry out its provisions.\49\
Section 404 of the NFIA 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.\50\
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\48\ 42 U.S.C. 4001(c). As part of the floodplain management
program under the NFIP, FEMA establishes minimum floodplain
management criteria, and communities that participate in the NFIP
must adopt and enforce floodplain management regulations that
incorporate the minimum criteria. 44 CFR 59.2(b), 59.22(a)(3),
60.1(d). FEMA has determined that it is consistent with the purposes
of the NFIA to allow communities to adopt more comprehensive
floodplain management regulations that exceed the minimum
requirements. 44 CFR 60.1(d). Similarly, in its implementation of
Executive Order 11988, FEMA prohibits taking any action taken unless
it is consistent with the NFIP minimum criteria or any more
restrictive Federal, State or local floodplain management standards.
44 CFR 9.11(d)(6).
\49\ 42 U.S.C. 4128(a).
\50\ 42 U.S.C. 4104c and 4102. Please note this rulemaking does
not alter the minimum floodplain management criteria that
communities adopt to participate in the NFIP. The NFIP is a program
through which property owners in participating communities can
purchase Federal flood insurance as a protection against flood
losses. 42 U.S.C. 4011(a). As a condition of eligibility, a
community must adopt and enforce floodplain management regulations
that incorporate NFIP minimum floodplain management criteria
developed by the Administrator. 42 U.S.C. 4011(a) and (b); 42 U.S.C.
4102; 44 CFR 59.2(b), 59.22(a)(3), 60.1(d). Further information
regarding FEMA's minimum floodplain management standards for the
NFIP can be found at 44 CFR part 59 et seq. Because this rule only
applies to actions subject to the FFRMS, this rule does not change
any FEMA standards applicable to community or individual
participation in any aspect of the NFIP. In general, changes to 44
CFR part 59 et seq. would require a rulemaking to revise the
appropriate sections of the CFR.
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C. 44 CFR Part 9, ``Floodplain Management and Protection of Wetlands''

Consistent with the NFIA, 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.''
\51\ 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.\52\ 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 Stafford Act, as amended (42 U.S.C. 5170b and 5192).
In addition, FEMA applies part 9 programmatically to the National Flood
Insurance Program (NFIP).\53\ 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 or affect floodplains.\54\
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\51\ 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 this part also implements a related Executive Order 11990,
``Protection of Wetlands.'' See 42 FR 26961, May 25, 1977.
\52\ 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.
\53\ 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).
\54\ 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
44 CFR 9.5(g).
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Part 9 outlines FEMA's 8-step decision-making process for
conducting floodplain management reviews before performing certain
actions, including approval of grant funding. The 8-step decision
making process is:
(1) Determine whether the proposed action is located in a wetland
or floodplain and its potential to affect or be affected by a wetland
or floodplain;
(2) Notify the public of the intent to carry out the proposed
action within or affecting a wetland or floodplain, and involve the
affected and interested public in the decision-making process;
(3) Identify and evaluate practicable alternatives to locating the
proposed action in a floodplain or wetland, including alternative
sites, actions, and the ``no action'' option;
(4) Identify the potential direct and indirect impacts associated
with the occupancy or modification of floodplains and wetlands and the
potential direct and indirect support of floodplain and wetland
development that could result from the proposed action;
(5) Minimize the proposed action's potential adverse impacts and
support to or within the floodplains and wetlands identified under Step
4;
(6) Re-evaluate the proposed action and other practicable
alternatives identified in step 3 based on new information gained in
steps 4 and 5;
(7) Inform the public of any final decision that the floodplain or
wetland is the only practicable alternative; and
(8) Implement the action.
There are certain exclusions from all or some of the 8-steps for
certain categories of actions being funded by FEMA.\55\
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\55\ 44 CFR 9.5(c), (d), (e), and (g).
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D. 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.''
\56\ Executive Order 13690 amended Executive Order 11988 and
established the FFRMS. It required FEMA to publish an updated version
of the 1978 Guidelines (revised to incorporate the changes required by
Executive Order 13690 and the FFRMS) in the Federal Register for notice
and comment. Executive Order 13690 also 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. FEMA,
acting on behalf of the Mitigation Framework Leadership Group (MitFLG),
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.\57\ FEMA received over 556 separate submissions.\58\
The final Revised Guidelines were issued on October 8, 2015.\59\
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\56\ 80 FR 6425, Feb. 4, 2015. Section 5(c) of Executive Order
13690 specifically states that the order ``is not intended to, and
does not, create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United
States, its departments, agencies, or entities, its officers,
employees, or agents, or any other person.''
\57\ 80 FR 6530, Feb. 5, 2015.
\58\ FEMA received approximately 556 separate submissions, which
raised over 2700 separate issues and positions. Written comments
were received at a series of eight 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).
\59\ 80 FR 64008, Oct. 22, 2015.
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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

[[Page 56937]]

FFRMS. In response to public comments, the MitFLG clarified the
distinction between ``actions'' and ``Federally funded projects.'' 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 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'') \60\ reinstating
Executive Order 13690, thereby reestablishing the FFRMS. Executive
Order 14030 also states the Revised Guidelines issued in 2015 were
never revoked and remain in effect. As such, FEMA reviewed its prior
NPRM and proposed policy, and revised 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.\61\ FEMA next
proposed to fully implement the FFRMS through the NPRM, which proposed
updates to FEMA regulations and a supplemental FFRMS policy.\62\
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\60\ 86 FR 27967, May 25, 2021. See also Executive Order 13990
(``Protecting Public Health and the Environment and Restoring
Science To Tackle the Climate Crisis''), 86 FR 7037, Jan. 25, 2021
(revoking Executive Order 13807).
\61\ 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 Jan. 24, 2024) 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 Jan. 24, 2024).
\62\ 88 FR 67870, Oct. 2, 2023.
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E. 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.\63\ Incorporating the FFRMS will expand the floodplain and
require projects to increase their resilience to flooding. 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 of the decision-
making process for all Federal actions. Nature-based approaches can
also help minimize an action's impacts to the floodplain and assist in
restoring the natural and beneficial functions of floodplains.
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\63\ 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 to. 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 Jan. 24, 2024).
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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.\64\
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\64\ See Executive Order 13690 Section 2(i), 80 FR 6425, 6426
(Feb. 4, 2015).
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The four approaches are described in further detail below.
FFRMS Approach 1: CISA
The 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 and actionable. The 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.\65\ For areas vulnerable to coastal flood hazards, the CISA
includes consideration of the regional sea-level rise variability
during the lifecycle of the Federal action. This includes use of global
mean sea-level-rise scenarios 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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\65\ See Revised Guidelines, pgs. 36-37.

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[[Page 56938]]

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. 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.
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; this data does 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 MitFLG, in consultation with the Federal Interagency Floodplain
Management Task Force (FIFM-TF), 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 the 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 Revised Guidelines state that for riverine flood hazard areas,
agencies may select either the FVA or 0.2PFA (or a combination of
approaches, as appropriate) when actionable science is not available,
and an agency opts not to follow the CISA. 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
considering the goals of Executive Order 11988, as amended.\66\
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\66\ See Revised Guidelines at 53. The Revised Guidelines
suggest agencies should apply a reasonableness standard to higher
SLTT floodplain management standards. FEMA has historically deferred
to higher local codes and standards from an SLTT 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 SLTT 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 SLTT 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 SLTT standards that
are unreasonably high.
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F. Summary of the 2023 Proposed Rule and Proposed FFRMS Policy

The proposed rule set forth how FEMA 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. The proposed rule included the following provisions,
which remain unchanged in this final rule except as indicated in
section I.C of this preamble.
Severability
The NPRM proposed to amend Sec. 9.3 to remove the authorities
section as redundant and to replace it with a severability section.
FEMA did not receive any comments on its proposal to include a
severability provision. The proposed severability provision is
therefore incorporated in Sec. 9.3 of this final rule without change.
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. 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
The NPRM proposed 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. The most significant definitional
change proposed by the FFRMS was the change to the meaning of
``floodplain.'' To harmonize this change in Sec. 9.4, the NPRM
proposed to revise a few existing definitions and removed other
definitions. In addition, the NPRM proposed to revise the remaining
sections of 44 CFR part 9 that

[[Page 56939]]

refer generally to the floodplain or refer specifically to the base (or
100-year) floodplain or the 0.2 percent annual chance (or 500-year)
floodplain, for clarity.
Distinction Between ``Actions Subject to the FFRMS'' and Other FEMA
Actions
Step 1 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 revised the definition of the ``floodplain'' that
agencies use for ``Federally funded projects,'' the NPRM proposed to
revise the first step to require FEMA to determine whether the proposed
action falls within the definition of an ``action subject to the
FFRMS.'' Under the proposed rule, if FEMA determined that the action is
a Federally funded project, i.e., if FEMA determined that the action
uses FEMA funds for new construction, substantial improvement, or to
address substantial damage to a structure or facility, the FFRMS
floodplain would apply. Alternatively, if FEMA determined that the
action did not fall under the definition of an action subject to the
FFRMS, the existing floodplain analysis would remain in place. For
example, if the action was considered non-critical, the 1 percent
annual chance floodplain applied, and if the action was considered
critical, the 0.2 percent annual chance floodplain applied.
Emphasis on Nature-Based Approaches
Executive Order 11988, as amended, directs agencies to use, where
possible, natural systems, ecosystem processes, and nature-based
approaches in the development of alternatives for Federal actions in
the floodplain. The NPRM proposed to incorporate this requirement in
Sec. 9.9, which addresses the requirement to consider practicable
alternatives when determining whether to locate an action in the
floodplain. This proposed requirement would apply regardless of whether
the proposed action is a FEMA Federally funded project. To further
explain this proposed requirement, the NPRM proposed 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. The NPRM also proposed 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.
Consistent with the Revised Guidelines, FEMA proposed to update the
factors integrated 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 functions of the
floodplain.
The NPRM proposed to update Step 1 of the 8-step process to
describe the floodplain determination for those actions that are
subject to the FFRMS, and Step 3 to require the consideration of
natural features and nature-based approaches in the identification and
evaluation of practicable alternatives. The NPRM also proposed to
incorporate certain additional exclusions from all or some of the 8-
steps for certain categories of actions being funded by FEMA.
Specifically, FEMA proposed to remove private bridges and debris
clearance and removal under section 502 of the Stafford Act from the 8-
step process, while also updating the monetary thresholds for actions
under sections 406 and 407 of the Stafford Act.
Proposed FFRMS Policy
The proposed FFRMS policy outlined the FFRMS approach FEMA would
use for actions subject to the FFRMS. FEMA's proposed FFRMS policy
would be applicable to actions in the FFRMS floodplain where FEMA funds
were used for new construction, substantial improvement, or to address
substantial damage. Specifically, the proposed policy would require
FEMA to determine the FFRMS floodplain according to the Climate-
Informed Science Approach (CISA) for all locations where the best-
available, actionable hydrologic and hydraulic data methods that
integrate current and future changes in flooding based on climate
science exist. When the CISA data was not available and not actionable
for a critical action, the proposed FFRMS policy would require FEMA to
determine the FFRMS floodplain as the area that would be inundated by
the higher of either the 0.2 percent annual chance flood or the 3 feet
of freeboard above the base flood elevation (BFE) for that location
(the Freeboard Value Approach or FVA). When the CISA is not available
and actionable for a non-critical action, the proposed FFRMS policy
would require FEMA to determine the FFRMS floodplain as the area that
would be inundated by the lower of either the 0.2 percent annual chance
flood or the 2 feet of freeboard above the BFE for that location (the
FVA). In coastal areas where the CISA data is not available and
actionable, the proposed FFRMS policy would require the FVA be used if
the available 0.2 percent annual chance flood elevation does not
account for wave action.
FEMA noted in the policy and the NPRM that it was coordinating
across the Federal government to develop tools, such as the FFRMS Job
Aid published in the public docket associated with this rulemaking,\67\
to assist agencies and stakeholders in determining the FFRMS floodplain
and would rely on those tools as the best available information in
making its determinations. The FFRMS Job Aid presents a general
methodology to identify the FFRMS floodplain for each of the three
approaches that relies on information from available FEMA FIRMs, U.S.
Geological Survey (USGS) ground elevations, and the 2022 Sea Level Rise
Technical Report sea level rise estimates.\68\
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\67\ See NPRM, 88 FR 67870, 67900 and FEMA Proposed Policy:
Federal Flood Risk Management Standard at pg. 5 (posted to the
public docket at <a href="https://www.regulations.gov/document/FEMA-2023-0026-0005">https://www.regulations.gov/document/FEMA-2023-0026-0005</a>). See also <a href="https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf">https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf</a> (last
accessed Jan. 24, 2024) and posted to the public docket for this
rulemaking at <a href="https://www.regulations.gov/document/FEMA-2023-0026-0004">https://www.regulations.gov/document/FEMA-2023-0026-0004</a>.
\68\ Id at Section 1.6.
---------------------------------------------------------------------------

FEMA's proposed FFRMS policy also required that nature-based
solutions and natural features be considered and implemented where
possible to all actions that are subject to Step 3 of the 8-step
decision-making process and not just those actions subject to the
FFRMS. Nature-based solutions and natural features must be considered
as an alternative action in Step 3. Where it is not possible to use
natural features and nature-based solutions as an alternative on their
own, they would be considered in conjunction with the proposed action
as a minimization measure in Step 5.
Updated FFRMS Resources
The FFRMS approaches include the CISA, an ``approach that uses the
best-available, actionable hydrologic and hydraulic data and methods
that integrate current and future changes in flooding based on climate
science.'' The Revised Guidelines and Appendix H help to define the
``best available and actionable science,'' stating that best-available
generally refers to science, data or information that is:

[[Page 56940]]

<bullet> transparent--clearly outlines assumptions, applications,
and limitations;
<bullet> technically credible--transparent subject matter or more
formal external peer review, as appropriate, of processes and source
data;
<bullet> usable--relevance and accessibility of the information to
its intended users; and
<bullet> legitimate--perceived by stakeholders to conform to
recognized principles, rules, or standards.
Legitimacy might be achieved by existing government planning
processes with the opportunity for public comment and engagement.\69\
---------------------------------------------------------------------------

\69\ See Revised Guidelines, Appendix H: Climate-Informed
Science Approach and Resources, pg.5
---------------------------------------------------------------------------

Actionable science includes theories, data, analyses, models,
projections, scenarios and tools that are:
<bullet> relevant to the decision under consideration;
<bullet> reliable in terms of its scientific or engineering basis
and appropriate level of peer review;
<bullet> understandable to those making the decision;
<bullet> supportive of decisions across wide spatial, temporal, and
organizational ranges, including those of time-sensitive operational
and capital investment decision-making;
<bullet> co-produced by scientists, practitioners, and
decisionmakers, and meet the needs of and are readily accessible by
stakeholders.\70\
---------------------------------------------------------------------------

\70\ See Revised Guidelines, pg. 51 and Appendix H: Climate-
Informed Science Approach and Resources, pg. 5.
---------------------------------------------------------------------------

Appendix H further defines a general framework for the CISA by
identifying types of changes that should be considered and discussing
the importance of considering operational life; provides an approach
for incorporating uncertainty into the CISA; and discusses a range of
data sources. The document does not prescribe or direct agencies to use
specific resources or methods.
In 2023, the Science Subgroup convened by the Flood Resilience
Interagency Working Group of the National Climate Task Force published
the FFRMS CISA State of the Science Report (``FFRMS CISA State of the
Science Report'').\71\ This report provides a review and update of the
best-available, actionable science that can support application of the
CISA, reflecting science and technology advancements made since 2015.
Like Appendix H from the Revised Guidelines, the FFRMS CISA State of
the Science Report provides non-prescriptive, scientific, and
engineering guidance for use by Federal agencies, their non-Federal
partners, and other entities in determining future flood hazards under
the FFRMS' CISA option. The FFRMS CISA State of the Science Report
refines the initial framework from Appendix H to define two specific
workflows for applying the CISA,\72\ while acknowledging that technical
competencies and capabilities needed to fully apply the CISA vary and
may exceed those available in most Federal agencies and many non-
Federal users.\73\ The Report states that workflow implementation can
be scaled to meet resource level and project requirements.\74\
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\71\ Available 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?trk=public_post_comment-text">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?trk=public_post_comment-text</a> (last accessed Mar. 12,
2024).
\72\ FFRMS CISA State of the Science Report, Coastal workflow
starting on pg. 11 and Riverine workflow starting on pg. 38.
\73\ Id. at pg. 5.
\74\ See id.
---------------------------------------------------------------------------

The FFRMS CISA State of the Science Report specifically identifies
the latest sea level rise projections from the National Climate
Assessment as actionable.\75\ The FFRMS State of the Science Report
states each agency should factor projected regional/local sea level
change into Federal investment decisions located as far inland as the
extent of estimated tidal influence, now and in the future, using the
most appropriate methods for the scale and consequence of the
decision.\76\ The FFRMS CISA State of the Science Report also suggests
that along low-lying coastal shorelines on the Atlantic and Gulf Coasts
not subject to runup or overtopping, the appropriate sea level rise
estimates can be used similar to freeboard.\77\
---------------------------------------------------------------------------

\75\ Id. at pgs. 21-22.
\76\ Id. at pg. 23.
\77\ The FFRMS CISA State of the Science Report identifies the
latest interagency Federal guidance for regionally-based SLR
projections as available and actionable by recommending that all
agencies should use these data as part of a CISA approach. At pg.
22, the Report states ``Federal agencies should apply this latest
interagency Federal guidance for regionally-based SLR projections.
Scenarios and time horizons should use a consistent national
approach based on risk tolerance and criticality.'' However, the
Report also warns against using the simplified approach with SLR in
areas subject to runup and overtopping on pg. 28 ``Notably, areas
subject to runup and overtopping can be very sensitive to changes in
water level (including due to SLR) and the variability of the
slope--so within a CISA implementation, these areas should be
treated with appropriate analysis and not simple linear addition of
flooding components.'' Based on these guidelines, the FFRMS Job Aid
establishes the use of simplified CISA in specific areas, namely in
some coastal environments, specifically along low-lying coastal
shorelines on the Atlantic and Gulf Coasts. See FFRMS Job Aid, pg.
10.
---------------------------------------------------------------------------

This is the basis of the interagency implementation and supporting
tools such as the FFRMS Job Aid.\78\ The FFRMS Job Aid is a resource to
help Federal agencies and their non-Federal partners (including
potential Federal financial aid recipients) conduct a screening to
determine if a proposed Federally funded action will be located in an
FFRMS floodplain, based on the CISA, FVA, or 0.2PFA. While Appendix H
of the Revised Guidelines and the FFRMS CISA State of the Science
Report provide more general approaches that could be used to apply the
CISA with sufficient time, money and expertise,\79\ FEMA does not
believe the data and science for these broader approaches are
sufficiently available and actionable for FEMA to implement at scale.
As explained below, FEMA prioritized the type and criticality of the
action involved, the availability and actionability of the data, and
equity concerns, and determined that applying the CISA through these
broader, more complex approaches is not appropriate at this time given
the agency's role in helping people recover from disasters in an
expedited manner. FEMA instead decided to use consensus interagency
approaches that are readily accessible to implement the CISA.
---------------------------------------------------------------------------

\78\ Available at <a href="https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf">https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf</a> (last
accessed Mar. 12, 2024).
\79\ FFRMS CISA State of the Science Report, pg.5, Coastal
workflow starting on pg. 11, and Riverine workflow starting on pg.
38.
---------------------------------------------------------------------------

To help FEMA implement the FFRMS, the agency will leverage
interagency tools. Specifically, FEMA will follow the methodology laid
out in the FFRMS Job Aid to determine whether a site for a proposed
action subject to the FFRMS is located within an FFRMS floodplain and
if so, the FFRMS flood elevation for that site. FEMA will follow the
CISA, FVA, or 0.2PFA Job Aid methodologies according to FEMA's FFRMS
policy. Consistent with the FFRMS Job Aid, FEMA finds that the CISA is
currently available and actionable for low-lying coastal shorelines on
the Atlantic and Gulf Coasts.\80\ If a site poses other complexities,
such as steep bluffs or shorelines armored by large seawalls or similar
flood-control structures, the CISA is not available and actionable \81\
and FEMA will instead use the FVA or 0.2PFA, per the agency's policy.
For the CISA, FVA and 0.2PFA, FEMA will follow the processes outlined
in 44 CFR 9.7 and in FEMA Policy 104-008-2: Guidance on the Use of
Available Flood

[[Page 56941]]

Hazard Information.\82\ For example, if a preliminary FIRM has more
restrictive flood hazard data than an effective FIRM, FEMA will use the
preliminary FIRM to identify the appropriate flood elevation.\83\
---------------------------------------------------------------------------

\80\ FFRMS Job Aid, pg. 10.
\81\ Id.
\82\ Available at <a href="https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf">https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf</a> (last
accessed Mar. 12, 2024).
\83\ See FFRMS Policy, pg. 5.
---------------------------------------------------------------------------

Consistent with the FFRMS Job Aid, to determine whether a proposed
site is located within the FFRMS floodplain under the CISA and FVA
approaches, FEMA will compare the ground elevation at the site (using
the U.S. Geological Survey National Map) with the FFRMS flood
elevation.\84\ To identify the FFRMS flood elevation under the CISA and
FVA, FEMA will identify the BFE at the site or the BFE at the nearest
mapped floodplain if the site is outside of the 1% annual chance
floodplain. Any relevant characteristics of the action or site will be
noted at this stage (e.g., service life, criticality, and flood
characteristics).\85\ For the CISA, FEMA will determine the FFRMS flood
elevation by using the NOAA Sea Level Rise Viewer.\86\ FEMA will use
the service life of the action to select the scenario year.\87\ For
non-critical actions, FEMA will use the intermediate scenario, and for
critical actions, FEMA will use the intermediate high scenario.\88\
FEMA will then add the appropriate amount of sea level rise to the BFE
to reach the FFRMS CISA flood elevation. If the site elevation is less
than the CISA flood elevation, then the site is in the FFRMS CISA
floodplain. For the FVA, 2 feet will be added to the BFE for non-
critical actions or 3 feet for critical actions to determine the FFRMS
FVA flood elevation.\89\ If the site elevation is less than the FVA
flood elevation, then the site is in the FFRMS FVA floodplain.\90\ For
the 0.2PFA, FEMA will compare the location of the site with the
horizontal extent of the 0.2 percent annual chance floodplain using the
FEMA Map Service Center or National Flood Hazard Layer.\91\ If the site
is within the floodplain, then it is within the FFRMS 0.2PFA
floodplain.\92\
---------------------------------------------------------------------------

\84\ FFRMS Job Aid, pgs. 8-9.
\85\ FFRMS Job Aid, pgs. 8-9 and pgs.13-15.
\86\ Id., pgs. 20-23.
\87\ Id.
\88\ FFRMS Job Aid, pg. 21.
\89\ FFRMS Job Aid, pg. 8.
\90\ Id., pgs. 8-9
\91\ Id., pgs. 30-31.
\92\ Id.
---------------------------------------------------------------------------

FEMA published these additional resources in the public docket with
this rulemaking \93\ to further assist the public in understanding the
FFRMS and the approaches utilized, including the availability and
actionability of the CISA data and how FEMA would implement the FFRMS
through application of the FFRMS Job Aid methodology. FEMA will
continue to collaborate across the Federal government to develop tools
to facilitate the implementation of CISA and the FFRMS. The IWG
recently released for comment a beta version of the Federal Flood
Standard Support Tool (FFSST), a novel, interactive, map-based tool
that incorporates new data to help users identify if a Federally funded
project is in the FFRMS floodplain.\94\
---------------------------------------------------------------------------

\93\ See <a href="https://www.regulations.gov/document/FEMA-2023-0026-0007">https://www.regulations.gov/document/FEMA-2023-0026-0007</a> and <a href="https://www.regulations.gov/document/FEMA-2023-0026-0004">https://www.regulations.gov/document/FEMA-2023-0026-0004</a>.
\94\ 89 FR 25674 (Apr. 11, 2024).
---------------------------------------------------------------------------

G. Summary of FEMA's Final Rule and Updated Policy

This final rule implements Executive Order 11988, as amended, the
FFRMS, and the Revised Guidelines, while also updating FEMA's 8-step
process. Consistent with the changes proposed in the NPRM, FEMA is
incorporating a severability clause into part 9; updating definitions
to implement the FFRMS and reflect current policy and practice;
providing the applicable effective date for the changes made in the
final rule and further clarifying the rule's scope; updating how FEMA
determines whether an action is in a floodplain, consistent with the
FFRMS approaches when the action is subject to the FFRMS; and adding an
emphasis on nature-based approaches in the 8-step process consistent
with Executive Order 11988, as amended.
In this final rule, FEMA incorporates edits to reflect commenter
feedback. Specifically, in Sec. 9.7(c)(3), FEMA is adding agencies
from Federal and Indian Tribal governments as potential sources of
information in making the floodplain determination. These changes
better ensure that FEMA will effectively consider relevant and
appropriate data in making the floodplain determination under part 9.
FEMA is also making clarifying edits in Sec. 9.5(a)(3) to clarify that
copies of the legacy regulations will be available on the agency's
website and to Sec. 9.7(c)(3) to clarify that FEMA may consider
information from the entities listed. FEMA is also making minor
technical edits in Sec. 9.7(c)(1)(i)(C) and Sec. 9.11(d)(3)(ii).
FFRMS Policy
FEMA's FFRMS policy is also being finalized with the publication of
this rule and will be effective with the rule's implementation. The
FFRMS policy provides guidance on how FEMA will implement the FFRMS
across FEMA's programs and further incorporate nature-based solutions
into the 8-step process. FEMA is making minor clarifying edits to the
FFRMS policy consistent with commenters' suggestions by further
clarifying the use of the 0.2PFA in coastal areas and making other
technical edits to the document for readability. FEMA is also
clarifying in the FFRMS policy that the agency will leverage the FFRMS
Job Aid when implementing the FFRMS.

III. Discussion of Public Comments and FEMA's Responses

A. Summary of Public Comments

The NPRM public comment period closed on December 1, 2023, and FEMA
received 47 germane comments.\95\ Commenters included non-profit
organizations; individuals; local governments; State governments and
State government organizations; and for-profit entities. The majority
of comments were supportive of FEMA's rule and policy approach to
implementing the FFRMS and other updates to part 9. Commenters focused
on the regulatory impact analysis (RIA) accompanying the rule; the CISA
and the data FEMA would use to determine each of the FFRMS approaches;
FEMA's implementation of the FFRMS; and the 8-step process detailed in
part 9. FEMA describes the specific revisions in the final rule and
addresses commenters' specific concerns below.
---------------------------------------------------------------------------

\95\ One commenter provided a duplicate comment posted to both
the rulemaking and FFRMS policy comments.
---------------------------------------------------------------------------

B. Comments in Support of the Rule

The majority of commenters were generally supportive of the rule
and accompanying FFRMS policy.\96\ Commenters noted appreciation of
FEMA's rulemaking efforts to enhance the resilience and sustainability
of communities and ecosystems that are vulnerable to flooding. These
commenters stated the FFRMS was a critical policy tool to reduce risks
and promote sound floodplain management and wetlands protection
practices, as well as fiscal responsibility.
---------------------------------------------------------------------------

\96\ 22 commenters expressed direct support for the rule while
19 other commenters expressed only specific recommendations to
improve the rule.
---------------------------------------------------------------------------

Commenters were supportive of the agency's use of the FFRMS
approaches in the rulemaking and accompanying FFRMS policy document. A
commenter noted the incorporation of the CISA, FVA, and 0.2PFA
reflected FEMA's commitment to using diverse and

[[Page 56942]]

adaptive strategies based on the best-available scientific knowledge.
Another commenter supported the floodplain definition revisions,
stating that an expanded floodplain definition would ensure that more
projects were built with resilience in mind when compared to current
projects. A commenter stated FEMA's preferred CISA approach would
result in Federally funded projects that were more resilient to current
and future flooding and ensured a wiser use of taxpayer dollars. The
commenter stated stronger standards were feasible to implement, as many
jurisdictions already have existing stronger building and land-use
standards. Commenters also indicated support for FEMA's emphasis on
using natural systems, ecosystem processes, and nature-based
approaches.
Timing
Comment: Some commenters supporting the rule requested FEMA quickly
finalize and implement the final rule. While requesting FEMA work
quickly to finalize and implement the rule, one commenter noted that
the partial implementation policies in place did not fully implement
FFRMS as they did not extend the horizontal floodplain. This commenter
requested FEMA also integrate FFRMS into the minimum floodplain
management standards for the NFIP. The commenter also stated FEMA
should ensure FFRMS was sufficiently staffed and should develop a
comprehensive plan to track enforcement and any concerns such as
environmental justice to ensure effective implementation of the rule.
FEMA Response: FEMA agrees with the commenters on the importance of
finalizing and implementing the rule and FFRMS policy. FEMA is issuing
this final rule with an effective date of September 9, 2024. As
explained in Sec. 9.5(a)(3), the FFRMS applies only 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.\97\
---------------------------------------------------------------------------

\97\ Note that 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. 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 Jan. 24, 2024) 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 Jan. 24, 2024). Some current FEMA
actions may be subject to these partial implementation policies;
however, those actions would not be subject to this final rule or
policy.
---------------------------------------------------------------------------

FEMA declines to accommodate the commenter's request to integrate
the FFRMS into the minimum floodplain management standards for the NFIP
because it is beyond the scope of this rulemaking. The NFIP is a
program through which property owners in participating communities can
purchase Federal flood insurance as a protection against flood
losses.\98\ As a condition of eligibility, a community must adopt and
enforce floodplain management regulations that meet or exceed the NFIP
minimum floodplain management criteria developed by the
Administrator.\99\ Further information regarding FEMA's minimum
floodplain management standards for the NFIP can be found at 44 CFR
part 59 et seq. Because this rule only applies to ``actions subject to
the FFRMS,'' \100\ this rule does not change any FEMA standards
applicable to community or individual participation in any aspect of
the NFIP. In general, changes to 44 CFR part 59 et seq would require a
rulemaking to revise the appropriate sections of the CFR.
---------------------------------------------------------------------------

\98\ 42 U.S.C. 4011(a).
\99\ 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b),
59.22(a)(3), 60.1(d).
\100\ See ``Guidelines for Implementing Executive Order 11998,
Floodplain Management, and Executive Order 13690, Establishing a
Federal Flood Risk Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct.
22, 2015) (providing notice of the availability of the Revised
Guidelines in the docket for the rulemaking at <a href="https://www.regulations.gov/document/FEMA-2015-0006-0358">https://www.regulations.gov/document/FEMA-2015-0006-0358</a> (main content) and
<a href="https://www.regulations.gov/document/FEMA-2015-0006-0372">https://www.regulations.gov/document/FEMA-2015-0006-0372</a>
(appendices)) also available 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 Mar. 11, 2024).
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As an illustrative example, if an NFIP-participating community owns
a structure in a floodplain that has been substantially damaged and the
community decides to repair it using community funds, funding from a
flood insurance payment, or other funding that is not FEMA grant
funding, the community's floodplain management regulations, not the
FFRMS, would apply to the repair project. However, if that same
structure was substantially damaged by a disaster event, and the
community applied for assistance under a FEMA grant program like the
Public Assistance program, the FFRMS would apply to that repair
project.
FEMA agrees with the commenter that it is important to adequately
staff for FFRMS implementation. FEMA is accordingly ensuring that
sufficient staff at headquarters and regional offices are appropriately
trained to provide technical assistance. FEMA currently leverages the
8-step process detailed in 44 CFR part 9 as the mechanism to implement
Executive Order 11988. Step 8 of the process found at 44 CFR 9.6(b)
requires FEMA to review the implementation and post-implementation
phases of the proposed action to ensure that the requirements stated in
Sec. 9.11 are fully implemented. Under this provision, oversight
responsibility is integrated into existing processes associated with
FEMA's grant management requirements. FEMA is not making changes to
these requirements in the final rule and will continue to use the
current process to ensure compliance with the FFRMS and Executive Order
11988, as amended. 2 CFR 200.339 also allows FEMA to take action to
remedy a recipient's noncompliance with federal requirements, including
those required by 44 CFR part 9, such as imposing new conditions on the
award or deobligating funding for the award if a recipient does not
adhere to the requirements set forth during the part 9 review process.

C. Comments in General Opposition to the Rule

Four commenters expressed opposition to the rule overall. Those
commenters raised concerns about the complexity of the FFRMS
approaches, uncertainty about the CISA standard, and the application of
FFRMS to specific types of FEMA actions. The commenters stated concerns
with the potential increased costs associated with implementing FFRMS
and with FEMA's economic impact analysis accompanying the rule. The
commenters also stated concerns with implementing the FFRMS given
conflicting Federal, State, local, and other requirements. Commenters
stated the FFRMS was a ``one-size-fits-all'' approach that lacked the
flexibility to address regional and local needs. Commenters stated the
use of the CISA introduced uncertainty into the regulations contrary to
the fundamental principles outlined in Executive Orders 12866 and
13563. Commenters also stated FEMA's analysis of the costs and benefits
associated with the rulemaking did not adequately quantify the costs
and benefits of several components of the risk reduction strategies in
the rule. Commenters raised questions regarding FEMA's statutory
authority to implement the rule. One commenter

[[Page 56943]]

stated Congress should define the floodplain. This commenter raised
similar concerns regarding the use of the CISA and lack of data sources
that map the FFRMS floodplain. FEMA responds to some of the general
comments in opposition to the rule in the comment summaries and
responses immediately below and responds in more detail to the
remainder of the comments in the following sections of the preamble.
Comment: One commenter requested FEMA extend the comment deadline
associated with the rule for an additional 60 days. The commenter
requested an extension of the comment period given the complexity of
the rule and policy and to implement extensive public outreach.
FEMA Response: FEMA received 48 comments to the public docket
associated with this rulemaking and no other requests to extend the
comment period were received. The 60-day comment period provided is
consistent with 44 CFR 1.3(b) and Executive Orders 12866 and 13563.
This timeframe provided a reasonable opportunity for public comment and
is particularly appropriate given FEMA's prior engagement on this
topic. FEMA completed extensive outreach in 2015 as part of the
development and publication of the Revised Guidelines, and also sought
public input in connection with the agency's prior NPRM in 2016.\101\
Additional outreach will be completed as part of the rule's
implementation as FEMA will distribute additional information to SLTT
partners and the public explaining again what the FFRMS is and how the
agency will further implement the Executive Orders. FEMA's FFRMS policy
will also be reassessed on a four-year cycle to ensure the approach
continues to meet the goals of Executive Order 11988, as amended.
During the four-year review process, FEMA's FFRMS policy will be
reviewed, revised, extended, and/or rescinded as appropriate.
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\101\ Established by the 2013 Climate Action Plan, the Climate
Task Force met with stakeholders from State, local, Tribal, and
territorial governments; private businesses; trade associations;
academic organizations; civil society; and other stakeholders to
develop and provide recommendations in November 2014. 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 Jan. 24, 2024). FEMA,
acting on behalf of the MitFLG and consistent with Executive Order
13690, published a draft of the Revised Guidelines for notice and
comment on February 5, 2015 at 80 FR 6530. During the public comment
period, over 25 meetings were held across the country with State,
local, and Tribal officials and interested stakeholders to discuss
the Revised Guidelines. There were also 9 public listening sessions
across the country that were attended by over 700 participants from
State, local, and Tribal governments, and other stakeholder
organizations to discuss the Revised Guidelines. The final Revised
Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA
published a notice of proposed rulemaking to implement FFRMS
initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice
of availability and request for comment on a FFRMS policy at 81 FR
56558 (Aug. 22, 2016) and a notice of availability regarding a draft
report at 81 FR 64403 (Sept. 20, 2016).
---------------------------------------------------------------------------

FEMA does not believe additional engagement is needed to finalize
this rule. All but a few of commenters expressed support for the rule
and FEMA's FFRMS policy and many requested swift implementation,
consistent with the need to protect federal dollars and communities
from increasing flood risk.
Comment: One commenter stated the rulemaking was premature in the
absence of a clearly defined process for implementing the CISA and
urged FEMA to withdraw the rule from consideration. The commenter
expressed concern that FEMA will take a haphazard approach--completing
each analysis of the extent and elevation of the CISA floodplain on a
case-by-case basis and doing so using data that may not be complete or
is not be widely known or available to the public. The commenter stated
that in the end, neither the process nor the outcome will be
predictable or replicable.
FEMA Response: FEMA disagrees. This rulemaking is not premature,
and FEMA provided information in and accompanying the NPRM explaining
how the CISA and the FFRMS will be implemented. Each analysis will be
completed on a case-by-case basis consistent with the current 8-step
process, which has been in place for over four decades, to determine
the floodplain, but the data used to make the analysis is publicly
available and replicable using the FFRMS CISA State of the Science
Report, the FFRMS Job Aid, and FEMA's FFRMS policy. As explained above,
the FFRMS CISA State of the Science Report identifies the latest sea
level rise projections from the National Climate Assessment as
available and actionable data and the appropriate sea level rise
estimates can be used to approximate future 1 percent annual chance
flood levels. These estimates can simply be added to the current 1
percent annual chance flood elevation to approximate the future 1
percent annual chance flood level, in low-lying coastal shorelines on
the Atlantic and Gulf Coasts not subject to runup or overtopping. The
FFRMS Job Aid \102\ provides the methodology FEMA will use to determine
the floodplain and elevation under the CISA where data is actionable
and available (namely in low-lying coastal shorelines on the Atlantic
and Gulf Coasts consistent with the FFRMS CISA State of the Science
Report). FEMA's FFRMS policy further explains that the CISA is used
where actionable and available and provides alternatives where such
data is not actionable and/or available. The CISA analysis can be
completed using these publicly available materials for areas with
actionable and available data. FEMA anticipates actionable and
available data will increase over time and the interagency tools
provided will be updated to reflect the new data.
---------------------------------------------------------------------------

\102\ Available at <a href="https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf">https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf</a> (last
accessed Mar. 12, 2024).
---------------------------------------------------------------------------

Comments: Two commenters requested FEMA complete additional
analyses before finalizing the rule. Both commenters referenced other
flood-related regulatory and policy actions, including the Technical
Mapping Advisory Council (TMAC)'s proposal to increase the regulatory
floodplain and increase the NFIP floodplain management standards for
land management and use; Risk Rating 2.0 for flood insurance premiums;
and USACE's proposed levee safety updates as well as risk informed
decision making.
One commenter requested the rule be deferred until FEMA completed a
cumulative impacts assessment and considered associated actions to
mitigate the impacts of the actions above on communities participating
in the NFIP, mapping and accreditation, low to moderate income
families, and disadvantaged communities. The commenter further
requested FEMA withdraw the rule until a regulatory analysis applying
sound cost-benefit analysis principles and a comprehensive socio-
economic impact analyses to address the full and intended scope of
FFRMS were completed. The commenter stated the regulatory impact
analysis should address cumulative impacts and the need for mitigation
of impacts to community property values, tax bases, the distribution of
real income, as well as the impacts on affordable housing and low to
moderate income families and disadvantaged communities.
The other commenter stated that different flood regulations and
policies may overlap with or duplicate each other and potentially lead
to redundancy, confusion, and additional costs. The commenter requested
FEMA conduct a more thorough quantitative cost-benefit analysis,
considering the

[[Page 56944]]

cumulative effects of recent floodplain governing rules to make well
informed decisions regarding appropriate risk reduction strategies and
ensure a thorough understanding of the overall impact of the rule's
implementation. The commenter requested FEMA conduct a comprehensive
assessment of cumulative impacts to ensure a more informed and
coordinated approach and requested that FEMA provide additional
documentation on how FFRMS would impact other Federal agencies'
programs, such as USACE's civil works projects and whether FEMA's FFRMS
policy would supersede other Federal agencies' rules and regulations.
The commenter stated FEMA relied on a subjective assessment of the
rule's costs and benefits. The commenter asked FEMA to closely
coordinate with other agencies that typically co-regulate projects,
including USACE with water resources projects.
The commenter also stated that the FFRMS could lead to further
deterioration of key infrastructure, where meeting the new, higher
standards is not technically or financially feasible, resulting in
communities leaving the infrastructure to deteriorate in place and not
serve the public need. The commenter stated that these types of costs
should be considered in the regulatory analyses.
FEMA Response: FEMA disagrees this rule should be deferred. While
FEMA understands the commenters' interest in the policy activities
mentioned, the agency does not believe those actions are relevant to
this rulemaking or require additional analysis to finalize this rule.
The commenters reference a recommendation made by the TMAC in a recent
annual report \103\ that FEMA expand the NFIP regulatory floodplain as
defined in 44 CFR 59.1 to which the NFIP's minimum floodplain
management criteria set forth in 44 CFR 60.3 applies, and the
commenters suggest that FEMA must delay this rulemaking until it has
analyzed the effects of that recommendation. That is not necessary
because FEMA has not implemented the TMAC recommendation and therefore
it has no current effect on communities. The TMAC is a Federal advisory
committee established to review and make recommendations to FEMA on
matters related to the national flood mapping program authorized under
the Biggert-Waters Flood Insurance Reform Act of 2012.\104\ The
national flood mapping program requires FEMA to review, update, and
maintain NFIP rate maps.\105\ It is outside the scope of this rule.
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\103\ TMAC 2023 Interim Report, available at <a href="https://www.fema.gov/sites/default/files/documents/fema_rm-tmac-2023-interim-report-30OCT2023.pdf">https://www.fema.gov/sites/default/files/documents/fema_rm-tmac-2023-interim-report-30OCT2023.pdf</a> (last accessed Mar. 28, 2024).
\104\ 42 U.S.C. 4101a.
\105\ 42 U.S.C. 4101b.
---------------------------------------------------------------------------

The commenters also refer to the NFIP's pricing approach \106\ for
NFIP policyholders as a new ``flood regulation'' that requires analysis
prior to finalizing this rulemaking. However, this rulemaking does not
impact the NFIP's site-specific actions, such as how FEMA rates the
premium for a flood insurance policy. Further, the population of NFIP
policyholders is much larger than the number of FEMA grant recipients
who will be impacted by this rule.
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\106\ Also known as Risk Rating 2.0, Equity in Action. See
<a href="https://www.fema.gov/flood-insurance/risk-rating">https://www.fema.gov/flood-insurance/risk-rating</a> (last accessed Mar.
18, 2024).
---------------------------------------------------------------------------

One commenter states FEMA needs to account for how the rule will
impact mapping and accreditation under the NFIP; however, the rule does
not appreciably impact those areas of the NFIP. This rule and the
accompanying policy implement the FFRMS for actions where FEMA funds
are used for new construction, substantial improvement or repairs to
address substantial damage, and requires that nature-based solutions
and natural features be considered and implemented where possible to
all actions that are subject to Step 3 of the 8-step decision-making
process. Nature-based solutions and natural features must be considered
as an alternative action in Step 3. Where it is not possible to use
natural features and nature-based solutions as an alternative on their
own, they would be considered in conjunction with the proposed action
as a minimization measure in Step 5. Neither FEMA's flood mapping
program nor its accreditation of levees under the NFIP are actions
subject to the FFRMS and, to the extent that any programmatic or policy
change to either of those areas are required to undergo the 8-step
process under 44 CFR part 9, it is unlikely that a consideration of
nature-based solutions will result in changes with demonstrable
impacts. FEMA cannot address the other actions referenced, such as the
USACE's civil works projects and levee safety updates, as these involve
other Federal agencies, and questions regarding those actions are best
addressed by those agencies directly.
FEMA believes that the commenter's concerns about this rule's
economic impacts is inconsistent with this rule's relatively limited
applicability. FEMA defines an ``action subject to the FFRMS'' as ``any
action where FEMA funds are used for new construction, substantial
improvement, or to address substantial damage to a structure or
facility,'' consistent with Executive Order 11988, as amended, and the
Revised Guidelines. The FFRMS applies to grants for projects funding
the new construction, substantial improvement, or repair of substantial
damage under FEMA programs such as the IA, PA, and HMA programs, and
grants processed by FEMA's Grants Programs Directorate (GPD) (involving
grants for preparedness activities). This rule does not regulate
privately funded activity in the floodplain. As such, the
implementation of the FFRMS will have negligible impacts on community
property values, tax bases, and the distribution of real income.
Additionally, FEMA expects the impacts on affordable housing for low to
moderate income households and disadvantaged communities to be minimal
since most actions subject to FFRMS requirements are non-residential.
FEMA only funds residential construction in the IA and HMA programs;
FEMA funds 153 residential IA projects and 268 HMA residential projects
per year on average. The majority of the costs associated with FFRMS
requirements will be covered by FEMA funding.
Comment: A commenter stated the FFRMS policy and rule were one-
sided, as they limited how people could use and live in flood-prone
areas without a clear goal to support economic growth or sensible
development within reasonable limits. The commenter stated Congress
likely would not endorse a flood risk strategy that did not consider
using flood-prone areas optimally for the country's benefit. The
commenter stated the rule's benefits were unclear given the emphasis on
constraints and a lack of consideration for economic development as
part of resilience. The commenter recommended that FEMA adjust the
policy to include efficient and smart use of flood-prone areas while
acknowledging the limitations on development.
FEMA Response: The revisions to part 9 are consistent with FEMA's
long-standing requirement as part of implementation of Executive Order
11988, as amended, to only perform or fund actions within or affecting
floodplains and wetlands if those actions are the only practicable
alternative. FEMA's regulations provide for consideration of the need
for economic development and community resilience, while also
bolstering the resilience of communities and Federal

[[Page 56945]]

assets against the impacts of flooding. For instance, through the 8-
step process, FEMA considers alternative locations, alternative
actions, natural features, nature-based approaches, and the no action
alternative under the practicability analysis. The definition of
``practicable'' makes clear that practicability depends on the
situation and includes consideration of all pertinent factors, such as
natural environment, social concerns, economic aspects, legal
constraints, and agency authorities. In addition, if there is no
practicable alternative, FEMA will perform or fund the action in the
floodplain or wetland and will minimize any adverse impacts when doing
so. Under Sec. 9.9 as well, in determining the practicability of the
alternatives, FEMA considers economic aspects.

D. FEMA's Authority for Part 9 and Revisions

Two commenters wrote comments concurring with FEMA's statutory and
other authority for the rulemaking.
Comments: Both commenters stated the rule was a valid use of FEMA's
regulatory authority, citing to the NFIA, as amended by the Flood
Disaster Protection Act (42 U.S.C. 4001 et seq.), the Stafford Act (42
U.S.C. 5121 et seq.), and the NEPA (42 U.S.C. 4321 et seq.). One
commenter noted the Congressional intent in the Stafford Act for the
Federal Government to develop land use and construction regulations to
help State and local governments mitigate risk and reduce losses and
FEMA's broad discretion to define ``safe land use and construction
practices'' as a condition of Stafford Act funding for both public and
private structures.\107\ The commenter stated section 101 of NEPA
required FEMA to use all practicable means to ensure Federal plans,
programs, and resources ``(1) fulfill the responsibilities of each
generation as trustee of the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and
esthetically and culturally pleasing surroundings; [and] (3) attain the
widest range of beneficial uses of the environment without degradation,
risk to health or safety, or other undesirable and unintended
consequences'' among other priorities.\108\ The commenter stated the
FFRMS reflects a tradition of executive action to enforce reasonable
floodplain management and wetland protection. Another commenter noted
the NFIA and Flood Disaster Protection Act require FEMA to establish
land use criteria for floodplain management \109\ and that NEPA
requires Federal agencies to evaluate the environmental and related
social and economic effects of their proposed actions, which includes
the evaluation of the impacts of proposed actions in the
floodplains.\110\ Further, the commenter stated the Stafford Act
directed FEMA to encourage ``hazard mitigation measures to reduce
losses from disasters, including development of land use and
construction regulations.'' \111\ The commenter stated FEMA's
regulations were consistent with these legislative directives.
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\107\ 42 U.S.C. 5165a.
\108\ 42 U.S.C. 4331(b).
\109\ 42 U.S.C. 4102, 42 U.S.C. 4104c.
\110\ 42 U.S.C. 4332(2)(C).
\111\ 42 U.S.C. 5121(b)(5).
---------------------------------------------------------------------------

FEMA Response: FEMA agrees with the commenter that the agency has
statutory authority to implement FFRMS. Please refer to section II.B
for a description of FEMA's statutory authority to implement grant
programs and to require its grant recipients to carry out repairs or
construction in accordance with specific standards.
Three commenters raised concerns regarding FEMA's legal authority
to amend part 9 and implement FFRMS.
Comment: One commenter stated Congress should establish the
definition of floodplains. The commenter acknowledged defining the
geographic scope of a floodplain was not an easy task, but stated the
implications on landowners and others made it a job best left for
Congress. The commenter stated that Congress drafted and debated
language over the last twenty plus years on the issue and stated that
Congress has had the opportunity to revisit and refine Federal
floodplain policies as part of NFIP regular reauthorization process.
The commenter stated it was bad public policy to delegate defining the
limits of Federal authority to the agencies, citing to challenges other
agencies have had defining ``waters of the United States'' and
reiterating the need for Congressional action.
FEMA Response: This comment appears to confuse the definition of
floodplain under the NFIP with the definition of floodplain that is
being altered with this rulemaking, and, as such, makes incorrect
statements and assumptions about the role Congress has played or should
play. This rulemaking is not altering the definition of floodplain
under the NFIP. The NFIP is a program through which property owners in
participating communities can purchase Federal flood insurance as a
protection against flood losses.\112\ As a condition of eligibility, a
community must adopt and enforce floodplain management regulations that
meet or exceed the NFIP minimum floodplain management criteria
developed by the Administrator.\113\ The floodplain and other
definitions governing the NFIP can be found at 44 CFR 59.1. This
rulemaking is updating the definition of floodplain in 44 CFR part 9 as
applied to actions subject to the FFRMS, defined as actions where FEMA
funds are used for new construction, substantial improvement, or
repairs to address substantial damage to structures and
facilities.\114\ As set forth, in section II.B, Congress has authorized
FEMA to implement grant programs and to require its grant recipients to
carry out repairs or construction in accordance with specific
standards.
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\112\ 42 U.S.C. 4011(a).
\113\ 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b),
59.22(a)(3), 60.1(d).
\114\ See ``Guidelines for Implementing Executive Order 11998,
Floodplain Management, and Executive Order 13690, Establishing a
Federal Flood Risk Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct.
22, 2015) (providing notice of the availability of the Revised
Guidelines in the docket for the rulemaking at <a href="https://www.regulations.gov/document/FEMA-2015-0006-0358">https://www.regulations.gov/document/FEMA-2015-0006-0358</a> (main content) and
<a href="https://www.regulations.gov/document/FEMA-2015-0006-0372">https://www.regulations.gov/document/FEMA-2015-0006-0372</a>
(appendices)) also available 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 Mar. 11, 2024).
---------------------------------------------------------------------------

Comment: Two commenters requested FEMA cite the specific and clear
Congressional authority for each objective and mandate of FFRMS. Both
commenters noted the President may have the authority to impose
mandates on Federal projects as cost-saving measures, but regulation of
private and non-Federal activities within the floodplain was limited to
those jurisdictions where local communities have imposed upon
themselves the burden of floodplain regulation as a condition of
participation in the NFIP. The commenters stated that applying the
FFRMS to private and non-Federal government entities under other
regulatory programs was outside FEMA's statutory authority.
FEMA Response: Please refer to section II.B for a description of
FEMA's statutory authority to implement grant programs and to require
its grant recipients to carry out repairs or construction in accordance
with specific standards. Contrary to the commenter's assertions, this
rule applies the FFRMS to FEMA funded projects for new construction,
substantial improvement, and repairs to address substantial damage. It
does not regulate privately funded activity in the floodplain, it does
not alter the definition of floodplain under the NFIP, and it does not
apply

[[Page 56946]]

the FFRMS to any programs other than FEMA's grant programs.
Comment: One of the commenters stated that FEMA was acting without
clear statutory authority as implementing the FFRMS fell within the
scope of a major question because of the standard's aggregate economic
impacts over time. Two commenters recommended FEMA remove any
application of FFRMS to private and non-Federal activities covered by
permitting, loan, or grant-in-aid programs administered by Federal
agencies except where clear statutory authority has been granted and
also sever any and all objectives related to regulating floodplain
activities to protect wetlands. The commenters stated Federal authority
over wetlands was limited by the Clean Water Act and recent Supreme
Court rulings, including Sackett v. EPA.\115\
---------------------------------------------------------------------------

\115\ Sackett v. EPA, 598 U.S. 651 (2023).
---------------------------------------------------------------------------

FEMA Response: FEMA disagrees the aggregate economic impacts over
time associated with this rulemaking are a matter of such ``deep
economic and political significance'' as to constitute a ``major
question,'' as described by the Supreme Court in West Virginia v.
EPA.\116\ While FEMA expects that this rule would carry important
benefits and would ultimately save significant taxpayer dollars, this
rule is not akin to the rule in West Virginia, where the agency's ``own
modeling concluded that the rule would entail billions of dollars in
compliance costs (to be paid in the form of higher energy prices),
require the retirement of dozens of coal-fired plants, and eliminate
tens of thousands of jobs across various sectors.'' \117\ This
rulemaking requires FEMA grant recipients to build a subset of the
construction projects that FEMA funds to a higher standard in an
expanded floodplain. There is an increase in the costs associated with
this more resilient building standard, but that increase is paid
primarily by FEMA and is ultimately a fraction of what grant recipients
might already spend using Federal funds to accomplish such
construction.
---------------------------------------------------------------------------

\116\ 142 S. Ct. 2587 (2022).
\117\ Id. at 2604.
---------------------------------------------------------------------------

Even if the major questions doctrine did apply, there is clear
statutory authority and longstanding precedent for the rule. FEMA has
authority to require application of the FFRMS as a condition of funding
in its grant programs based on the grant programs' authorizing
statutes. Congress granted FEMA the authority to provide Federal
assistance through multiple grant programs under the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (Stafford Act),\118\ the
NFIA,\119\ the Homeland Security Act of 2002,\120\ the Federal Fire
Prevention and Control Act of 1974,\121\ the Earthquake Hazards
Reduction Act of 1977,\122\ and various other appropriations acts.
Under each of these authorities, FEMA may set grant eligibility
criteria consistent with the respective purposes of such programs and
FEMA's mission, including to protect Federal investments from the risks
of further damage.\123\ Under the Stafford Act and the NFIA, which
authorize the programs that fund the majority of the actions subject to
the FFRMS, FEMA has general rulemaking authority.\124\ Further, FEMA
has explicit authority under the Stafford Act to set the minimum
standards for safe land use and construction standards required in the
repair or construction of private and public facilities.\125\ Further,
in the time since Executive Order 11988 was first issued in 1977 and
FEMA issued its implementing regulations at 44 CFR part 9 in 1979 and
1980, Congress has amended FEMA's governing authorities multiple times
without overriding part 9.\126\ Consistent with the approach that FEMA
has taken for decades, this rule revises part 9 pursuant to FEMA's
statutory authorities and in line with Executive Order 11988, as
amended.
---------------------------------------------------------------------------

\118\ 42 U.S.C. 5121 et seq.
\119\ 42 U.S.C. 4001 et seq.
\120\ 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12), which
specifically charges the Administrator with supervising various
grant programs authorized under the HSA. Such grant programs have
long been governed by floodplain management regulations at 44 CFR
part 9, see, e.g., 44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept.
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing Federal
awarding agencies to manage and administer Federal awards in a
manner so as to ensure that Federal funding is expended and
associated programs are implemented in full accordance with the U.S.
Constitution, Federal Law, and public policy requirements including,
but not limited to, those protecting public welfare and the
environment; and requiring the Federal awarding agency to
communicate to the non-Federal entity all relevant public policy
requirements, and incorporate them either directly or by reference
in the terms and conditions of the Federal award.).
\121\ 15 U.S.C. 2229 and 2229a.
\122\ 42 U.S.C. 7701 et seq.
\123\ See, e.g., 6 U.S.C. 609 (granting FEMA approval authority
over grant funds for construction awards under its Homeland Security
Grant Program, State Homeland Security Grant Program, Urban Area
Security Initiative, Operation Stonegarden, Tribal Homeland Security
Grant Program, and Nonprofit Security Grant Program); 6 U.S.C.
1182(d)(1) (granting DHS the authority to determine the grant
requirements for the Intercity Bus Security Grant Program); 6 U.S.C.
1163(c)(1) (granting FEMA the authority to determine the grant
requirements for the Intercity Passenger Rail grant program); 46
U.S.C. 70101 (granting DHS approval authority over grant funds for
construction awards under the Port Security Grant Program); 6 U.S.C.
1135(c)(1) (granting DHS the authority to determine the grant
requirements for the Transit Security Grant Program); 33 U.S.C.
467f-2(c)(2)(A) (granting FEMA the authority to set the minimum
eligibility requirements for the Rehabilitation of High Hazard Dam
Program).
\124\ See 42 U.S.C. 5164; 42 U.S.C. 4128(a) and (b).
\125\ 42 U.S.C. 5165a(a)(1)-(2).
\126\ See, e.g., Disaster Mitigation Act of 2000, Public Law
106-390, 114 Stat. 1552 (Oct. 30, 2000); Post-Katrina Emergency
Management Reform Act of 2006, Public Law 109-295, 120 Stat. 1452
(Oct. 4, 2006); Sandy Recovery Improvement Act of 2013; Public Law
113-2, 127 Stat. 47 (Jan. 29, 2013); Disaster Recovery Reform Act of
2018, Public Law 115-254, 132 Stat. 3448 (Oct. 5, 2018).
---------------------------------------------------------------------------

Finally, the comments related to wetlands and the Supreme Court's
decision in Sackett v. EPA are not germane to this rulemaking. FEMA's
proposed changes to the definition of wetlands within the regulation
was limited to reorganizing the placement of examples within the
definition and removing an outdated resource. FEMA's proposed changes
do not change how the agency makes wetland determinations.

E. Definitions

FEMA received over 40 specific comments on the proposed rule's
definitions in Sec. 9.4. Commenters were generally supportive of the
proposed revisions but sought clarification or offered suggestions to
enhance the definitions provided in the proposed rule. FEMA has
carefully reviewed the commenters' suggestions and is not revising the
NPRM definitions in this final rule but is providing multiple
clarifications below.
1. General Comments on Definitions
Comments: Commenters requested additional clarity regarding
definitions and additional engagement on definitions generally. A
commenter requested FEMA provide clear definitions and describe
abbreviations before they are used in the rulemaking, policy, and any
additional guidance or resources provided. The commenter provided an
example of the term ``AC floodplain'' used in a graphic without
definition. Another commenter requested FEMA engage stakeholders from a
range of relevant backgrounds in the review process to gather varied
perspectives and ensure that definitions are clear and universally
understood.
FEMA Response: FEMA will distribute additional resources to the
public and SLTT partners after the rule's publication to ensure that
stakeholders understand what the FFRMS is and how the agency will
implement the revised part 9. These resources will include additional
examples to help applicants better understand the FFRMS as they apply
for FEMA programs. FEMA appreciates the

[[Page 56947]]

commenter's concern and has updated Figure 1 in the FFRMS policy to
clarify ``AC floodplain'' means ``annual chance floodplain.''
FEMA engaged stakeholders as part of the development and
publication of the Revised Guidelines, which contain most of the
definitions FEMA uses in this rulemaking. Stakeholders also provided
specific feedback on the definitions in Sec. 9.4 as part of this
rulemaking effort and FEMA addresses their concerns in this final rule.
2. 0.2PFA
Comment: A commenter expressed support for the definition of the
0.2 percent annual chance flood elevation (0.2PFA), agreeing with the
use of the terminology similar to annual exceedance probability for
defining flow, floodplains, and water surface elevation in the
floodplain.
FEMA Response: FEMA appreciates the commenter's consideration of
the definition.
3. Agency
Comment: One commenter requested clarification on how the term
``agency'' was defined under part 9.
FEMA Response: FEMA defines ``agency'' in Sec. 9.4 as ``the
Federal Emergency Management Agency (FEMA).'' FEMA is not changing the
definition of ``agency'' in this final rule.
4. Critical Action
Comments: Five commenters asked FEMA to further clarify the
definition of ``critical action,'' stating the definition was too vague
and left too much room for interpretation. Commenters asked for a list
of examples of critical actions to support the definition in Sec. 9.4
and/or sufficient information to distinguish between critical and non-
critical actions. One commenter asked FEMA to provide examples related
to the transportation sector and recommended roadways, bridges, and
culverts not be considered critical actions. One commenter requested a
process for local representatives to provide input on what constitutes
critical action/critical facilities.
FEMA Response: FEMA's definition of ``critical action'' is
consistent with Executive Order 11988, as amended, through the 1978
Guidelines and further clarified in the Revised Guidelines. FEMA notes
the term ``critical action'' is not new but was developed and
implemented initially with Executive Order 11988 in 1977. The Revised
Guidelines provide further details on what constitutes a critical
action. FEMA will leverage the information in the Revised Guidelines
when providing additional guidance to stakeholders. The determination
of whether an action to create or extend the useful life of a structure
or a facility is a critical action is generally made on a case-by-case
basis consistent with the information found in the Revised Guidelines.
Local representatives have input on whether a particular action is a
``critical action'' as part of the agency's 8-step process.
5. Federal Action
Comment: Two commenters sought clarification on the term ``Federal
action.'' Commenters sought clarification on what is a ``Federal
action'' subject to the FFRMS and stated confusion and inconsistency
could result among different Federal agencies and programs implementing
the FFRMS. One commenter asked for additional clarification on whether
specific FEMA programs were subject to the FFRMS. That commenter also
sought clarification on how the FFRMS would interact with other Federal
laws and regulations that govern floodplain management, such as the
NFIP, NEPA, and the Endangered Species Act (ESA).
FEMA Response: In this rulemaking, FEMA revises Sec. 9.4 to define
``action subject to the FFRMS'' as ``any action where FEMA funds are
used for new construction, substantial improvement, or to address
substantial damage to a structure or facility.'' As explained above,
the requirements of this rule apply to grants for projects funding the
new construction, substantial improvement, or repair of substantial
damage under FEMA programs such as IA, PA, and HMA programs, and grants
processed by FEMA's GPD.
Part 9 only applies to FEMA actions. Other Federal agencies will
implement FFRMS through their own regulations and/or policies. To
ensure consistency, all Federal agencies will utilize the Revised
Guidelines in their own FFRMS implementation. Per 44 CFR 9.11(d)(6), no
action may be taken if it is inconsistent with the NFIP or any more
restrictive Federal, State, or local floodplain management standards.
FEMA funding actions are also evaluated pursuant to the NEPA, ESA,
and other environmental and historic preservation requirements. The
Federal action will not be approved unless it meets all applicable
environmental and historic preservation requirements.
6. Floodplain
Comments: A commenter requested FEMA coordinate with the agency's
TMAC to ensure the new rule's definition of ``floodplain'' in Sec. 9.4
accounts for potential changes in the definition and mapping of
floodplains recommended by the TMAC. Another commenter asked how the
floodplain would be defined in the FFRMS and if the floodway would be
considered a regulatory floodplain. The commenter stated it was unclear
how the expanded horizontal FFRMS floodplain would impact future State
Department of Transportations' maintenance work in coordination with
the Federal Highway Administration (FHWA).
FEMA Response: FEMA appreciates the commenter's concerns. The
purpose of TMAC is to provide analysis under the NFIA. The requirements
of Executive Order 11988, as amended, are distinct from TMAC
recommendations and thus FEMA disagrees with the commenter that
coordination with TMAC is required to finalize this rule. As explained
above, the TMAC is a Federal advisory committee established to review
and make recommendations to FEMA on matters related to the national
flood mapping program authorized under the Biggert-Waters Flood
Insurance Reform Act of 2012.\127\ The national flood mapping program
requires FEMA to review, update, and maintain NFIP rate maps.\128\
While the framework FEMA uses in part 9 is distinct from mapping
recommendations for flood prone areas TMAC made in their recent annual
report, FEMA believes that the flexibility outlined in 44 CFR 9.7 and
the practice of using the best available information will allow the
application of part 9 to adjust to any change made in the mapping
process should FEMA adopt any of the TMAC recommendations.
---------------------------------------------------------------------------

\127\ 42 U.S.C. 4101a.
\128\ 42 U.S.C. 4101b.
---------------------------------------------------------------------------

As explained in the NPRM in 44 CFR 9.4, FEMA defines the ``Federal
Flood Risk Management Standard Floodplain'' as the floodplain
established using one of the approaches described in 44 CFR 9.7(c). The
floodway and the regulatory floodway are also defined in 44 CFR 9.4 and
are within the floodplain for purposes of part 9. The requirements of
this rule will apply to actions funding the new construction,
substantial improvement, or repair of substantial damage under FEMA
programs such as IA, PA, and HMA programs, and grants processed by
FEMA's GPD. Roads that are under the jurisdiction of another Federal
agency, such as those under the FHWA, are subject to that agency's
requirements as they generally are ineligible for funding under FEMA's
grant assistance programs.

[[Page 56948]]

7. Nature-Based Approaches
While some commenters expressed support for the definition of
``nature-based approaches'' in the rule, other commenters requested
specific revisions.
Comment: One commenter stated the definition of ``nature-based
approaches'' failed to take into account a design intent to protect or
restore natural processes; and did not include reference to hybrid
gray/green solutions that might be required for restoring habitat,
attenuating floods, and keeping communities safe. The commenter
suggested a definition closer to the ``nature-based solutions''
definition published on FEMA's website. The commenter requested FEMA
work with other Federal agencies to agree on common definitions for key
terminology. Further, the commenter recommended that FEMA remove
language stating that nature-based approaches ``generally, but not
always, must be maintained in order to reliably provide the intended
level of service,'' because maintenance requirements are highly
variable and are also generally necessary to maintain grey
infrastructure. The commenter stated that ``nature-based solutions
specifically aim to work with nature (as opposed to grey infrastructure
solutions that often are designed to control or work against nature
processes) and therefore can be less susceptible to catastrophic
failure or repeated maintenance and can require lower maintenance costs
overall.'' This commenter also requested FEMA include ``green
infrastructure'' when describing the definition. The commenter
recommended FEMA include a broader range of ecosystem-based activities
in the description of natural and nature-based actions, especially
those more appropriate for larger or more rural floodplains. The
commenter provided specific scenarios of nature-based approaches.
FEMA Response: FEMA appreciates the commenter's concerns and
believes the definition as written is appropriate. The definition is
consistent with the glossary definition in the Revised Guidelines. The
Revised Guidelines provide broad guidance in implementing Executive
Order 11988, as amended and ``offer a common point of reference so that
each agency can use or amend their procedures as appropriate.'' \129\
Consistency with the Revised Guidelines definition helps ensure more
consistent implementation of nature-based approaches across the Federal
government and meets the commenter's request for FEMA to utilize common
terminology with other Federal agencies. Changes such as those proposed
by the commenter would increase the potential for inconsistency and
stakeholder confusion working on projects involving multiple Federal
agencies.
---------------------------------------------------------------------------

\129\ Revised Guidelines at pg. 13.
---------------------------------------------------------------------------

FEMA notes that the Revised Guidelines state that nature-based
approaches can restore natural processes, and the agency does not
believe the definition excludes either protecting or restoring natural
processes. For purposes of part 9, nature-based solutions are specific
to floodplains and wetlands, and the commenter's references to nature-
based solutions on the agency's website reflects the full range of
natural hazards FEMA programs may mitigate. Regarding maintenance, FEMA
believes the language is appropriate in the definition as written. The
use of ``maintenance'' is to differentiate between nature-based
approaches and natural features. Nature-based approaches are designed
to mimic natural processes, but they are not wholly naturally
occurring. As such, they may require some form of maintenance to ensure
they are performing as intended. In comparison, natural features are
those characteristics of the environment that are naturally occurring
and exist in a dynamic equilibrium, so should require little to no
maintenance in serving their purpose. FEMA understands the commenter's
concern that ``green infrastructure'' is more expansive than stated in
the NPRM and plans to provide additional resources that will
incorporate examples to address some of the specific scenarios raised
by the commenter. FEMA notes the definition of ``nature-based
approaches'' states that nature-based approaches are sometimes referred
to as ``green infrastructure.''
Comments: Two other commenters requested edits to the definition of
``nature-based approaches'' to incorporate restoration and conservation
of natural systems. The commenters stated that such edits would ensure
all relevant nature-based approaches are adequately considered. Another
commenter recommended expanding the definition of ``nature-based
approaches'' by removing the reference to ``green infrastructure'' at
the beginning of the definition and incorporating the statement
``Nature-based approaches include green infrastructure practices, as
well as conservation approaches such as the restoration of wetland and
floodplain hydrology and other river processes'' into the definition
while also revising the language regarding maintenance to state such
approaches can be self-sustaining or need ongoing maintenance.
FEMA Response: While FEMA appreciates the commenters' concerns to
include restoration or conservation of naturally occurring systems and
processes and concerns related to green infrastructure, FEMA's
definitions are consistent with the glossary definition in the Revised
Guidelines and the changes proposed by the commenters could result in
inconsistencies including inconsistent implementation across other
Federal agencies. As explained above, the Revised Guidelines help
ensure key terminology is consistent across Federal agencies
implementing FFRMS. The Revised Guidelines state that nature-based
approaches can restore natural processes, and FEMA does not believe the
definition excludes restoring or conserving natural systems. FEMA will
provide additional resources with additional examples of nature-based
approaches including more information on green infrastructure to
address the commenters' concerns. FEMA will also coordinate with other
Federal agencies regarding the use of nature-based solutions as part of
the FFRMS implementation.
FEMA appreciates the commenter's suggestion to specifically
reference ``the restoration of wetland and floodplain hydrology and
other river processes'' in the definition of ``nature-based
approaches,'' but disagrees that such an edit is needed to the
definition to address the commenter's concerns.
FEMA's longstanding requirements in 44 CFR 9.11 outline the
agency's requirements to restore and preserve the natural and
beneficial values served by floodplains and wetlands. This requirement
to restore and preserve the values served by floodplains and wetlands,
see, e.g., 44 CFR 9.11(b)(3) & (e), applies to all actions located
within a floodplain or wetland or that affect a floodplain or wetland,
including actions that use nature-based approaches.
As explained above, the use of ``maintenance'' is to differentiate
between nature-based approaches and natural features and FEMA does not
believe the changes suggested by the commenter are appropriate. Nature-
based approaches are designed to mimic natural processes, but they are
not wholly naturally occurring. As such, they may require some form of
maintenance to ensure they are performing as intended. In comparison,
natural features are those characteristics of the environment that are
naturally occurring and exist in a dynamic

[[Page 56949]]

equilibrium, so should require little to no maintenance in serving
their purpose. FEMA understands the commenter's concern that ``green
infrastructure'' is more expansive than stated in the NPRM and plans to
provide additional resources that will incorporate examples to address
some of the specific scenarios raised by the commenter. FEMA notes the
definition of ``nature-based approaches'' states that nature-based
approaches are sometimes referred to as ``green infrastructure'' and
the proposed changes merely restate language already incorporated into
the definition.
Comment: One commenter restated concerns from a 2016 NPRM comment
that the current definition listed ``green roofs'' or ``downspout
disconnection'' as examples of nature-based approaches, and recommended
FEMA provide more applicable examples of nature-based approaches,
including ``property acquisitions and relocations;'' ``dam removal;''
``levee notching, setbacks, or removal;'' and ``stream crossing
upgrades.'' The commenter also recommended FEMA expand the definition
of nature-based approaches to encompass the restoration and
conservation of natural features, providing added emphasis on the use
of actions to bolster natural flood risk and water quality management
services.
FEMA Response: FEMA's definition of ``nature-based approaches'' in
the final rule, like the definition in the NPRM, does not contain
``green roofs'' or ``downspout disconnection.'' FEMA's definition is
consistent with the Revised Guidelines glossary definition and, as
explained above, the changes proposed by the commenter could result in
inconsistencies including inconsistent implementation across other
Federal agencies. While FEMA appreciates the commenters' concerns to
include restoration or conservation of naturally occurring systems and
processes and concerns related to green infrastructure, the Revised
Guidelines help ensure key terminology is consistent across Federal
agencies implementing FFRMS. Although the Revised Guidelines state that
nature-based approaches can restore natural processes, FEMA does not
believe the definition excludes either protecting or restoring natural
processes.
FEMA referred to green roofs and downspout disconnection in the
preamble to the NPRM as potential examples of green infrastructure, but
not as part of the proposed regulatory definition. See 88 FR at 67890.
As part of implementing this final rule, FEMA will provide additional
resources with additional examples to address the commenter's concerns
as explained above.
Comment: One commenter asked how FEMA defines natural systems and
ecosystem processes.
FEMA Response: FEMA defined ``nature-based approaches'' and
``natural features'' in proposed Sec. 9.4. FEMA believes those
definitions are sufficient and the terms the commenter used are
generally accepted terms found in Executive Order 11988, as amended,
that do not require additional definition in this final rule.
8. Natural and Beneficial Values of Floodplains and Wetlands and
Natural Features
FEMA received three comments on the definitions of ``natural and
beneficial values of floodplains and wetlands'' and ``natural
features.''
Comment: One commenter requested FEMA incorporate more explicit
references to biodiversity, ecosystem functioning, and natural values
into the regulation and requested ``habitat connectivity'' be added to
the definition of ``natural and beneficial values of floodplains and
wetlands'' as an example under ``Living Resource Values.''
FEMA Response: FEMA respectfully declines the commenter's request,
as the agency believes the concept habitat connectivity is adequately
addressed under Living Resource Values through the changes made in this
final rule. Specifically, the final rule describes Living Resource
Values as ``providing habitats and enhancing biodiversity for fish,
wildlife, and plant resources.'' This language adequately encompasses
habitat connectivity, and no edits are required to the final rule.
Comment: A commenter requested FEMA include ``functions'' in
addition to values when referring to protecting or restoring
floodplains and wetlands to read ``the beneficial functions and values
of floodplains and wetlands.''
FEMA Response: FEMA's definition of ``natural and beneficial values
of floodplains and wetlands'' incorporates functions and FEMA does not
believe additional edits are required.
Comment: One commenter supported the changes proposed to the
definitions of ``natural and beneficial values of floodplains and
wetlands,'' and ``wetlands'' and additional definitions for ``nature-
based approaches'' and ``natural features'' and requested FEMA develop
post-regulatory guidance on functional floodplains and wetlands and
nature-based solutions.
FEMA Response: FEMA agrees the changes to the definitions of
``natural and beneficial values of floodplains and wetlands'' and
``wetlands'' and the addition of definitions for ``nature-based
approaches'' and ``natural features'' are helpful features of the rule.
FEMA will distribute additional resources to SLTT partners and the
public identifying what the FFRMS is, and how the agency will further
implement the Executive Orders and part 9.
9. New Construction
Comment: One commenter recommended the definition of ``new
construction'' include ``allowed new construction'' associated with
systems that must be located in the floodplain for supplementing water
supply. The commenter requested the rule require consideration of
specific stormwater runoff requirements for construction that must be
completed in the floodplain and that FEMA recognize managed aquifer
recharge (MAR)-related activities might be subject to other State and/
or Federal regulation.
FEMA Response: The definition of ``new construction'' in part 9
must be broad in nature to support the various types of projects and
activities FEMA may perform or fund. FEMA specifically incorporated
examples in the definition of ``new construction'' to relate to typical
FEMA actions, but those examples are not exhaustive. Under the 8-step
decision-making process, FEMA identifies and evaluates practicable
alternatives. If there is no practicable alternative outside of the
floodplain, such as for functionally dependent uses,\130\ the action
may be carried out in the floodplain. The types of actions described by
the commenter (managed aquifer recharge floodwater storage retention,
spillways, injection wells and other built systems that must be located
in the floodplain for their intended purpose of supplementing water
supply), would be determined to be functionally dependent uses with
likely no alternative outside of the floodplain. FEMA believes no
changes are required to the regulation language, as those types of
actions would be allowable subject to the application of the FFRMS and
the minimization requirements outlined in 44 CFR 9.11. FEMA notes some
agency actions will also be subject to other Federal, State, Tribal,
territorial, and/or local requirements and FEMA addresses this issue in
the FFRMS policy.
---------------------------------------------------------------------------

\130\ Functionally dependent use means those actions which
cannot perform their intended function unless they are located in or
in close proximity to water. See 44 CFR 9.4.

---------------------------------------------------------------------------

[[Page 56950]]

10. Practicable
Comments: Two commenters were supportive of the definition of
``practicable.''
FEMA Response: FEMA agrees with the commenters that the updated
definition of ``practicable'' in Sec. 9.4 ensures nature-based
approaches are considered as practicable alternatives consistent with
Executive Order 11988, as amended.
Comment: One commenter stated the definition of ``practicable'' was
extremely vague and might not provide sufficient guidance to ensure
meaningful comparison of alternatives. Recognizing the agency's need
for a broad definition to account for differences in situations, the
commenter noted the definition did not provide much guidance to
determine what is truly ``practicable,'' as opposed to merely
expedient. The commenter requested FEMA require consideration of long-
term environmental, community, and economic benefits and costs of an
alternative, to ensure practicability determinations were not skewed
towards grey infrastructure or in-floodplain actions. The commenter
wrote those actions appeared cheaper or more convenient in the short-
term but carried greater long-term adverse effects, risks, and/or
costs.
FEMA Response: FEMA did not make significant changes to the
definition of ``practicable.'' The changes made in the NPRM and
finalized in this rule add an agency authorities factor to clarify the
agency's statutory and regulatory authorities may also limit FEMA's
actions. These changes also updated the factors for consistency with
the Revised Guidelines. FEMA does not believe additional changes are
required to the definition of ``practicable'' as the factors listed are
not all inclusive. The regulatory text in Sec. 9.9 also provides
examples and FEMA will provide additional examples in resources to
SLTTs and the public to further clarify as appropriate.
11. Restore
Comment: One comment requested the agency provide examples of what
``natural functions'' of the floodplain means and specifically include
``wildlife habitat and connectivity, carbon sequestration, and water
quality improvement.''
FEMA Response: FEMA's definition of ``restore'' in Sec. 9.4 does
not require the revisions requested. FEMA's definition of the ``natural
and beneficial values of floodplains and wetlands'' provides examples
of what natural functions of the floodplain mean and additional edits
are not required to address the commenter's concerns. Specifically, the
definition provides some examples but is not all inclusive. FEMA can
provide additional examples in resources to SLTTs and the public to
further clarify as appropriate.
12. Structures and Facilities
Comment: One commenter recommended linear transportation structures
not fall under the definition of ``structures.''
FEMA Response: FEMA defines both ``structures'' and ``facilities''
in Sec. 9.4 and the agency believes these definitions are sufficiently
clear. In the FFRMS policy, FEMA addresses both structures and
facilities and how the agency will apply FFRMS to each. See section G
of the FFRMS policy for more guidance on facilities. FEMA edited the
FFRMS Policy accompanying this final rule to further clarify that
section G.2 applies to ``facilities.'' Linear transportation structures
fall under the definition of ``facilities'' for purposes of this part.
13. Wetlands
While one commenter wrote in support of the revised definition of
``wetlands,'' three other commenters requested revision to the
definition.
Comment: One commenter stated the use of the United States Fish and
Wildlife Service (USFWS) 's wetlands definition was problematic,
stating in their experience, USFWS declined to engage on projects
unless the projects involved species protected by the Endangered
Species Act (ESA) and their habitat. The commenter noted water projects
and developments involve regulation by the U.S. Army Corps of Engineers
(USACE) more often than with USFWS, and recommended FEMA revise the
definition of ``wetlands'' to use the USACE's long-standing wetland
definition.
FEMA Response: FEMA appreciates the commenter's suggestion and
declines to change the definition as the agency believes the reference
to USFWS is more appropriate than to USACE's definition. FEMA's
definition is consistent with the definition of ``wetlands'' in
Executive Order 11990 and the agency is implementing that Executive
Order with this regulation. FEMA believes changes to this definition
may result in conflating the implementation of Executive Order 11990
with the Clean Water Act. While the commenter is correct that the USACE
definition focuses on flood attenuation or mitigation, FEMA's part 9
implementation goes beyond those considerations for wetlands. FEMA also
notes the agency performs Section 7 consultation with USFWS under ESA
for actions that affect protected species or critical habitat.
Comment: One commenter recommended FEMA retain the reference to the
specific publication provided in the definition of ``wetlands.'' The
commenter stated the publication provided extensive examples and
further clarification of what should be considered wetlands and was
still used in the definition by the USFWS. The commenter requested the
definition be updated to the correct year of publication in the final
rule.
FEMA Response: FEMA's definition is consistent with the definition
of ``wetlands'' in Executive Order 11990, and the agency is
implementing that Executive Order with this regulation. FEMA believes
deleting the reference to a specific publication in the regulations
will not result in a less specific definition as the commenter states.
Eliminating references to specific publications helps reduce the
potential for the regulations to be outdated if the publication is
updated or replaced. As the commenter pointed out, the current
regulatory text does not reference the correct year of the publication
and the final rule will eliminate confusion around this point. FEMA
still anticipates remaining consistent with the USFWS definition for
purposes of part 9.
Comment: One commenter recommended the final rule specify whether
artificially induced and/or isolated wetlands were included and add
clearer agency expectations for subsections under the agency's FFRMS
policy, particularly those involving wetlands.
FEMA Response: FEMA has not changed how the 8-step process applies
to wetlands and does not intend to as part of FFRMS implementation in
this rulemaking. FEMA's definition is consistent with the definition of
``wetlands'' in Executive Order 11990 and the agency is implementing
that Executive Order with this regulation. FEMA believes the commenter
is conflating the implementation of Executive Order 11990 with the
Clean Water Act and FEMA's part 9 implementation goes beyond those
considerations for wetlands.
14. Additional Definitions Requested
In addition to the new and revised definitions provided in the
NPRM, commenters requested FEMA add definitions to the final rule.
Comment: One commenter stated the need for clearer definitions was
paramount to avoiding ambiguity and ensuring a shared understanding of
key

[[Page 56951]]

terms. The commenter referenced the Climate-Informed Science Approach
(CISA) as a term lacking a definition in the rule as an example of the
need for more clarity.
FEMA Response: FEMA appreciates the commenter's concerns but
changes to the final rule are not required to resolve those concerns.
FEMA's explanation of the Climate-Informed Science Approach is
consistent with Executive Order 11988, as amended, and the Revised
Guidelines. Rather than providing specific definitions in regulatory
text, FEMA describes each approach in Sec. 9.7(c) and in the FFRMS
policy. FEMA believes these explanations are sufficiently clear and,
because they are consistent with the Executive Order and Revised
Guidelines, will not result in ambiguity.
Comment: One commenter recommended adding a definition of
``development'' for consistency with the NFIP at 44 CFR part 59. The
commenter also recommended adding a definition of ``non-critical
actions'' to help define structures and facilities that clearly do not
fall under the critical action standard and reduce misunderstandings.
FEMA Response: FEMA defines ``support of floodplain and wetland
development'' in Sec. 9.4 and a definition of ``development'' is
incorporated into that definition. In the FFRMS policy, FEMA clarifies
what constitutes a non-critical action as any activity that does not
meet the definition of critical action. FEMA does not believe a
specific definition in the regulatory text is necessary given the
definition of ``critical action'' already provided in Sec. 9.4.

F. FFRMS Applicability

Commenters requested clarification on the applicability of FFRMS
generally as well as to specific types of actions.
1. Generally
Comments: Two commenters sought clarification on the Federal
actions that are subject to FFRMS. Both commenters stated that the term
``action subject to the FFRMS'' could cause misinterpretation or
confusion among different Federal agencies implementing the FFRMS.
Another commenter asked whether the regulation and FFRMS policy would
affect only new construction funded by FEMA. The commenter recommended
a clarification to help States understand where FEMA's regulations
implementing the FFRMS apply and whether FFRMS applied to State DOT
projects funded through FHWA. The commenter also recommended FEMA
clarify how the FFRMS applied to FEMA-funded, non-FEMA but still
Federally-funded, and State-funded activities.
FEMA Response: FEMA defines ``action subject to the FFRMS'' as
``any action where FEMA funds are used for new construction,
substantial improvement, or to address substantial damage to a
structure or facility,'' consistent with Executive Order 11988, as
amended, and the Revised Guidelines. FEMA believes this definition is
sufficiently clear. As explained in the preamble to the NPRM, 44 CFR
part 9 applies to FEMA actions. As explained above, the requirements of
this rule apply to grants funding the new construction, substantial
improvement, or repair of substantial damage under FEMA programs such
as IA, PA, and HMA programs, and grants processed by FEMA's GPD
(involving grants for preparedness activities). All Federal agencies
will utilize the Revised Guidelines for their own FFRMS implementation.
Roads that are under the jurisdiction of another Federal agency, such
as those under the FHWA, are subject to that agency's requirements as
they generally are ineligible for funding under FEMA's grant assistance
programs.
As explained in Sec. 9.5(a)(3), FEMA will apply FFRMS only 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. Ongoing projects will not
be impacted by this final rule.\131\
---------------------------------------------------------------------------

\131\ Note that 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. 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 Jan. 24, 2024) 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 Jan. 24, 2024). Some current FEMA
actions may be subject to these partial implementation policies;
however, those actions would not be subject to this final rule or
policy.
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Comment: A commenter requested FEMA clearly define how Federally
funded expansions, renovations, rebuild, rehabilitations and similar
activities would be impacted by the FFRMS. The commenter noted many
infrastructure projects are not static structures, but rather
periodically require rehabilitation, renovation, and/or expansion and
thus would include a combination of rehabilitation of existing
construction, modification of existing infrastructure, and entirely new
infrastructure elements that would be combined during a project to
create the ``new'' final structure and/or system. The commenter stated
that FFRMS seemed to apply only to new structures that can be sited or
elevated without moving or damaging existing construction and requested
confirmation of that understanding. Another commenter commended FEMA's
proposed policy provisions for identifying actions that might be
subject to determinations of substantial damage or substantial
improvement.
FEMA Response: Part 9 does not apply only to new structures, and
FEMA believes the rule and FFRMS policy are sufficiently clear on this
point. As stated above, FEMA defines ``action subject to the FFRMS'' as
``any action where FEMA funds are used for new construction,
substantial improvement, or to address substantial damage to a
structure or facility,'' consistent with Executive Order 11988, as
amended, and the Revised Guidelines.
In Sec. 9.4, FEMA defines ``new construction'' in this final rule
as ``the construction of a new structure or facility or the replacement
of a structure or facility which has been totally destroyed. New
construction includes permanent installation of temporary housing units
because even though such housing may initially have been planned to be
temporary, when it is permanently installed, it becomes a permanent
housing solution for survivors. New construction in wetlands includes
draining, dredging, channelizing, filling, diking, impounding, and
related activities.'' Also in Sec. 9.4, FEMA further defines
``substantial improvement'' as any repair, reconstruction or other
improvement of a structure or facility, which has been damaged in
excess of, or the cost of which equals or exceeds, 50 percent of the
pre-disaster market value of the structure or replacement cost of the
facility (including all ``public facilities'' as defined in the
Stafford Act) (1) before the repair or improvement is started, or (2)
if the structure or facility has been damaged and is proposed to be
restored. Substantial improvement includes work to address substantial
damage to a structure or facility. As it related to the commenter's
stated concern, if a facility is an essential link in a larger system,
the percentage of damage will be based on the cost of repairing the
damaged facility relative to

[[Page 56952]]

the replacement cost of the portion of the system which is
operationally dependent on the facility. The term ``substantial
improvement'' does not include any alteration of a structure or
facility listed on the National Register of Historic Places or a State
Inventory of Historic Places. Where an action falls under one of the
definitions above, it would be considered an action subject to FFRMS.
The revisions to part 9 do not change FEMA's long-standing
requirement as part of implementing Executive Order 11988, as amended,
to only perform or fund actions within or affecting floodplains if
those actions are the only practicable alternative. Through the 8-step
process, FEMA considers alternative locations, alternative actions,
nature-based solutions, and the no action alternative under the
practicability analysis. If there is no practicable alternative, FEMA
will perform or fund the action and will minimize any adverse impacts
when doing so.
2. FEMA Specific Programs
Commenters also commented on the applicability of FFRMS to specific
FEMA programs.
Comments: Some commenters stated support for FEMA's policy
regarding FFRMS applicability to temporary and permanent housing. One
commenter requested FEMA give careful consideration to potentially
unintended consequences of greatly expanded requirements for victims of
a catastrophic disaster in need of emergency federal disaster
assistance. The commenter cited a study related to the impacts of
Hurricane Ian and discussed how the flood extent in many areas was
approximated by the Special Flood Hazard Area (SFHA) boundaries, noting
without constraints in development in the SFHA, flood damages for the
area studied would have skyrocketed. Another commenter expressed
concern that the proposed rule could increase local costs and delay
affordable housing projects. The commenter requested FEMA consider ways
to advance affordable housing projects, such as through expansion of
its ``Housing Mitigation Assistance'' grants and requested the agency
make accommodations for such projects to support a more expeditious
regulatory process.
FEMA Response: FEMA appreciates the commenter's interest in the
agency's Individuals and Households Program. FEMA's revisions in Sec.
9.13 reflect the agency's consideration of the need for disaster
survivors to quickly recover, while also addressing the need for more
resilient housing. FEMA notes this rulemaking will not expand the SFHA
for NFIP purposes nor does it apply to a local community's permitting
processes under the NFIP's floodplain management regulations. Those
regulations are found at 44 CFR part 59 et seq. FEMA notes the agency
does not have ``Housing Mitigation Assistance'' grants, but where FEMA
provides funding for housing, the agency will consider social concerns
and economic aspects as part of the practicability analysis in the 8-
step process.
Comments: Multiple commenters referenced the NFIP and FFRMS
applicability. One commenter stated that FEMA only applies the 8-step
process programmatically to the NFIP as a whole. The commenter further
noted the FFRMS would only apply to new construction or substantial
improvement to existing structures or facilities that receive FEMA
funding. The commenter stated support for exempting all privately
funded activities from the FFRMS as those activities were beyond the
scope of FEMA's authority and would create challenges in determining
the geographic scope of the FFRMS defined floodplain and increased
construction costs that would negatively impact housing affordability.
Another commenter wrote asking if the FFRMS policy would impact
where new flood insurance policies could be issued. The commenter
recommended FEMA consider coordinating with other Federal agencies and
expanding the Coastal Barrier Resources Act (CBRA) and/or identifying
additional areas where new flood insurance policies could not be issued
based on FFRMS approaches.
A third commenter wrote the work needed to restore floodplain
connectivity should have a streamlined regulatory process and
additional financial and technical support to meet regulatory burdens.
The commenter stated a fundamental tenet of the NFIP was to discourage
increases in base flood elevation from ``traditional development,''
whereas floodplain restoration projects are intended to increase the
base flood elevation in areas where it is safe and socially acceptable
to do so. The commenter stated floodplain restoration work was urgently
needed in many flood-prone areas, but the NFIP requirements hindered
federal investments in floodplain restoration work. The commenter
stated that regulatory reforms are needed to ensure Federal restoration
dollars could be leveraged to help reduce flood risks and damages.
FEMA Response: FEMA agrees with the commenter that privately funded
activities are not subject to this rule. This rulemaking is not
regulating privately funded action; instead, this rulemaking applies to
actions subject to the FFRMS, i.e., Federally funded projects for new
construction, substantial improvement, and repairs to address
substantial damage. For the purposes of regulating private activities,
the NFIP's floodplain management standards will continue to generally
apply in NFIP participating communities.\132\ The commenter is also
correct that FEMA applies part 9 programmatically to the NFIP.\133\
Notwithstanding the programmatic application of part 9 to the NFIP, the
expanded floodplain established under this rule has no impact on where
new flood insurance policies may be issued (including community
eligibility for the NFIP participation and individual premiums) because
the expanded floodplain only applies to actions subject to the FFRMS.
---------------------------------------------------------------------------

\132\ The NFIP's floodplain management standards are generally
found at 44 CFR 60.3. There are variances and exceptions from the
standards written into 60.3. Additionally, some communities have
higher standards above the NFIP's floodplain management minimum
requirements.
\133\ A comprehensive 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).
---------------------------------------------------------------------------

In short, part 9 does not apply to the issuance of flood insurance
policies. This rule and accompanying policy will have no effect on
where new flood insurance policies may be issued. FEMA notes that only
Congress can expand CBRA, and USFWS has primary authority for the
implementation of CBRA. While FEMA appreciates the commenter's concerns
regarding floodplain restoration, regulatory reforms to the NFIP
suggested by the commenter are beyond the scope of this rulemaking.
3. Facilities
Four commenters had questions regarding the applicability of the
final rule and FFRMS policy to facilities.
Comment: A commenter recommended FEMA clarify special
considerations for infrastructure projects by providing more
information and guidance on how to implement FFRMS for ``facilities.''
The commenter stated essential facilities like roadways, bridges, and
utilities might be vulnerable to flood damage and required even more
attention, but the rule was largely silent as to how FFRMS applied to
these projects.
The same commenter wrote of their experience with agencies
struggling to adequately assess relevant flood risks when evaluating
vital facilities and

[[Page 56953]]

recommended incorporating language into Steps 1 and 5 of the 8-step
process, clarifying appropriate considerations and methods to apply the
FFRMS to facilities. The commenter requested FEMA set forth factors to
consider when defining the FFRMS floodplain for facilities (such as
considering a larger project area and vulnerability of nearby assets
that could be affected) to encourage better, more informed decisions.
The commenter also recommended FEMA revise Sec. 9.11 to clarify that
although elevation is not universally required for facilities,
mitigation measures for facilities subject to the FFRMS must be
designed to be resilient to the FFRMS flood elevation.
Another commenter encouraged FEMA to provide more information and
guidance in the final rule on implementing the FFRMS for facilities.
The commenter stated that most facilities would likely require
different implementation considerations and standards than those
defined in the rule for structures. The commenter stated that elevation
may not be an appropriate means to improve or achieve resilience for
facilities and requested that the final rule and related guidance
provide variables to consider, which could help define appropriate
resilience measures in addition to or in place of elevation.
FEMA Response: FEMA appreciates the commenter's references to
challenges with assessing relevant flood risks for vital facilities and
infrastructure. As the commenter notes, several factors must be
considered when implementing the FFRMS for facilities. FEMA believes
that the agency's 8-step process and implementing policy account for
the specific concerns raised in the examples provided. The agency's
policy reflects a preference for using the CISA that considers sea
level rise and FEMA's practicability analysis incorporates social
concerns and economic aspects into the 8-step process. FEMA's revisions
to part 9 reflect consideration of the type and criticality of the
action involved, the availability and actionability of the data, and
equity concerns in the implementation of Executive Order 11988, as
amended. FEMA also has an agency-wide initiative focused on reducing
barriers and increasing opportunities so that all people, including
those from vulnerable and underserved communities, can get help when
they need it.\134\Additionally, FEMA reviews all proposed FEMA-funded
actions for potential disproportionate and adverse human health and
environmental effects on communities with environmental justice
concerns using a standardized environmental justice compliance review
process.
---------------------------------------------------------------------------

\134\ See <a href="https://www.fema.gov/emergency-managers/national-preparedness/equity">https://www.fema.gov/emergency-managers/national-preparedness/equity</a> (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------

For the reasons described below, FEMA's current proposed FFRMS
policy uses the FFRMS flood elevation and corresponding floodplain to
establish the minimum level to which a structure or facility must be
resilient. For facility projects that are subject to the FFRMS, the
FFRMS flood elevation represents the magnitude of flooding that must be
considered in incorporating flood resilient design features into
project designs. This approach allows the FFRMS to be integrated as one
element of project-specific comprehensive design methods and leaves
open the possibility of more prescriptive design requirements as
infrastructure design methods improve, better incorporating
consideration of continually changing hazard conditions.
Due to the vast diversity of facilities, the highly project-
specific nature of facilities projects, and numerous options for making
them resilient, infrastructure standards (in terms of narrowly scoped
specifications) to reduce risk from climate change and future
conditions currently do not exist on a national level. This lack of
established standards, and the long timeline necessary to develop them,
requires consideration of less prescriptive approaches. In the absence
of such standards, Federal agencies that oversee construction of
infrastructure projects such as the FHWA and USACE apply project-
specific risk assessment and adaptive management approaches, which
generally require data collection, detailed studies, benefit-cost
analyses, and consideration of various alternatives, adaptation, and
mitigation measures.\135\
---------------------------------------------------------------------------

\135\ See, e.g., Federal Highway Administration Hydraulic
Engineering Circular No. 17, 2nd Ed: Highways in the River
Environment--Floodplains, Extreme Events, Risk, and Resilience 2016,
available at <a href="https://www.fhwa.dot.gov/engineering/hydraulics/library_arc.cfm?pub_number=2&id=162">https://www.fhwa.dot.gov/engineering/hydraulics/library_arc.cfm?pub_number=2&id=162</a> (last accessed Jan. 24, 2024),
Federal Highway Administration Hydraulic Engineering Circular No.
25, 2nd Ed: Highways in the Coastal Environment October 2014,
available at <a href="https://www.fhwa.dot.gov/engineering/hydraulics/pubs/nhi14006/nhi14006.pdf">https://www.fhwa.dot.gov/engineering/hydraulics/pubs/nhi14006/nhi14006.pdf</a> (last accessed March 28, 2024), US Army Corps
of Engineers Engineering and Construction Bulletin 2018-14: Guidance
for Incorporating Climate Change Impacts to Inland Hydrology in
Civil Works Studies, Designs, and Projects, available at <a href="https://wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2018-14">https://wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2018-14</a> (last accessed Jan. 24, 2024), and US Army Corps of
Engineers Engineer Regulation No. 1100-2-8162: Incorporating Sea
Level Change in Civil Works Programs, June 2019, available at
<a href="https://www.publications.usace.army.mil/USACE-Publications/Engineer-Regulations/udt_43546_param_orderby/Pub_x0020_Number/udt_43546_param_direction/descending/?udt_43546_param_page=3">https://www.publications.usace.army.mil/USACE-Publications/Engineer-Regulations/udt_43546_param_orderby/Pub_x0020_Number/udt_43546_param_direction/descending/?udt_43546_param_page=3</a> (last
accessed Jan. 24, 2024).
---------------------------------------------------------------------------

FEMA already incorporates many of these approaches into its grant
requirements. FEMA Recovery Interim Policy 104-009-11 Version 2.0,
``Consensus-Based Codes, Specifications and Standards for Public
Assistance'' (December 20, 2019) requires ``application of the latest
nationwide consensus-based codes, specifications and standards that
incorporate hazard resistance for PA funded projects,'' including
buildings, electric power, roads, bridges, potable water, and
wastewater.\136\ Appendix A of the policy includes an extensive list of
risk assessment and adaptive management methods which applicants are
required to use ``as the minimum design criteria for eligible
projects.'' Eligibility for Hazard Mitigation Assistance funding
requires SLTT partners to have up-to-date hazard mitigation plans,
which incorporate community-wide risk assessment and adaptive
management approaches applicable to facilities or linear
infrastructure.
---------------------------------------------------------------------------

\136\ <a href="https://www.fema.gov/sites/default/files/2020-05/DRRA1235b_Consensus_BasedCodes_Specifications_and_Standards_for_Public_Assistance122019.pdf">https://www.fema.gov/sites/default/files/2020-05/DRRA1235b_Consensus_BasedCodes_Specifications_and_Standards_for_Public_Assistance122019.pdf</a> (last accessed Apr. 2, 2024).
---------------------------------------------------------------------------

Further, FEMA does not believe changes to the final rule are
required as the regulation applies the 8-step process to any action, as
defined in 44 CFR 9.4, which includes facilities. In the 8-step
process, FEMA considers not just whether proposed actions would be in a
floodplain or wetland, but also whether the proposed action would
affect a floodplain or wetland. FEMA has routinely applied Steps 1 and
5 to facilities. FEMA also applies Step 4, which identifies impacts of
a proposed action at and beyond the proposed action location. FEMA will
distribute additional resources for the public and SLTT partners to
help identify what the FFRMS is, and how the agency will implement the
Executive Orders. These resources will help applicants better
understand the FFRMS as they apply for FEMA programs.
Section G.2. of FEMA's FFRMS policy discusses flood risk
minimization for facilities. FEMA's FFRMS policy uses the FFRMS flood
elevation and corresponding floodplain to establish the minimum level
to which a structure or facility must be resilient. For facilities
projects that are subject to the FFRMS, the FFRMS flood elevation
represents the magnitude of flooding that must be considered in
incorporating flood resilient design features into facility project
designs.

[[Page 56954]]

This approach allows the FFRMS to be integrated as one element of
project-specific comprehensive design methods, and leaves open the
possibility of more prescriptive design requirements as infrastructure
design methods improve, better incorporating consideration of
continually changing hazard conditions.
FEMA further believes that revising the text of Sec. 9.11 to
clarify that mitigation measures for facilities subject to FFRMS must
be designed to be resilient to the FFRMS flood elevation, as the
commenter requested, is not necessary. As the commenter noted, this
point is made in the FFRMS policy, and FEMA does not believe changes to
the regulatory text are required to achieve the FFRMS resilience.
Comment: One commenter raised several questions regarding FFRMS
implementation and facilities. The commenter stated that building
transportation infrastructure to survive extreme events is a good
investment, but the FFRMS is overly conservative and based on risk of
low probability. The commenter asked about the applicability of part 9
and the FFRMS to a range of potential actions from linear
transportation structures to roadways, bridges, and culverts and raised
concerns with how FFRMS application to these types of actions might
raise conflicts with other Federal, State, or local agencies. The
commenter also stated concerns about elevating facilities and provided
an example of where the FFRMS would elevate a bridge to a height
greater than the flood-prone height of the connecting roads. The
commenter recommended FEMA clarify roadways and associated bridges and
culverts were not required to perform an alternatives analysis for
their location in a floodplain.
FEMA Response: FEMA appreciates the commenter's concerns regarding
the applicability of FFRMS and part 9 to specific infrastructure
projects. FEMA defines both ``structures'' and ``facilities'' in Sec.
9.4 and the agency believes these definitions are sufficiently clear to
explain FFRMS and part 9 applicability to specific actions. Executive
Order, 11988, as amended, requires both structures and facilities be
resilient against current and future flood hazards. FEMA believes that,
as described by the commenter, roadways, bridges, culverts, and linear
transportation structures would fall under the definition of
``facilities'' for this part and thus would not necessarily be exempt
from part 9.
As explained above, FEMA defines ``action subject to the FFRMS'' as
``any action where FEMA funds are used for new construction,
substantial improvement, or to address substantial damage to a
structure or facility.'' The FFRMS applies to grants for projects
funding the new construction, substantial improvement, or repair of
substantial damage under FEMA programs such as IA, PA, and HMA
programs, and grants processed by FEMA's GPD. FEMA does not fund
repairs or improvements to Federal-aid roads, and this rulemaking would
not be applicable to those roads. Rather, the FHWA regulations would
govern those actions. Where FEMA may provide funding, FEMA's FFRMS
policy provides details on how FEMA will coordinate with other agencies
when implementing actions in the same area as another Federal agency.
See FFRMS policy Section H, page 9. When coordinating with other
Federal agencies, FEMA generally defaults to the FFRMS policy approach
in FEMA's FFRMS policy, as appropriate. Where FEMA provides funding for
these activities, FFRMS applies to improve resilience to facilities
against both current and future flood risks.
In the FFRMS policy, FEMA addresses both structures and facilities
and how the agency will apply FFRMS to each. See section G of the FFRMS
policy for more guidance on facilities. Note FEMA edited the FFRMS
policy accompanying this final rule to further clarify that section G.2
applies to ``facilities,'' by using the term ``Facilities'' instead of
the term ``Non-Structure Facilities.''
Further, Sec. 9.11(d)(6) states when FEMA is providing funding, a
more restrictive Federal, State, or local floodplain management
standard will be applied. Section G.2 of FEMA's FFRMS policy further
discusses flood risk minimization for facilities and clarifies that
FEMA would also allow methods other than elevation to be used to
improve resilience against flooding up to the flood elevation of the
FFRMS floodplain in conjunction with any other applicable codes and
standards.\137\
---------------------------------------------------------------------------

\137\ See FFRMS Policy, pg. 8, ``Particularly in cases where
elevation may not be feasible or appropriate for non-structure
facilities, the FFRMS floodplain, determined according to the
process described in section C of this policy, establishes the level
to which a structure or facility must be resilient. Resilience
measures include using structural or nonstructural 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.''
---------------------------------------------------------------------------

FEMA's FFRMS policy uses the FFRMS flood elevation and
corresponding floodplain to establish the minimum level to which a
structure or facility must be resilient. The minimization requirements
are similar to how FEMA currently implements part 9 for the 1 percent
and 0.2 percent annual chance floods. For facility projects that are
subject to the FFRMS, the FFRMS flood elevation represents the
magnitude of flooding that must be considered in incorporating flood
resilient design features into facility project designs. This approach
allows the FFRMS to be integrated as one element of project-specific
comprehensive design methods and leaves open the possibility of more
prescriptive design requirements as infrastructure design methods
improve, better incorporating consideration of continually changing
hazard conditions. Further, as explained above, FEMA already
incorporates FHWA Hydraulic Engineering Circulars 17 and 25 (Highways
in the River Environment and Highways in the Coastal Environment) into
its Public Assistance grant requirements.
To address the commenter's concerns regarding overly conservative
methods, FEMA notes the FFRMS is a flexible framework to define the
floodplain that allows agencies to choose among several approaches to
expand the base floodplain to a higher vertical elevation and
corresponding horizontal extent for all Federally funded projects.
FEMA's FFRMS policy is not a one-size-fits-all approach. Rather, FEMA's
policy approach is flexible to address criticality of the action being
taken, data availability based on the location of the action, and
equity concerns.
Finally, the final rule does not change many of the current
requirements for proposed actions. Proposed actions involving roadways,
bridges, and culverts located in or impacting floodplains and wetlands
continue to be subject to alternatives analysis under Executive Order
11988, as amended, and part 9. For certain small-scale actions under
FEMA's PA program, the proposed rule increases the dollar value
thresholds for projects that are exempt from the 8-step process or that
are subject to an abbreviated 8-step review.
Comment: The same commenter stated that enhancing resilience should
be the responsibility of the States to enable community-specific
strategies. The commenter requested clarification on whether States and
localities could use Federal funds for resilience measures, such as
raising or widening roadways and bridges to meet the increased vertical
elevation and expanded horizontal floodplain while still qualifying for
FEMA funding. The commenter further stated the FFRMS would remove risk
to structures from risk-based design criteria some States had in place
and would require a one-size-fits-all approach for bridge-sized

[[Page 56955]]

structures. The commenter also noted some non-Federal partners might
not allow States to select the FFRMS approach. The same commenter
stated th

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