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

Federal RegisterOct 2, 2023

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 9

[Docket ID: FEMA-2023-0026]

RIN 1660-AB12

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

AGENCY:

Federal Emergency Management Agency, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Federal Emergency Management Agency (FEMA) proposes to amend its regulations to implement the Federal Flood Risk Management Standard (FFRMS) and update the agency's 8-step decision-making process floodplain reviews. FEMA also proposes a supplementary policy that would further clarify how FEMA would apply the FFRMS. The proposed rule would change how FEMA defines a floodplain with respect to certain actions, and FEMA would use natural systems, ecosystem process, and nature-based approaches, where possible, when developing alternatives to locating the proposed action in the floodplain.

DATES:

Comments must be received no later than December 1, 2023.

ADDRESSES:

You may submit comments, identified by Docket ID: FEMA-2023-0026, via the Federal eRulemaking Portal:

http://www.regulations.gov.

Follow the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT:

Portia Ross, Policy and Integration Division Director, Office of Environmental Planning and Historic Preservation, Resilience, DHS/FEMA, 400 C Street SW, Suite 313, Washington, DC 20472-3020. Phone: (202) 709-0677; Email:

fema-regulations@fema.dhs.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

III. Factual and Legal Background

A. Executive Order 11988, “Floodplain Management”

B. Statutory Authority To Require the FFRMS Under FEMA Grant Programs

C. 44 CFR Part 9, “Floodplain Management and Protection of Wetlands”

D. Reevaluation of the 1 Percent Chance or 100-Year Flood Standard

E. Executive Order 13690, the Federal Flood Risk Management Standard (FFRMS) and Subsequent Amendments to Executive Order 11988, and Revisions to the 1978 Guidelines

F. Substantive Components of the FFRMS

G. FEMA's Implementation of the FFRMS and the Revised Guidelines

IV. Discussion of the Proposed Rule

A. Authority Citation

B. Section 9.1—Purpose of Part

C. Section 9.2—Policy

D. Section 9.3—Severability

E. Section 9.4—Definitions

F. Section 9.5—Scope

G. Section 9.6—Decision-Making Process

H. Section 9.7—Determination of Proposed Action's Location

I. Section 9.8—Public Notice Requirements

J. Section 9.9—Analysis and Reevaluation of Practicable Alternatives

K. Section 9.10—Identify Impacts of Proposed Actions

L. Section 9.11—Mitigation

M. Section 9.12—Final Public Notice

N. Section 9.13—Particular Types of Temporary Housing

O. Section 9.14—Disposal of Agency Property

P. Section 9.16—Guidance for Applicants

Q. Section 9.17—Instructions to Applicants

R. Section 9.18—Responsibilities

V. Comments Received Associated With Part 9 Revisions

VI. Regulatory Analyses

A. Executive Order 12866, Regulatory Planning and Review & Executive Order 13563, Improving Regulation and Regulatory Review

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act

D. National Environmental Policy Act (NEPA) of 1969

E. Paperwork Reduction Act (PRA) of 1995

F. Privacy Act

G. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

H. Executive Order 13132, Federalism

I. Executive Order 12898, Environmental Justice

J. Executive Order 12630, Taking of Private Property

K. Executive Order 12988, Civil Justice Reform

L. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

M. Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, OMB Circular A-119

Table of Abbreviations

0.2PFA—0.2 Percent Annual Chance Flood Approach

ABA—Architectural Barriers Act

ADA—Americans with Disabilities Act

CEQ—Council on Environmental Quality

CFR—Code of Federal Regulations

CISA—Climate-Informed Science Approach

CRS—Community Rating System

EA—Environmental Assessment

EIS—Environmental Impact Statement

E.O.—Executive Order

FBFM—Flood Boundary Floodway Map

FEMA—Federal Emergency Management Agency

FFRMS—Federal Flood Risk Management Standard

FHBM—Flood Hazard Boundary Map

FIRM—Flood Insurance Rate Map

FIS—Flood Insurance Study

FMA—Flood Mitigation Assistance

FVA—Freeboard Value Approach

GPD—Grant Programs Directorate

HMA—Hazard Mitigation Assistance

HUD—Department of Housing and Urban Development

IA—Individual Assistance

IRFA—Initial Regulatory Flexibility Analysis

NEPA—National Environmental Policy Act of 1969

NFIA—National Flood Insurance Act, as amended

NFIP—National Flood Insurance Program

NOAA—National Oceanic and Atmospheric Administration

NPRM—Notice of Proposed Rulemaking

OMB—Office of Management and Budget

PA—Public Assistance

PDM—Pre-Disaster Mitigation

PHC—Permanent Housing Construction

PIA—Privacy Impact Assessment

PRA—Paperwork Reduction Act of 1995

PV—Present Value

RCP--Representative Concentration Pathway

RFA—Regulatory Flexibility Act

RIA—Regulatory Impact Analysis

SBREFA—Small Business Regulatory Enforcement Fairness Act of 1996

SFHA--Special Flood Hazard Area

SLR--Sea Level Rise

SORN—System of Records Notice

Stafford Act—Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended

THU—Temporary Housing Unit

USGS—United States Geological Survey

WRC—Water Resources Council

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting comments and related materials. We will consider all comments and material received during the comment period.

If you submit a comment, include the Docket ID FEMA-2023-0026, indicate the specific section of this document to which each comment applies, and give the reason for each comment. All submissions may be posted, without change, to the Federal e-Rulemaking Portal at

http://www.regulations.gov,

and will include any personal information you provide. Therefore, submitting this information makes it public. For more about privacy and the docket, visit

https://www.regulations.gov/document?D=DHS-2018-0029-0001.

Viewing comments and documents: For access to the docket to read background documents or comments received, go to the Federal e-Rulemaking Portal at

http://www.regulations.gov.

II. Executive Summary

On January 30, 2015, the President issued Executive Order 13690, “Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input.”

Executive Order 13690 amended Executive Order 11988 and established the FFRMS. The FFRMS is a flood resilience standard that is required for “Federally funded projects” and provides a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands.

80 FR 6425, Feb. 4, 2015.

On August 22, 2016, FEMA published a Notice of Proposed Rulemaking (NPRM) entitled “Updates to Floodplain Management and Protection of Wetlands Regulations to Implement Executive Order 13690 and the Federal Flood Risk Management Standard” in the

Federal Register

(81 FR 57402). This NPRM would have revised FEMA's regulations on “Floodplain Management and Protection of Wetlands” to implement Executive Order 13690. FEMA also proposed a supplementary policy entitled “FEMA Policy: Guidance for Implementing the Federal Flood Risk Management Standard (FFRMS)” (FEMA Policy 078-3), which would have further clarified how FEMA would apply the FFRMS. The notice of availability and request for comments for the supplementary policy also published in the August 22, 2016

Federal Register

at 81 FR 56558. On September 20, 2016, FEMA published a notice of data availability regarding a draft report, the

2016 Evaluation of the Benefits of Freeboard for Public and Nonresidential Buildings in Coastal Areas,

which had been added to the docket for the proposed rule (81 FR 64403).

On August 15, 2017, the President issued Executive Order 13807 (“Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects”) which revoked Executive Order 13690.

See

82 FR 40463, Aug. 24, 2017. Accordingly, in light of the revocation of Executive Order 13690, FEMA withdrew the August 22, 2016 NPRM and supplementary policy (83 FR 9473). On May 20, 2021, the President issued Executive Order 14030 (“Climate-Related Financial Risk”)

reinstating Executive Order 13690, thereby reestablishing the FFRMS. Accordingly, FEMA is proposing an updated revision to its regulations and an updated supplementary policy to implement the FFRMS.

86 FR 27967 (May 25, 2021).

FEMA is proposing to amend 44 CFR part 9, “Floodplain Management and Protection of Wetlands,” and issue a supplementary policy to implement the FFRMS and update the agency's 8-step process. As mentioned above, the FFRMS is a flood resilience standard that is required for “Federally funded projects” and provides a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands. A floodplain is any land area that is subject to flooding and refers to geographic features with undefined boundaries. 44 CFR part 9 describes the 8-step process FEMA uses to determine whether a proposed action would be located within or affect a floodplain, and if so, whether and how to continue with or modify the proposed action. Executive Order 11988, as amended,

and the FFRMS changed the Executive Branch-wide guidance for defining the “floodplain” with respect to “Federally funded projects” (

i.e.,

actions involving the use of Federal funds for new construction, substantial improvement, or to address substantial damage to a structure or facility). The revised definitions allow for consideration of both current and future flood risks in defining the floodplain to minimize the impact of floods on human health, safety, and welfare and reduce the risk of flood loss. For actions subject to the FFRMS, FEMA proposes to use the updated definition of “floodplain” contained in the Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input (Revised Guidelines).

As discussed further below, the FFRMS allows the agency to define “floodplain” using any of three approaches or a fourth approach resulting from any other method in an update to the FFRMS. In many cases, each of these approaches would result in a larger floodplain and a requirement to design projects such that they are resilient to a higher vertical elevation. For actions that do not meet the definition of an action subject to the FFRMS, FEMA would continue to use the historical definition of floodplain with minor clarifying revisions to help stakeholders better understand the terminology. Regardless of whether the action is subject to FFRMS, FEMA will follow the Revised Guidelines

to determine whether an action is in the floodplain. Finally, the proposed rule would require the use, where possible, of natural systems, ecosystem processes, and nature-based approaches in the development of alternatives for all actions proposed in a floodplain.

Executive Order 13690 amended Executive Order 11988 in 2015 and was revoked in 2017 by Executive Order 13807. Executive Order 13690 was reinstated in 2021 by Executive Order 14030.

See

80 FR 64008 (Oct. 22, 2015), 82 FR 40463 (Aug. 24, 2017), and 86 FR 27967 (May 25, 2021).

80 FR 64008 (Oct. 22, 2015);

https://www.regulations.gov/document/FEMA-2015-0006-0358.

(Last accessed July 12, 2023).

Id.

FEMA believes that this rule is an important step toward mitigating future flood risk, and that such mitigation will ultimately benefit communities by allowing them to recover from future disasters more efficiently and effectively. The United States is experiencing increased flooding and flood risk from climate change.

The full extent of future changes in flood risk has not yet been estimated across the full inventory of Federal, State, local, Tribal, and territorial properties. However, in a survey of Federal properties alone, those assessments that have been completed identified over 40,000 individual Federal buildings and structures with a combined replacement cost of $81 billion located in the current 100-year floodplain and approximately 160,000 structures with a total replacement cost of $493 billion located in the current 500 year floodplain.

Approximately 10,250 individual Federal buildings and structures were identified in coastal areas with a combined replacement cost of $32.3 billion that would be severely impacted by an eight-feet sea-level rise scenario and over 12,195 individual Federal buildings and structures with a combined replacement cost of over $43.7 billion under a ten-foot “worst case” sea level rise scenario.

This proposed rule would ensure that actions subject to the FFRMS are designed to be resilient to both current and future flood risks to minimize the impact of floods on human health, safety, and welfare

and to protect Federal investments by reducing the risk of flood loss.

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).

Federal Budget Exposure to Climate Risk. OMB Assessment found

https://www.whitehouse.gov/wp-content/uploads/2022/04/ap_21_climate_risk_fy2023.pdf

(last accessed July 12, 2023).

Id.

FEMA estimated the total impacts of the proposed rule by analyzing the impact of the FVA, 0.2PFA and CISA for FEMA's Public Assistance (PA), Individual Assistance (IA), and Hazard Mitigation Assistance (HMA) grant programs by examining the number of projects that would be subject to the proposed requirements in the first 10 years after the rule's publication.

FEMA's analysis focused on the costs, benefits, and transfer payments (

i.e.,

impacts on FEMA grants), that would result over a 50-year period from applying the requirements of the proposed rule to those projects, for a total period of analysis spanning 60 years. Tables 1 and 2 show the total impacts of this proposed rule under the three approaches for each of the affected programs.

FEMA used an average of the number of affected projects during the prior 10-year period to estimate the average annual impacts of the future 10-year period.

Table 1—Summary of Costs, Transfers and Benefits by Approach and Program for Affected Projects in Years 1-10

[Low estimate, 2021$]

Costs *

Undiscounted

3% Discount rate

Present value

Annualized

7% Discount rate

Present value

Annualized

CISA Total (primary) (+5-ft)

$138,393,786

$118,052,707

$4,265,594

$97,202,003

$6,923,623

102,794,460

87,685,759

3,168,346

72,198,527

5,142,645

1,421,690

1,212,730

43,820

998,537

71,125

HMA

48,908,310

41,719,781

1,507,459

34,351,150

2,446,806

FVA Total

61,994,588

52,882,642

1,910,806

43,542,402

3,101,492

0.2PFA Total

53,397,625

45,549,257

1,645,829

37,504,256

2,671,399

FEMA Admin

3,741,680

3,267,150

118,052

2,776,613

197,776

Not Quantified

Not Estimated:

Increased resiliency standard for approximately 20,961 facility projects over 10 years, Additional costs for Adding Requirements to Buildings with Basements, Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for floodproofing, and Project Delays and Forgone Projects.

Transfer Payments from FEMA to Grant Recipients *

CISA Total (primary) (+5-ft)

109,216,359

93,163,768

3,366,283

76,709,000

5,463,923

82,955,130

70,762,410

2,556,855

58,264,212

4,150,115

1,421,690

1,212,730

43,820

998,537

71,125

HMA

36,681,233

31,289,834

1,130,594

25,763,363

1,835,104

FVA Total

48,898,424

41,711,348

1,507,154

34,344,206

2,446,311

0.2PFA Total

41,973,888

35,804,576

1,293,725

29,480,702

2,099,888

Benefits *

PA (CISA, primary) (+1-ft)

55,180,000

47,069,660

1,700,766

38,756,122

2,760,569

Not Quantified

Not Estimated:

Damage Avoidance for approximately 13,254 IA and HMA structure projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of Critical Facilities, Reduction of Personal and Community Impacts.

* FEMA focused its analysis on the projects impacted in the first 10 years after the rule's publication. FEMA considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures.

Table 2—Summary of 60-Year Costs, Transfers and Benefits by Approach and Program for Affected Projects in Years 1-10

[High estimate, 2021$]

Costs *

Undiscounted

3% Discount rate

Present value

Annualized

7% Discount rate

Present value

Annualized

CISA Total (primary) (+5-ft)

$151,319,537

$129,078,635

$4,663,993

$106,280,511

$7,570,278

120,722,020

102,978,331

3,720,912

84,790,095

6,039,533

1,421,690

1,212,730

43,820

998,537

71,125

HMA

48,908,310

41,719,781

1,507,459

34,351,150

2,446,806

FVA Total

68,035,769

58,035,891

2,097,008

47,785,478

3,403,723

0.2PFA Total

57,766,400

49,275,911

1,780,484

40,572,701

2,889,962

FEMA Admin

4,942,430

4,291,414

155,061

3,619,968

257,848

Not Quantified

Not Estimated:

Transfer Payments from FEMA to Grant Recipients *

CISA Total (primary) (+5-ft)

119,647,439

102,061,693

3,687,791

84,035,355

5,985,773

97,422,670

83,103,514

3,002,776

68,425,607

4,873,903

1,421,690

1,212,730

43,820

998,537

71,125

HMA

36,681,233

31,289,834

1,130,594

25,763,363

1,835,104

FVA Total

53,773,657

45,870,019

1,657,420

37,768,366

1,657,420

0.2PFA Total

45,499,493

38,811,991

1,402,392

31,956,941

2,276,268

Benefits *

PA (CISA, primary) (+1-ft)

61,985,720

52,875,076

1,910,533

43,536,175

3,101,048

Not Quantified

Not Estimated:

Table 3 provides the estimated number of structures and facilities affected by the proposed rule over the first 10 years, assuming that each approach is the only expansion option. Structures, which are walled and roofed buildings, would comply with the proposed FFRMS through elevating or floodproofing to the required height. Facilities, which are any human-made or human-placed items other than a structure such as roads and bridges, would require different mitigation measures in order to comply with the increased resiliency standard of the proposed rule. The monetized impacts of this rule are representative of the floodproofing and elevation mitigation measures that would be required of structures. However, for reasons explained in more detail later, FEMA was unable to monetize the impacts of the rule for facilities.

Table 3—Estimated Number of Structures and Facilities Affected by the Proposed Rule in Years 1-10

FFRMS approach

Structures

HMA

Total

structures

Facilities

HMA

Total

facilities

Total

projects

FVA

1,090

2,650

9,492

13,232

20,120

841

20,961

34,193

0.2PFA

840

2,650

9,447

12,937

20,120

841

20,961

33,898

CISA

1,173

2,903

10,351

14,427

20,120

841

20,961

35,388

Quantified estimates of the benefits of this rule are available for only non-residential PA Category E projects, which are for structures. Due to the highly project-specific nature of facilities projects and numerous options for making them resilient, FEMA could not estimate the costs of improving flood resiliency of facilities.

Tables 1 and 2 show that the total 60-year benefits for non-residential PA Category E projects in the first 10 years is $43.5 million (7 percent, high). This benefit is for adding one foot of freeboard, assuming a 59-inch sea level rise (SLR).

Although the cost for PA Category E projects is $84.8 million (7 percent, high), this cost represents 5 feet of freeboard (FEMA's assumption for CISA).

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.

Category E projects are public buildings and contents.

See

Public Assistance Fact Sheet at

https://www.fema.gov/sites/default/files/2020-07/fema_public-assistance-fact-sheet_10-2019.pdf.

FEMA used one foot for benefits as the 2022 report only specifies monetary benefits for an additional one foot over current requirements. FEMA included this number in the quantified benefits because it is the only monetary benefit available for any freeboard level.

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.

III. Legal and Factual Background

Below, FEMA describes in more specific detail the basis for this proposed rule. Section III.A describes Executive Order 11988, the Water Resources Council's 1978 “Floodplain Management Guidelines” (1978 Guidelines), and the statutory authority underlying the Executive Order. Executive Order 11988 along with the 1978 Guidelines established an 8-step decision-making process by which Federal agencies carry out Executive Order 11988's direction to avoid the long- and short-term adverse impacts associated with the occupancy and modification of the floodplain and avoid the direct or indirect support of floodplain development whenever there is a practicable alternative. Section III.B describes FEMA's statutory authority to require its grant recipients to carry out repairs or construction in accordance with specific standards. Section III.C describes FEMA's implementing regulations at 44 CFR part 9, which closely follow the model decision-making process under Executive Order 11988. Section III.D describes how lessons learned from major events, including Hurricane Sandy, prompted reevaluation of the prevailing standard for determining whether a proposed action was located within a floodplain. Section III.E describes the development of Executive Order 13690, the Federal Flood Risk Management Standard, and additional guidance in the Revised Guidelines issued in 2015 as well as subsequent amendments to Executive Order 11988. Section III.F describes the substantive components of the Federal Flood Risk Management Standard and Section III.G describes FEMA's proposed approach to implement the required changes.

A. Executive Order 11988, “Floodplain Management”

The President issued Executive Order 11988 (42 FR 26951, May 25, 1977) in furtherance of the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001

et seq.

); the Flood Disaster Protection Act of 1973, as amended (Pub. L. 93-234, 87 Stat. 975); and the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321

et seq.

). The National Flood Insurance Act, as amended by the Flood Disaster Protection Act establishes a multi-purpose program to provide flood insurance, minimize exposure of property to flood losses, minimize the damage caused by flood losses, and guide the development of proposed construction, where practicable, away from floodplains.

The National Flood Insurance Act and the Flood Disaster Protection Act highlight coordination of flood insurance with land management programs in flood-prone areas. NEPA requires Federal agencies to analyze the environmental impacts of proposed actions and evaluate alternatives to those actions, which includes the evaluation of the impacts of proposed actions in the floodplains.

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.”

In furtherance of and consistent with this statutory foundation, Executive Order 11988 requires Federal agencies to avoid, to the extent possible, the long- and short-term adverse impacts associated with the occupancy and modification of floodplains, where there is a practicable alternative. The Executive Order requires each Federal agency to provide leadership and take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for: (1) acquiring, managing, and disposing of Federal lands and facilities; (2) providing federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. It states that each agency has a responsibility to evaluate the potential effects of any actions it may take in a floodplain; to ensure that its planning, programs, and budget requests reflect consideration of flood hazards and floodplain management; and to prescribe procedures to implement the policies and requirements of the Executive Order.

See

42 U.S.C. 4001 and 4102.

See

42 U.S.C. 4332(2)(C).

See

42 U.S.C. 4331(b)(3).

To meet these requirements, each agency, before taking an action, must determine whether the proposed action will occur in a floodplain.

Section (6)(c) of Executive Order 11988 defines the word “floodplain” to mean “the lowland and relatively flat areas adjoining inland and coastal waters including floodprone areas of offshore islands, including at a minimum, the area subject to a one percent or greater chance of flooding in any given year.”

Any action FEMA takes in a floodplain, including its provision of grants for disaster assistance, undergoes an analysis pursuant to Executive Order 11988 (unless the action is specifically exempted from the requirements of the Order). The grant recipient, therefore, generally provides information to FEMA about the practicability of alternatives outside the floodplain and other information to assist in the analysis.

This is also referred to as the “100-year floodplain” or the “base floodplain.”

If the action will occur in a floodplain, the agency must consider alternatives to avoid adverse effects and incompatible development in the floodplain. If the agency finds that the only practicable alternative requires the action to occur in the floodplain, the agency must, prior to taking the action, design or modify the action in order to minimize potential harm to or within the floodplain. Additionally, the agency must prepare and circulate a notice explaining why the action is proposed to be located in the floodplain. Particularly relevant to FEMA, the Executive Order also requires agencies to provide appropriate guidance to applicants for grant funding to encourage them to evaluate the effects of their proposals in floodplains prior to submitting grant applications.

Executive Order 11988 requires agencies to prepare implementing procedures in consultation with the Water Resources Council (WRC),

FEMA, and the Council on Environmental Quality (CEQ). As noted, the WRC issued “Floodplain Management Guidelines” (1978 Guidelines), the authoritative interpretation of Executive Order 11988.

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.

The Water Resources Council, established by statute (42 U.S.C. 1962a-1), is charged with maintaining a continuing study and preparing an assessment biennially, or at such less frequent intervals as the Council may determine, of the adequacy of supplies of water necessary to meet the water requirements in each water resource region in the United States and the national interest therein; and maintaining a continuing study of the relation of regional or river basin plans and programs to the requirements of larger regions of the Nation and of the adequacy of administrative and statutory means for the coordination of the water and related land resources policies and programs of the several Federal agencies. It is responsible for appraising the adequacy of existing and proposed policies and programs to meet such requirements and making recommendations to the President with respect to Federal policies and programs.

43 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines can be found at this link:

http://portal.hud.gov/hudportal/documents/

huddoc?id=DOC_14216.pdf

(last accessed July 12, 2023).

B. Statutory Authority To Require FFRMS Under FEMA Grant Programs

FEMA's grant programs that fund new construction, substantial improvement, or repairs to address substantial damage are authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5121

et seq.

) and the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001

et seq.

). FEMA generally has authority under these discretionary grant programs to set eligibility criteria. Further, section 323 of the Stafford Act authorizes FEMA to require, as a condition of grant funding for all Stafford Act programs, that the repair or construction of private and public facilities be completed in accordance with “applicable standards of safety, decency, and sanitation in conformity with applicable codes, specifications and standards.”

Section 323 also grants FEMA discretion to require any other safe land use and construction practices it deems appropriate after adequate consultation with appropriate State and local government officials.

Section 404 of the National Flood Insurance Act grants FEMA the authority to provide flood mitigation grant funding and requires the activities funded to be consistent with floodplain management criteria developed by the Administrator.

See

42 U.S.C. 5165a(a)(1)

See

42 U.S.C. 5165a(a)(2)

See

42 U.S.C. 4104c and 4102.

C. 44 CFR Part 9, “Floodplain Management and Protection of Wetlands”

Consistent with the National Flood Insurance Act, the Flood Disaster Protection Act, and NEPA, FEMA promulgated regulations implementing Executive Order 11988 at 44 CFR part 9, “Floodplain Management and Protection of Wetlands.”

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.

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.

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.

Pursuant to section 8 of Executive Order 11988, part 9 does not apply to assistance provided for emergency work essential to save lives and protect property and public health and safety, performed pursuant to sections 403 and 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5170b and 5192). In addition, FEMA applies part 9 programmatically to the National Flood Insurance Program (NFIP)

. FEMA does not apply part 9 to site-specific actions under the NFIP because the establishment of programmatic criteria, rather than the application of the programmatic criteria to individual situations, is the action with the potential to influence/affect floodplains.

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).

For example, Part 9 requires FEMA to apply the 8-step process to a programmatic determination of categories of structures to be insured but does not require FEMA to apply an 8-step review to a determination of whether to insure each individual structure.

See

45 44 CFR 9.5(f).

Below FEMA outlines the existing 8-step decision-making process that the agency currently follows in applying Executive Order 11988 to its actions:

Step (1) Floodplain and wetland determination (44 CFR 9.7).

Under Step 1, FEMA must determine if a proposed agency action is located in or affects the 1 percent annual chance floodplain (or, for critical actions, the 0.2 percent annual chance floodplain) or wetland. The 1 percent annual chance (or base or 100-year) floodplain is the area subject to inundation by the 1 percent annual chance flood, which is that flood which has a 1 percent chance of occurrence in any given year (also known as the base or 100-year flood). A “critical action” is any activity for which even a slight chance of flooding would be too great.

The minimum floodplain of concern for critical actions is the 0.2 percent annual chance (or 500-year) floodplain, which is the area subject to inundation from a flood having a 0.2 percent chance of occurring in any given year. The 0.2 percent annual chance floodplain generally covers a larger area than the 1 percent annual chance floodplain. FEMA's regulations state that in each instance where the 8-step process refers to the 1 percent annual chance floodplain, an agency should substitute the 0.2 percent annual chance floodplain for the 1 percent annual chance floodplain if the proposed action is a critical action. Absent a finding to the contrary, FEMA currently assumes a proposed action involving a facility or structure that has been flooded is in the floodplain.

The concept of critical actions evolved during the drafting of the 1978 Guidelines and reflects a concern that the impacts of floods on human safety, health, and welfare for many activities could not be minimized unless a higher degree of protection than the base flood was provided. See Interagency Task Force on Floodplain Management, Further Advice on Executive Order 11988 Floodplain Management (1986) (last accessed July 12, 2023).

FEMA follows a specific regulatory sequence in order to make its floodplain determination. First, FEMA must consult the Flood Insurance Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and the Flood Insurance Study (FIS) for the area.

A FIRM is an official, detailed map issued by the NFIP, generally showing elevations and boundaries of the 1 percent annual chance floodplain and the 0.2 percent annual chance floodplain.

The FBFM is a version of a flood map that shows only the floodway

and flood boundaries. An FIS report is an examination, evaluation, and determination of flood hazards and, if appropriate, corresponding water surface elevations. If a FIRM is not available, FEMA must obtain a Flood Hazard Boundary Map (FHBM) which is a less detailed map than a FIRM and shows the approximate areas of the 1 percent annual chance floodplain. If data on flood elevations, floodways, or coastal high hazard areas are needed, or if the map does not delineate the flood hazard boundaries in the vicinity of the proposed site, FEMA must seek detailed information from a list of sources included in the regulations. See 44 CFR 9.7(c)(1)(ii). If the sources listed do not have or know of detailed information and are unable to assist in determining whether the proposed site is in the 1 percent annual chance floodplain, FEMA must seek the services of a licensed consulting engineer experienced in this type of work. If, however, a decision involves an area or

location within extensive Federal or State holdings or a headwater area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA will seek information from the land administering agency before seeking information and/or assistance from the list of sources included in the regulations. Then, if none of the sources listed has information or can provide assistance, FEMA will seek the services of an experienced Federal or other engineer. If the proposed action is outside the floodplain or wetland and has no identifiable impacts or support, the action can be implemented (Step 8).

FEMA also utilizes best available information in making floodplain determinations, which may include preliminary FIRMs or Advisory Base Flood Elevations (ABFEs). See FEMA Policy: Guidance on the Use of Available Flood Hazard Information (last accessed July 12, 2023).

FEMA estimates that only approximately 20 percent of mapped flood zones have detailed floodplain boundaries of the 0.2 percent annual chance floodplain.

The floodway is the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. See 44 CFR 59.1.

Step (2) Early public review (44 CFR 9.8).

FEMA must make public its intent to locate a proposed action in the floodplain or a wetland.

FEMA must provide adequate information to enable the public to have an impact on the decision outcome for all proposed actions having potential to affect, adversely, or be affected by floodplains or wetlands. For each action having national significance for which notice is provided, FEMA uses the

Federal Register

as the minimum means for notice and will provide notice by mail to national organizations reasonably expected to be interested in the action. 44 CFR 9.8(c)(5) describes the contents of the public notice, such as a description of the action, the degree of hazard involved, a map of the area, or other identification of the floodplain, and identification of the responsible agency official.

This step is required for any action that is within or affects a floodplain or wetland unless exempted or subject to the abbreviated processes outlined in 44 CFR 9.5.

Step (3) Practicable alternatives (44 CFR 9.9).

If the action is in the floodplain or a wetland, FEMA will identify and evaluate practicable alternatives to carrying out a proposed action in floodplains or wetlands, including the following: alternative sites outside the floodplain or wetland; alternative actions which serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by the floodplain or wetland; and “no action.” The floodplain or wetland site itself must be a practicable location in light of the other factors. Under 44 CFR 9.9(c), FEMA will analyze several factors in determining the practicability of the alternatives described in 44 CFR 9.9(b), namely natural environment, social concerns, economic aspects, and legal constraints. 44 CFR 9.9(d) states that FEMA will not locate the proposed action in the floodplain or wetland if a practicable alternative exists outside the floodplain or wetland. For critical actions, FEMA will not locate the proposed action in the 0.2 percent annual chance floodplain if a practicable alternative exists outside the 0.2 percent annual chance floodplain. Even if no practicable alternative exists outside the floodplain, in order to carry out the action the floodplain or wetland must itself be a practicable location in light of the review required under Step 3.

Step (4) Impact of chosen alternative (44 CFR 9.10).

FEMA must identify if the action has impacts in the floodplain or wetland. 44 CFR 9.10(b) provides that FEMA will identify the potential direct and indirect adverse impacts associated with the occupancy and modification of floodplains or wetlands and the potential direct and indirect support of floodplain or wetland development that could result from the proposed action.

Step (5) Minimize impacts (44 CFR 9.11).

If the proposed action has identifiable impacts in the floodplain or wetland or directly or indirectly supports development in the floodplain or wetland, FEMA must minimize these effects and restore and preserve the natural and beneficial values served by floodplains and wetlands. 44 CFR 9.11(b) states generally that FEMA will design or modify its actions to minimize harm to or within the floodplain; will minimize destruction, loss, or degradation of wetlands; will restore and preserve natural and beneficial floodplain values; and will preserve and enhance natural and beneficial wetland values. Pursuant to 44 CFR 9.11(c), FEMA will more specifically minimize potential harm to lives and the investment at risk from the 1 percent annual chance flood, or, in the case of critical actions, from the 0.2 percent annual chance flood; potential adverse impacts the action may have on others; and potential adverse impacts the action may have on floodplain values.

Pursuant to 44 CFR 9.11(d), FEMA will not allow new construction or substantial improvement in a floodway and will not allow new construction in a coastal high hazard area, except for a functionally dependent use

or a structure or facility which facilitates an open space use. For a structure which is a functionally dependent use, or which facilitates an open space use, FEMA will not allow construction of a new or substantially improved structure in a coastal high hazard area unless it is elevated on adequately anchored pilings or columns and securely anchored to such piles or columns so that the lowest portion of the structural members of the lowest floor (excluding the pilings or columns) is elevated to or above the 1 percent annual chance flood level (the 0.2 percent annual chance flood level for critical actions) (including wave height). Regarding elevation of structures, 44 CFR 9.11(d)(3) states that there will be no new construction or substantial improvement of structures unless the lowest floor of the structures (including basement) is at or above the level of the 1 percent annual chance flood, and there will be no new construction or substantial improvement of structures involving a critical action unless the lowest floor of the structure (including the basement) is at or above the level of the 0.2 percent annual chance flood.

A functionally dependent use means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water.

See

44 CFR 9.4.

Step (6) Reevaluate alternatives (44 CFR 9.9).

FEMA must reevaluate the proposed action. Pursuant to 44 CFR 9.9(e), upon determination of the impact of the proposed action to or within the floodplain or wetland and of what measures are necessary to comply with the requirement to minimize harm to and within the floodplains and wetlands, FEMA will determine whether: the action is still practicable at a floodplain or wetland site in light of the exposure to flood risk and the ensuing disruption of natural values, the floodplain or wetland site is the only practicable alternative, the scope of the action can be limited to increase the practicability of previously rejected non-floodplain or non-wetland sites and alternative actions, and minimization of harm to or within the floodplain or wetland can be achieved using all practicable means. Pursuant to 44 CFR 9.9(e)(2), FEMA will take no action in a floodplain or wetland unless the importance of the floodplain or wetland site clearly outweighs the requirement of Executive Order 11988 to avoid direct or indirect support of floodplain or wetland development; reduce the risk of flood loss; minimize the impact of floods on human safety, health, and welfare; and restore and preserve floodplain and wetland values.

Step (7) Findings and public explanation (44 CFR 9.12).

If FEMA finds that the only practicable alternative is to take the action in the floodplain or wetland, it must give public notice of the reasons for this finding. 44 CFR 9.12(e) describes the requirements for the content of such notice, such as a statement of why the proposed action must be located in an area affecting or affected by a floodplain or wetland, a description of all significant facts considered in making

this determination, identification of the responsible official, and a map of the relevant area. FEMA may implement the proposed action after it allows a reasonable period for public response.

Step (8) Implementation (Multiple sections of 44 CFR and applicable program guidance).

Implementation of the requirements of Executive Order 11988 is integrated into the specific regulations and procedures of the grant program under which the action is proposed to take place. After the proposed action is implemented, the FEMA program providing the funding determines under its applicable regulations and procedures whether the grant recipient has completed the prescribed mitigation.

D. Reevaluation of the 1 Percent Annual Chance Flood Standard

In the aftermath of Hurricane Sandy, the President issued Executive Order 13632,

which created the Federal Interagency Hurricane Sandy Rebuilding Task Force (Sandy Task Force). Pursuant to direction from Executive Order 13632 to remove obstacles to resilient rebuilding, the Sandy Task Force reevaluated the 1 percent chance/100-year standard. In April 2013, the Sandy Task Force announced a new Federal flood risk reduction standard which required elevation or other flood-proofing to 1 foot above

the best available and most recent 1 percent annual chance flood elevation and applied that standard to all Federal disaster recovery investments in Sandy-affected communities.

The Sandy Task Force called for all major rebuilding projects in Sandy-affected communities using Federal funding to be elevated or otherwise flood-proofed according to this new flood risk reduction standard.

77 FR 74341 (Dec. 14, 2012).

This is also known as “freeboard.” “Freeboard” is a factor of safety usually expressed in feet above a flood level for purposes of floodplain management. Freeboard tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrologic effect of urbanization of the watershed.

See https://www.fema.gov/glossary/freeboard

(last accessed July 12, 2023).

HUD release entitled, “Federal Government Sets Uniform Flood Risk Reduction Standard for Sandy Rebuilding Projects,” April 4, 2013.

In June 2013, the President issued a Climate Action Plan

that directed agencies to take appropriate actions to reduce risk to Federal investments, specifically directing agencies to build on the work done by the Sandy Task Force and to update their flood risk reduction standards for “federally-funded . . . projects” to ensure that “projects funded with taxpayer dollars last as long as intended.”

After a year-long process of receiving input from State, local, Tribal, and territorial governments; private businesses; trade associations; academic organizations; civil society; and other stakeholders, the Task Force provided a recommendation to the President in November 2014. The Climate Task Force recommended that, in order to ensure resiliency, Federal agencies, when taking actions in and around floodplains, should include considerations of the effects of changing conditions, including sea level rise, more frequent and severe storms, and increasing river flood risks. The Climate Task Force also recommended that the best available climate data should be used in siting and designing projects receiving Federal funding, and that margins of safety, such as freeboard and setbacks, should be included.

Executive Office of the President,

The President's Climate Action Plan

(2013), available at

https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf. (last accessed July 12, 2023).

See id

at 15.

President's State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience,

Recommendations to the President,

(2014),

available at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf

at 7 (last accessed July 12, 2023).

E. Executive Order 13690, the Federal Flood Risk Management Standard and Subsequent Amendments to Executive Order 11988, and Revisions to the 1978 Guidelines

Executive Order 13690 amended Executive Order 11988 and established the FFRMS. It required FEMA to publish an updated version of the Implementing Guidelines (revised to incorporate the changes required by Executive Order 13690 and the FFRMS) in the

Federal Register

for notice and comment. Finally, Executive Order 13690 required the WRC to issue final Guidelines to provide guidance to agencies on the implementation of Executive Order 11988, as amended, consistent with the FFRMS.

80 FR 6425, Feb. 4, 2015.

FEMA, acting on behalf of the Mitigation Framework Leadership Group, published a

Federal Register

notice for a 60-day notice and comment period seeking comments on a draft of the Revised Guidelines on February 5, 2015.

FEMA received over 556 separate submissions.

The final Revised Guidelines were issued on October 8, 2015.

The Revised Guidelines contain an updated version of the FFRMS (located at Appendix G of the Revised Guidelines), reiterate key concepts from the 1978 Guidelines, and explain the new concepts resulting from the FFRMS. In response to public comments, the Mitigation Framework Leadership Group clarified the distinction between actions and Federally funded projects.

80 FR 6530, Feb. 5, 2015.

FEMA received approximately 556 separate submissions, which raised over 2700 separate issues and positions. Written comments were received at a series of 8 in-person listening sessions across the country (135 submissions); verbal comments were shared during the public comment periods of these same listening sessions (74 commenters); comments were submitted through the FFRMS email address (20 submissions); comments were submitted through

regulations.gov

(326 submissions); and comments were submitted as part of a petition of support (1 submission).

80 FR 64008 (Oct. 22, 2015);

https://www.regulations.gov/document/FEMA-2015-0006-0358

(last accessed July 12, 2023).

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).

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”)

reinstating Executive Order 13690, thereby reestablishing the FFRMS. Executive Order 14030 also states that the Revised Guidelines issued in 2015 were never revoked and remain in effect. As such, FEMA reviewed its prior NPRM and proposed policy and decided to revise its approach to implementation based on lessons learned during and since the 2016 rulemaking process. Specifically, FEMA first partially implemented the FFRMS by policy with respect to covered projects in existing floodplains in its Public Assistance and Hazard Mitigation Assistance programs.

FEMA next proposes to fully implement the FFRMS through this updated revision to its regulations and an updated supplementary policy.

86 FR 27967 (May 25, 2021).

See

FEMA Policy 104-22-003, “Partial Implementation of the Federal Flood Risk Management Standard for Public Assistance (Interim),” June 3, 2022 found at

https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf

(last accessed July 12, 2023) and FEMA Policy 206-21-003-0001, “Partial Implementation of the Federal Flood Risk Management Standard for Hazard Mitigation Assistance Program,” Dec. 7, 2022 found at

https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf

(last accessed July 12, 2023).

F. Substantive Components of the FFRMS

The FFRMS is a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands.

Incorporating the FFRMS will expand the floodplain and require projects be built with higher resiliency. Applying the FFRMS will help ensure that Federally funded projects will last as long as intended. In addition, the FFRMS and revised guidelines require the evaluation of natural features and nature-based approaches, where possible, in the analysis of practicable alternatives in Step 3 of the decision-making process for all Federal actions.

Although the FFRMS describes various approaches for determining the higher vertical flood elevation and corresponding horizontal floodplain for Federally funded projects, it is not meant to be an “elevation” standard. The FFRMS is a resilience standard. The vertical flood elevation and corresponding horizontal floodplain determined using the approaches in the FFRMS establish the level to which a structure or facility must be resilient. This may include using structural or non-structural methods to reduce or prevent damage; elevating a structure; or, where appropriate, designing it to adapt to, withstand, and rapidly recover from a flood event.

See

“Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input” (Oct. 8, 2015), found at

https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf

(last accessed July 12, 2023).

Under the FFRMS, a Federal agency may establish the floodplain for actions subject to the FFRMS using any of the following approaches:

•

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;

•

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);

•

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

•

Approach 4:

the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS.

See

Executive Order 13690 Section 2(i), 80 FR 6425, 6426 (Feb. 4, 2015).

Each of the approaches is described in further detail below.

FFRMS Approach 1: CISA.

The FFRMS and Revised Guidelines state that the CISA is the preferred approach, and that Federal agencies should use this approach when data to support such an analysis are available. CISA uses existing, sound science and engineering methods (

e.g.,

hydrologic and hydraulic analysis and methods used to establish current flood elevations and floodplain maps), supplemented with best available and actionable climate science and consideration of impacts from projected land cover/land use changes, long-term erosion, and other processes that may alter flood hazards over the lifecycle of the Federal investment.

For areas vulnerable to coastal flood hazards, the CISA includes consideration of the regional sea-level rise variability and lifecycle of the Federal action. This includes use of the Department of Commerce's National Oceanic and Atmospheric Administration's (NOAA's) or similar global mean sea-level-rise scenarios. These scenarios would be adjusted to the local relative sea-level conditions and would be combined with surge, tide, and wave data using state-of-the-art science in a manner appropriate to policies, practices, criticality, and consequences. For areas vulnerable to riverine flood hazards (

i.e.,

flood hazards stemming from a river source), the CISA would account for changes in riverine conditions due to current and future changes in climate and other factors such as land use by applying state-of-the-art science in a manner appropriate to policies, practices, criticality, and consequences (risk). The CISA for critical actions would utilize the same methodology as used for non-critical actions that are subject to Executive Order 11988, as amended, but with an emphasis on criticality as one of the factors for agencies to consider when conducting the analysis.

See

Guidelines, pgs. 36-37.

FFRMS Approach 2: FVA.

The FFRMS and Revised Guidelines define freeboard values as an additional 2 feet added to the 1 percent annual chance flood elevation, or, for critical actions, an additional 3 feet added to the 1 percent annual chance flood elevation. In other words, the floodplain established by the FVA is the equivalent of the 1 percent annual chance floodplain, plus either 2 or 3 feet of vertical elevation, as applicable based on criticality, and a corresponding increase in the horizontal extent of the floodplain. The increased horizontal extent will not be the same in every case. As shown in the next two illustrations, when the same vertical increase is applied in multiple actions subject to the FFRMS in different areas, the amount of the increase in the horizontal extent of the respective floodplains will depend upon the topography of the area surrounding the proposed location of the action. FVA Illustration A reflects an area with relatively flat topography on either side of the flooding source (

i.e.,

river or stream) channel. This is generally representative of coastal plains, portions of the Midwest, and other areas with less variation in topography. FVA Illustration B reflects an area with steep topography on either side of the flooding source channel. This is representative of mountainous areas or areas with changes in elevation near the flooding source. With the same addition of 2 feet to the 1 percent annual chance flood elevation applied to both example locations, the increase to the horizontal extent of the floodplain in FVA Illustration A is comparatively larger than the increase to the horizontal extent of the floodplain in FVA Illustration B. These illustrations visually depict the fact that the horizontal increase to the floodplain will not be uniform when applying the same increase to establish the FVA and

will vary depending on local topography.

BILLING CODE 9111-66-P

EP02OC23.000

EP02OC23.001

BILLING CODE 9111-66-C

FFRMS Approach 3: 0.2PFA.

Agencies may use available 0.2 percent annual chance (or “500-year”) flood data as the basis of the FFRMS elevation and corresponding floodplain extent. Under this approach the same floodplain and elevation is used for critical and non-critical actions. The FFRMS and Revised Guidelines note that often the 0.2 percent annual chance flood elevation data provided by FEMA in coastal areas only considers storm-surge hazards; these data do not include local wave action or storm-induced erosion that are considered in the computation of flood elevations. The FFRMS and Revised Guidelines encourage agencies to obtain or develop the necessary data, including wave heights, to ensure that any 0.2 percent annual chance flood data applied will achieve an appropriate level of flood resilience or use the FVA approach instead for the proposed investment.

FFRMS Approach 4: Update to FFRMS.

The Mitigation Framework Leadership Group in consultation with the Federal Interagency Floodplain Management Task Force must reassess the FFRMS annually after seeking stakeholder input, and provide recommendations to the WRC to update the FFRMS. if warranted. The WRC must issue an update to the FFRMS at least every 5 years. The updates ensure the floodplain determination process for actions subject to the FFRMS reflects current methodologies.

Further Guidance on Application of the FFRMS Approaches To Establishing the Floodplain.

The FFRMS and Revised Guidelines state that when an agency does not use CISA in a coastal flood hazard area and where the FEMA 0.2 percent annual chance flood elevation does not include wave height, or a wave height has not been determined, the 0.2 percent annual chance elevation should not be used and the FVA should be used instead. The FFRMS and Revised Guidelines note that where the 0.2-percent-annual-chance-flood elevation does not consider wave action, the result will likely either be lower than the current base flood elevation or the base flood elevation plus applicable freeboard. Where wave action has been incorporated into the 0.2 percent annual chance elevation, the 0.2 percent annual chance elevation can be used.

The Guidelines state that for riverine flood hazard areas agencies may select either the FVA, or 0.2 percent annual chance flood elevation approach (or a combination of approaches, as appropriate) when actionable science is not available and an agency opts not to follow the CISA. It states that the agency is not required to use the higher of the elevations but may opt to do so. The elevation standards of the FFRMS are not intended to supplant applicable State, Tribal, territorial, or local floodplain protection standards. If such standards exceed the FFRMS, an agency should apply those standards if the agency determines the application of the standards is reasonable in light of the goals of Executive Order 11988, as amended.

See

Revised Guidelines at 53. The Revised Guidelines suggest that agencies should apply a reasonableness standard to higher State, Tribal, Territorial, or local (STTL) floodplain management standards. FEMA has historically deferred to higher local codes and standards from an STTL government in 44 CFR 9.11(d)(6) and will continue the practice through this rulemaking, rather than applying a case-by-case reasonableness analysis and believes this is appropriate because of program-specific controls that ensure higher standards are reasonable. Specifically, in the PA program, if an STTL government has adopted a code or standard that exceeds minimum standards set by FEMA, regulations at 44 CFR 206.226(d) require the code to be in place and adopted pre-disaster which guards against an STTL government's adoption of unreasonably high codes and standards. With respect to mitigation projects, they are all required to be cost-effective as a minimum criteria of eligibility.

See

42 U.S.C. 5170c(a); 42 U.S.C. 5133(b); 42 U.S.C. 4104c(c)(2)(A). This project-by-project cost-effectiveness analysis should guard against any STTL standards that are unreasonably high.

G. FEMA's Implementation of the FFRMS and the Revised Guidelines

When Executive Order 13690 was issued, and again when it was reinstated with Executive Order 14030, FEMA evaluated the application of the FFRMS with respect to its existing authorities and programs. The FFRMS establishes a flexible standard to improve resilience against the impact of flooding—to design for the intended life of the Federal investment. FEMA supports this principle. Between 1980 and 2021, the United States experienced 35 flooding disaster events, each with damages totaling over $1 billion or more, and a total of $164.2 billion in damages for those 35 flooding disasters.

FEMA, as a responsible steward of Federal funds, must ensure it does not needlessly repeat Federal investments in the same structures and/or facilities after flooding events. In addition, the FFRMS will help support the thousands of communities across the country recovering from disasters, seeking to mitigate future impacts of flooding and to strengthen infrastructure and other community assets to be more resilient to flood risk.

FEMA recognizes that the need to make structures resilient also requires an equitable and flexible approach to adapt to the needs of the Federal agency, local community, and the circumstances surrounding each project or action consistent with evolving science and engineering advancements that demonstrate a better understanding of flood risk and flood risk reduction.

See “Billion-Dollar Weather and Climate Disasters,”

https://www.ncdc.noaa.gov/billions,

DOI: 10.25921/stkw-7w73 (last accessed July 12, 2023).

For example, FEMA data indicates approximately 18,068 eligible applicants for public assistance have participated in the 8-step process required by 44 CFR part 9 between 2012 and 2021.

The current floodplain policy was designed to accept a specific level of flood risk utilizing the 1 percent or 0.2 percent annual chance floodplains. However, these values do not incorporate changing future conditions caused by increasing severity of flooding and other associated issues such as coastal erosion. The result is that the current level of the 1 percent annual chance and 0.2 percent annual chance flood elevation can underestimate the flooding risk to a particular action and leave communities at higher risk to future flooding events.

Where CISA is available and actionable, the risk of flooding can be determined based on climate science to identify the appropriate level of risk protection for an action based on factors such as local flood characteristics, criticality of the action, and planned lifespan of the action. As CISA is based on the available and actionable science for a specific location and action, the result is a determination of the appropriate level of resiliency to design minimization measures. Other methods may lower the flood risk as they are above the current floodplain policy, but in some instances, projects may be built to a higher resiliency than required (overbuilt) or to a lower resiliency than needed (underbuilt).

See http://www.asfpmfoundation.org/ace-images/forum/Meeting_the_Challenge_of_Change.pdf

FEMA intends to implement the FFRMS and the Revised Guidelines through this proposed rule and supplementary policy, which would (1) add or revise definitions to be consistent with those included in Executive Order 11988, as amended, and the Revised Guidelines to make them more accessible to stakeholders; (2) incorporate the use of the FFRMS approaches for establishing the floodplain into FEMA's existing 8-step process; and (3) include the requirement to use natural features and nature-based approaches, where possible, when developing alternatives to the proposed action. These revisions also update other sections of the 8-step process to reflect current FEMA policies and

processes and provide additional clarity.

Making the Initial Floodplain Determination.

As stated above, the FFRMS changed the definition of “floodplain” with respect to actions subject to the FFRMS (

i.e.,

actions involving the use of FEMA funds for new construction, substantial improvement, or to address substantial damage to a structure or facility). The FFRMS allows the agency to define “floodplain” using any of three approaches and take actions that are informed by the best available and actionable science. Agencies should use the CISA approach when the best available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science are available for actions subject to the FFRMS.

For actions which do not meet the definition of an action subject to the FFRMS, an agency should continue to use the historical definition of floodplain with minor clarifying revisions. This means that one of the first steps an agency must take is to determine the appropriate floodplain. Figure 1 illustrates the process by which FEMA would decide which floodplain would apply to an action subject to the FFRMS compared to an action that would not be subject to the FFRMS.

FEMA considers data to be available and actionable based on the Revised Guidelines. Appendix H of the Revised Guidelines states that best available data and science are transparent—clearly outlines assumptions, applications, and limitations; technically credible—transparent subject matter or more formal external peer review, as appropriate, of processes and source data; usable—relevance and accessibility of the information to its intended users. For the climate-informed approach, usability can be achieved by placing climate-related scenarios into appropriate spatial, temporal, and risk-based contexts; legitimate—perceived by stakeholders to conform to recognized principles, rules, or standards. Legitimacy might be achieved through existing government planning processes with the opportunity for public comment and engagement; and flexible—scientific, engineering, and planning practices to address climate change-related information are evolving. To respond, agencies need to adapt and continuously update their approaches consistent with agency guidelines and principles. Also under Appendix H, actionable science consists of theories, data, analyses, models, projections, scenarios, and tools that are: relevant to the decision under consideration; reliable in terms of its scientific or engineering basis and appropriate level of peer review; understandable to those making the decision; supportive of decisions across wide spatial, temporal, and organizational ranges, including those of time-sensitive operational and capital investment decision-making; and co-produced by scientists, practitioners, and decision-makers, and meet the needs of and are readily accessible by stakeholders.

See

Appendix H at pgs. 5-6.

EP02OC23.002

Selection Between the FFRMS Approaches.

In selecting between the FFRMS approaches, FEMA sought to retain sufficient flexibility to account for updates to the FFRMS and yet also implement a framework that is sufficiently standardized to be easily understood and consistently applied to ensure an appropriate level of resilience without overbuilding.

These considerations have led FEMA to propose a policy that considers the type and criticality of the action involved, the availability and actionability of the data, and equity concerns, as further explained in the current proposed supplementary policy.

For purposes of this rulemaking, overbuilding and underbuilding refers to building or protecting structures and facilities to a higher or lower resilience standard than necessary to reduce flood risks.

FEMA proposes to implement the FFRMS by adopting the flexible framework detailed in the Revised Guidelines. Under this proposal, FEMA would provide additional guidance that addresses which approach FEMA would use for different types of actions and how FEMA would tailor its application of the various approaches depending on

the best available information to inform current and future flood risk, the type and criticality of the action, and equity. FEMA's 2016 supplementary policy proposed to use the FVA to establish the elevation and associated floodplain for non-critical actions. For critical actions, FEMA's 2016 supplementary policy proposed to allow the use of the FVA or the CISA, but only if the elevation established under the CISA was higher than the elevation established under the FVA.

81 FR 56558.

For the reasons stated below, FEMA's current proposed supplementary policy proposes a different approach. Specifically, FEMA's current proposed supplementary policy prefers the CISA floodplain where data is available and actionable. Where CISA data is not available and actionable, the supplementary policy selects Where CISA data is not available and actionable, the supplementary policy selects either the FVA or 0.2PFA to establish the floodplain. Specifically, for critical actions, the supplementary policy requires use of the higher of the FVA+3 or 0.2PFA. For non-critical actions, the supplementary policy requires the use of the lower of the FVA+2 or 0.2PFA. For actions not subject to the FFRMS, the floodplain would continue to be the 0.2 percent annual chance floodplain for critical actions and the 1 percent annual chance floodplain for non-critical actions. Other FEMA requirements to follow consensus codes and standards

and to meet NFIP and State, local, Tribal, and territorial standards will continue to apply.

In doing so, FEMA believes the 8-step process with FFRMS implementation will result in a level of resiliency that is effective for the action and also equitable for the community by utilizing available and actionable scientific data to tailor the future flooding risk to the action.

See

“Consensus-Based Codes, Specifications, and Standards for Public Assistance (Version 2)” found at

https://www.fema.gov/assistance/public/policy-guidance-fact-sheets/section-1235b-consensus-based-codes-and-standards

(last accessed July 12, 2023).

See

44 CFR part 60.3 for the NFIP minimum floodplain management standards.

The FVA Considered.

FEMA considered using the FVA as the default approach for both critical and non-critical actions subject to the FFRMS. A choice to use the FVA as a default would reflect the practical need for standardization in the earlier stages of implementation. The FVA elevation is computed using the base flood elevation, and FEMA may use the same sequence it has followed to determine the base flood elevation for the purposes of establishing the FVA elevation. This would still allow for the use of widely available FEMA regulatory products, such as Flood Insurance Rate Maps and Flood Insurance Study Reports.

By following the same sequence that FEMA has historically used for determining the appropriate elevation and utilizing known mapping products, FEMA staff would need relatively minimal additional training to be able to use these products to determine the horizontal extent of the FVA floodplain. In addition, the familiarity of the process and products to be used in most projects would benefit stakeholders by providing a consistent methodology which stakeholders would similarly be able to use to determine where FEMA will require application of the FFRMS. Additionally requiring the use of the FVA as the minimum elevation for critical actions would be consistent with FEMA's policy to encourage communities to adopt higher standards, including freeboard standards, than the minimum floodplain management criteria under the NFIP.

Generally, adoption of a freeboard tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrological effect of urbanization of the watershed.

Consistent with FEMA's Community Rating System (CRS) policy, 1,380 of the 1,740 CRS-participating localities have adopted freeboard requirements that exceed current Federal standards within 50 states.

FEMA supports that adoption by requiring that all of its projects are consistent with more restrictive Federal, State, or local floodplain management standards.

FEMA Flood Map Products. See

https://www.fema.gov/flood-maps/products-tools/products.

(Last accessed July 27, 2023).

See

44 CFR 60.1(d).

See

44 CFR 59.1.

See https://www.fema.gov/floodplain-management/community-rating-system#participating

(last accessed July 12, 2023).

See

44 CFR 9.11(d)(6).

The FVA, however, is not without challenges. First, while application of the FVA relies on data that is more available and readily accessible, it is not always the most suitable information to inform flood risk. Although FVA uses a fixed freeboard value across the nation, the FVA results in widely varying impacts to the current and future risk to the project. In some locations, applying the FVA+3 reduces the chance of being impacted by current flooding conditions by 2 times, while in other cases applying the FVA might reduce such chances by 10 times or more.

This wide variation in risk reduction using the FVA approach may result in underbuilding or overbuilding in some areas. Without data narrowly tailored to the location's specific risks, the FVA may result in building or protecting structures and facilities to a higher or lower resilience standard than necessary to reduce flood risks. This potential for overbuilding or underbuilding may raise equity concerns for underserved communities seeking to rebound quickly and effectively from a disaster. Those communities may struggle to pay the additional costs required to build to a higher resilience standard than might be necessary if FEMA were to instead apply the CISA, thus unnecessarily delaying disaster recovery.

Alternatively, communities may be more vulnerable to future flooding and therefore repair expenses where building to a lower resilience standard under the FVA than if FEMA were to apply CISA.

See

National Research Council, “Risk Analysis and Uncertainty in Flood Damage Reduction Studies,” Table 7-1 pg. 144, found at

https://nap.nationalacademies.org/catalog/9971/risk-analysis-and-uncertainty-in-flood-damage-reduction-studies

(last accessed July 12, 2023). Note that when downloaded in portable document format, table 7-1 is cut off. When viewed in the web version, Column 14 provides the return period for a 3 foot freeboard value.

See

Jeremy Martinich, James Neumann, Lindsay, Ludwig, and Lesley Jantarasami, “Risks of sea level rise to disadvantaged communities in the United States”

Mitig Adapt Strateg Glob Change

(2013) 18:169-185, found at

https://link.springer.com/article/10.1007/s11027-011-9356-0

(last accessed July 12, 2023).

The 0.2PFA Considered.

FEMA considered using the 0.2PFA, as the horizontal extent of the 0.2PFA floodplain is already mapped in some locations. Further, the 0.2PFA results in a much more consistent reduction in the chances of being impacted by a flood for projects in different areas. This is because the 0.2PFA floodplain and elevation are calculated to have the same probability of occurrence everywhere.

The 0.2PFA may result in a higher elevation than the FVA in some circumstances and lower elevations in other areas. FEMA is challenged by the limited national availability of information on the 0.2 percent annual chance flood elevation and the additional costs associated with producing this information where it is not yet available. While most areas of the country have 1 percent annual chance floodplain information and the necessary topographical information to determine the horizontal extent under

the FVA, far fewer are mapped with 0.2 percent annual chance floodplain information. This is because although all FEMA-mapped flood zones have either detailed or approximate 1 percent annual chance floodplain boundaries, FEMA estimates that only 20 percent of effective flood zones have detailed floodplain boundaries of the 0.2 percent annual chance floodplain.

There is some additional 0.2 percent annual chance floodplain mapping coverage available from FEMA products that are in preliminary or draft stages, and from other Federal, state, and local agencies. Data showing the boundaries and elevations for the 0.2 percent annual chance flood, however, is far less available than information for the 1 percent annual chance flood. Additionally, in coastal areas, the FFRMS requires Federal agencies to use the FVA as the minimum elevation when not using the CISA, if the 0.2 percent annual chance flood information depicted on FEMA's regulatory products considers storm-surge hazards but not wave action, and wave action data cannot be obtained from other sources.

This requirement is essential to ensure the effectiveness of this resilience standard. Only some areas have 0.2PFA with wave action information. Finally, there could also be equity concerns related to underbuilding or overbuilding to this standard, as again communities seeking to rebound quickly and effectively from a disaster may struggle to pay the additional costs required to build to a higher resilience standard than might be necessary if FEMA were to instead apply the CISA, thus unnecessarily delaying disaster recovery. Given the challenges with information availability, costs, and certainty for stakeholders, FEMA is not proposing the 0.2PFA for all actions subject to the FFRMS. However, the consistency provided by the 0.2PFA when the data is available provides a check against the variability of the FVA approach, so FEMA plans to use the two approaches together.

See

Guidelines at pg. 6.

FEMA riverine flood hazard data inventory information comes from the Coordinated Needs Management Strategy dataset.

See

Revised Guidelines at 57.

The CISA Considered.

Consistent with the Revised Guidelines, FEMA is proposing the use of CISA as the preferred approach where data is available and actionable for both critical and non-critical actions as CISA uses a more site-specific approach to predict flood risk based on future conditions. FEMA believes CISA has the potential to be the best and most well-informed approach to building resilience in an equitable manner and ensuring a reduction in disaster suffering. While all three approaches consider the effects of changing conditions on current and future flood risk, CISA is the only approach that uses climate science data to determine the appropriate floodplain for actions subject to the FFRMS. The FVA is a standard of protection set within a margin of error and can result in underbuilding or overbuilding because the data is not tailored to consider the flood risk in a specific location. The 0.2PFA provides a consistent reduction in flood risk but the data is often not available. Neither approach uses climate science to determine future flood risk for specific locations. CISA is the only approach that ensures projects are designed to meet current and future flood risks unique to the location and thus ensures the best overall resilience, cost effectiveness, and equity. CISA provides a forward-looking assessment of flood risk based on likely or potential climate change scenarios, regional climate factors, and an advanced scientific understanding of these effects. CISA allows FEMA to make this assessment specific to the communities involved and to tailor the assessment to their specific resilience needs, factoring in cost-effectiveness of resilience efforts and equity. As explained above, the FVA approach presents a uniform solution that is not sufficiently tailored to meet specific community needs and lacks full consideration of future conditions. With a mandate to expand the floodplain and elevate to a specific height without additional considerations, the FVA approach can result in a community's project being built to a higher or lower standard than necessary for the community's intended use and result in additional expense to the community. Similarly, the 0.2PFA may result in a community's project being built to a higher or lower standard than necessary for the community's intended use and result in additional expense to the community because the 0.2PFA lacks full consideration of future conditions. Where available, CISA presents the best data available on current and future conditions to help FEMA work with communities to implement resilient, cost-effective projects.

For critical actions, FEMA is proposing to utilize elevations determined by applying CISA so long as that elevation is at least the elevation of the 0.2PFA. Under this proposal, FEMA could choose to allow use of the CISA, even if the resulting elevation is lower than the application of the FVA. This approach would give FEMA and its recipients more flexibility in implementing the standard, would enable FEMA and its recipients to build to an elevation based on the best available science taking criticality into account, would ensure adequate protection in those areas that are projected to experience future flood elevations beyond those identified using the FVA or 0.2PFA, and would provide a pathway to relief for those areas that experience declining flood risks.

While FEMA believes that the average flood risk will generally continue to increase nationwide due to changing conditions, there is considerable uncertainty in projecting flood risk at more granular levels. Some areas may experience declines in flood risk due to reduced rainfall or other unpredictable changes to the floodplain.

Similarly, for non-critical actions, FEMA is proposing to utilize elevations determined by applying CISA so long as that elevation is at least the elevation of the 1 percent annual chance flood elevation. Combined, these options would balance the objectives that applicants are building in an equitable manner to the most protective level based on the best available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science without overbuilding and would eliminate the potential for a scenario where an applicant was allowed to build to a lower elevation than previously required for critical and non-critical actions under FEMA's current implementation of Executive Order 11988.

See

44 CFR 9.7(a)(1) detailing the current floodplain for critical and non-critical actions.

As explained above, FEMA understands that the availability and actionability of data is a key factor in completing this analysis in a consistent, equitable manner. Since the introduction of the CISA in 2015, additional data has become available to better inform CISA.

FEMA believes data availability and actionability will continue to advance for CISA in the future. However, as actionable climate data are not currently available for all locations, FEMA is proposing the FVA and 0.2PFA alternatives in the absence of actionable CISA data.

See

Fourth National Climate Assessment, Volume II, found at

https://nca2018.globalchange.gov

(last accessed July 12, 2023) and the “Federal Flood Risk Management Standard Climate-Informed Science Approach (CISA) State of the Science Report,” found at

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

(last accessed Aug. 14, 2023).

For coastal floodplains, one of the primary considerations associated with CISA is determining what the projected

future sea level rise will be for the area in which the project will be completed. There are currently multiple interagency reports and agency tools that provide scenario-based projections of sea level rise for coastal floodplains.

Sea level rise projections are just one potential factor in a climate-informed science approach. FEMA expects that more data will be developed supporting broader-based application of CISA as agencies implement the FFRMS and that this data will be considered and incorporated into future updates of the FFRMS and FEMA's implementation thereof. FEMA requests comment on the availability of actionable, planning-scale and/or project-scale climate data with respect to coastal and riverine floodplains.

See generally

“Interagency Sea Level Rise Scenario Tool” found at

https://sealevel.nasa.gov/data_tools/18

(last accessed July 12, 2023), “2022 Sea Level Rise Technical Report” found at

https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-tech-report.html

(last accessed July 12, 2023), “Global and Regional Sea Level Rise Scenarios for the United States” found at

https://aambpublicoceanservice.blob.core.windows.net/oceanserviceprod/hazards/sealevelrise/noaa-nos-techrpt01-global-regional-SLR-scenarios-US.pdf

(last accessed July 12, 2023), “Sea Level Rise Viewer,” found at

https://coast.noaa.gov/digitalcoast/tools/slr.html

(last accessed July 12, 2023).

In addition to the data challenges, there are a number of factors in deciding how to apply the CISA that might result in a decision-making process that could unnecessarily delay recovery in the wake of a disaster event for non-critical actions. The Revised Guidelines recommend that the CISA methodology account for project-specific factors such as the criticality of the action, the risk to which the action will be exposed, the anticipated level of investment, and the lifecycle of the action.

For example, an applicant might consider a construction project that is in a coastal floodplain and find that there are multiple projections for what the sea level rise may be in 50 years. The most aggressive projection might indicate that the project should be elevated 10 feet above the base flood elevation for a critical action. However, the applicant may determine that this project is not intended to be functional for 50 years, the action is not critical, and justify a lesser projection based on criticality and expected lifespan. FEMA anticipates these types of decisions may be more standardized and accessible with a suite of Federal tools under development to assist FEMA and stakeholders in establishing the CISA floodplain. Further, FEMA's proposed approach focuses on leveraging the best available data to inform flood risk, generally allowing communities that have actionable data specific to their locations to utilize that information in the 8-step process. FEMA requests comment regarding how FEMA could implement the CISA using a publicly accessible, standardized, predictable, flexible, and cost-effective methodology. FEMA also seeks comment on whether the agency should accept locally available CISA data and methods.

See

Revised Guidelines at 55.

Other Options Considered.

FEMA also considered whether it should alter its proposal for preferring use of the CISA in relation to the FVA (or 0.2PFA). FEMA specifically welcomes comment on each of the potential alternatives outlined below. FEMA could choose a more protective approach in which it would determine the elevations established under CISA, FVA, and the 0.2PFA for critical actions and only allow the applicant to use the highest of the three elevations. This approach would ensure that applicants were protecting these critical assets to the highest protective level. However, as explained above, this approach may lead to overbuilding and thus not be the most cost-effective or equitable approach. FEMA believes that its proposed approach is sufficiently protective of critical action and would be less expensive and complex to administer and implement than the alternative approach described above as the alternative approach would require a determination of elevation under all three approaches before a project could proceed; nonetheless, FEMA welcomes comment on this alternative approach.

Alternatively, FEMA could choose to require use of the highest standard for all actions, regardless of criticality. As explained above, while this approach would ensure that applicants were building all actions to the most protective level, this approach may lead to overbuilding and thus not be the most cost-effective, equitable approach particularly for non-critical actions. FEMA believes that its proposed approach is sufficiently protective of all actions and would be less expensive and complex to administer and implement than the alternative approach described above as this alternative approach would always require a determination of elevation under all three approaches before a project could proceed; nonetheless, FEMA welcomes comment on this alternative approach.

FEMA also considered requiring the use of the 0.2PFA when CISA is not available for non-critical actions rather than the lower of the 0.2PFA or FVA. As explained above, FEMA notes the challenges with the limited national availability of information on the 0.2 percent annual chance flood elevation and the additional costs associated with producing this information when not yet available. Additionally, in coastal areas, the FFRMS requires Federal agencies to use the FVA as the minimum elevation when not using the CISA, if the 0.2 percent annual chance flood information depicted on FEMA's regulatory products considers storm-surge hazards but not wave action, and wave action data cannot be obtained from other sources. This requirement is essential to ensure the effectiveness of this resilience standard. Only some areas have 0.2PFA with wave action information. Finally, there could also be equity concerns related to underbuilding or overbuilding to this standard, as again communities seeking to rebound quickly and effectively from a disaster may struggle to pay the additional costs required to build to a higher resilience standard than might be necessary if FEMA were to instead apply the CISA, thus unnecessarily delaying disaster recovery. Alternatively, communities may be more vulnerable to future flooding and therefore repair expenses where building to a lower resilience standard under the FVA than if FEMA were to apply CISA. Given the challenges with information availability and costs, FEMA is not proposing the 0.2PFA as the exclusive alternative for non-critical actions when CISA is not available and actionable; nonetheless, FEMA welcomes comment on this alternative approach.

Based on the foregoing, FEMA proposes to focus on the best available and actionable information to inform current and future flood risk, the type and criticality of the action, and equity when determining the approach to utilize for the floodplain determination. Where available and actionable, FEMA proposes to leverage the CISA to establish the floodplain for both critical and non-critical actions. Where the CISA is not available and actionable, the agency proposes to use the lower of the FVA or 0.2PFA to establish the floodplain for non-critical actions and the higher of the FVA floodplain or the 0.2PFA for critical actions. Where the 0.2PFA is not available, or where wave action is not addressed in the 0.2PFA, the FVA is proposed for critical actions. This proposal balances flexibility with standardization, is consistent with FEMA's encouragement to communities to adopt more resilient floodplain management standards and reflects the priority that FEMA places on ensuring adequate planning for critical actions

while balancing cost and equity considerations.

Requiring the use of the higher of the FVA floodplain or the 0.2PFA floodplain for critical actions where CISA is not available and actionable is consistent with the Revised Guidelines' direction that agencies use higher standards for actions that they determine to be critical actions.

The continued emphasis on the importance of making critical actions more resilient demonstrates an ongoing concern that the risks of flooding for many critical actions cannot be minimized without higher standards. The criticality of the action makes the risk of flooding too great, and a higher resilience standard is appropriate to best reduce that risk.

See

Guidelines at pg. 4.

The Revised Guidelines further recognize the importance of consideration of impacts to vulnerable populations, including those at risk to impacts of flooding due to their location or because they are overburdened, lack resources, or have less access to resources.

Consistent with these concerns, FEMA's proposed supplementary policy would require the lower of the FVA floodplain or the 0.2 PFA floodplain for non-critical actions. FEMA believes the lower approach would help reduce the burden on communities by addressing concerns related to overbuilding, particularly in underserved communities seeking to rebound quickly and effectively from a disaster. Selecting the lower approach for non-critical actions will still result in a higher level of resilience than the current requirements under part 9 while also taking equity and cost-effectiveness considerations into account.

See

Guidelines at pg. 67.

In addition to seeking comments on FEMA's proposed approach to implementation generally, FEMA specifically seeks public comments on the impact of the proposed elevation requirement

on the accessibility of covered facilities under the Fair Housing Act, the Americans with Disabilities Act (ADA), the Architectural Barriers Act (ABA), and Section 504 of the Rehabilitation Act of 1973. Elevating buildings as a flood damage mitigation strategy could have a negative impact on affected communities' disabled and elderly populations if appropriate accommodations are not made. Also, even if the homes of people with disabilities are elevated and made accessible, other elevated single- and multi-family housing stock in the community may become inaccessible if appropriate accommodations are not made. It is crucial for community sustainability and integration of people with disabilities that buildings impacted by FFRMS requirements be made to comply with all accessibility requirements.

Floodproofing of areas below the BFE in residential buildings is generally not permitted under the NFIP unless communities have been granted an exception to permit floodproofed basements.

See

44 CFR 60.3. The NFIP restriction against floodproofing of residential structures reflects FEMA's longstanding policy position that residential structures require a higher standard of resilience due to the increased potential for loss of human life. Floodproofing is also not recommended for residential structures under other FEMA programs.

See

Hazard Mitigation Assistance Technical Review Job Aid Series “Dry Floodproofing Technical Review,” at pg. 7 found at

https://www.fema.gov/sites/default/files/documents/fema_technical-job-aid-dry-floodproofing.pdf

(last accessed July 12, 2023) (referencing ASCE24—Flood Resistant Design and Construction Section 6.2, which limits the use of dry floodproofing to non-residential structures and non-residential areas of mixed-use structures located outside of High-Risk Flood Hazard Areas, Coastal High Hazard Areas and Coastal A Zones). Consistent with the NFIP regulations and other FEMA policies, the agency generally does not fund floodproofing of residential structures as a flood minimization measure to meet current 44 CFR 9.11 requirements.

In light of the potential community impact of elevating housing and other buildings, along with the challenges associated with the traditional options for making elevated buildings accessible (

i.e.,

elevators, lifts, and ramps), FEMA invites comments on strategies it could employ to ensure accessibility requirements are met for properties that would be impacted by this rulemaking. Additionally, FEMA invites comments on the cost and benefits of such strategies, including data that supports the costs and benefits.

Determining the Corresponding Horizontal Extent of the FFRMS Floodplain.

To make the floodplain determination and establish the proper resilience standard under each approach, FEMA intends to leverage its existing processes in each of its grant programs for ensuring compliance with Executive Order 11988, as amended. Although the specifics of the processes may vary somewhat from program to program, FEMA generally uses the following steps. During the initial stages of project development, FEMA informs applicants of all applicable Federal, State, and local requirements which might apply to their projects to include Executive Order 11988 and the 8-step process. Once applicants have identified potential projects, FEMA works with them to assess the proposed project location and determine whether it is in or affects the floodplain and whether it is necessary to apply the 8-step process. FEMA is available to assist applicants with the 8-step process and reviews the project application to ensure that the project scope of work is in compliance with Executive Order 11988 requirements. FEMA will continue to perform these steps in its implementation of the FFRMS and Revised Guidelines. Once FEMA has made the determination that an action is subject to the FFRMS that requires a determination on which FFRMS approach to apply, the agency must then decide where the floodplain lies. FEMA, in conjunction with other Federal agencies, will work to maximize the availability of data showing the horizontal extent of the expanded horizontal floodplain that can be used for the CISA, the FVA, and the 0.2PFA for use on FFRMS following the approach detailed in § 9.7 below. Determination of the FFRMS floodplain will generally require data on current conditions and floodplains, future sea level rise or other changes expected to impact future flood conditions, and ground elevations. All of these data are relevant to determining additional areas that may be inundated by increased flooding in the future. FEMA's approach to determining the floodplain will also utilize available, actionable non-FEMA data from other sources, including other Federal agencies, State, Tribal, territorial, and local governments.

Establishing the FFRMS Resilience Standard Under Each Approach.

FFRMS is a resilience standard requiring Federal investments to be more resilient against future flood conditions. FFRMS provides methods for determining a flood elevation to use in minimizing current and future flood risk for many actions in or affecting the floodplain, particularly for elevation of structures. However, other types of projects, including non-structure facilities, cannot reasonably be elevated above the FFRMS flood elevation and must achieve resilience through other minimization measures.

For example, see

Low-Water Crossings: Geomorphic, Biological, and Engineering Design Considerations

https://www.fs.usda.gov/t-d/pubs/pdf/LowWaterCrossings/Lo_pdf/1_Intro.pdf

(last accessed July 12, 2023) and Best Practice: Construction design saves money, prevents future damage at

https://www.fema.gov/blog/best-practice-construction-design-saves-money-prevents-future-damage

damage (last accessed July 12, 2023).

The CISA is established using the best available, actionable climate-informed science. The Revised Guidelines provide guidance to agencies on the application of the CISA approach in coastal and riverine areas.

In particular, FEMA will use Appendix H of the Revised Guidelines titled

“Climate-Informed Science Approach and Resources” to guide its decision-making.

See

the Revised Guidelines at Appendix H “Climate-Informed Science Approach and Resources.”

FEMA recognizes that the CISA is a developing process and that there is uncertainty in the considerations and factors that will come up during an CISA analysis. As such, FEMA is not able to develop an exhaustive set of regulatory criteria for determining whether a given methodology is appropriate. However, FEMA recognizes that regulatory transparency reduces uncertainty for its recipients, and it will provide further guidance and information in the future, as appropriate, as the agency's experience in implementing CISA grows.

Appendix H of the Revised Guidelines provides the following criteria to define the CISA, which FEMA will consider when developing further guidance and information: (1) Uses existing sound science and engineering methods (

e.g.,

hydrologic and hydraulic analysis and methodologies) as have historically been used to implement Executive Order 11988, but supplemented with best available climate-related scientific information when appropriate (depending on the agency-specific procedures and type of federal action); (2) is consistent with the climate science and related information found in the latest National Climate Assessment report or other best-available, actionable science; (3) combines information from different disciplines (

e.g.,

new perspectives from the atmospheric sciences, oceanographic sciences, coastal sciences, and hydrologic sciences in the context of climate change) in addition to traditional science and engineering approaches; and, (4) includes impacts from projected land cover and land use changes (which may alter hydrology due to increased impervious surface), long-term coastal and/or riverine erosion, and vertical land movement (for determining local changes to sea level) expected over the lifecycle of the action.

The FFRMS and Revised Guidelines describe the FVA elevation as the addition of 2 or 3 feet to the 1 percent annual chance flood elevation. FEMA would leverage the process described in proposed § 9.7(c) to search for the best available flood hazard information to establish the 1 percent annual chance flood elevation. This process recognizes that information on flood hazards at proposed sites may range from detailed data obtained from FEMA regulatory products to information which approximates the geographic area of the floodplain, to areas with no information. Where FEMA has issued a regulatory product, FEMA could obtain the flood elevation from the regulatory product. FEMA may also seek detailed information from the list of sources in proposed § 9.7(c)(3)(i)-(x).

The 0.2PFA is the elevation of the 0.2 percent annual chance flood. Where FEMA proposes to use this approach, the agency would follow the same process to establish the 0.2 percent annual chance flood elevation as it would to establish the 1 percent annual chance flood elevation, utilizing the best available information. FEMA would first rely on the 0.2 percent annual chance flood elevation from the best available information, including information reported in a FEMA regulatory product, then seek information from additional sources, before finally seeking the assistance of an engineer.

IV. Discussion of the Proposed Rule

As noted above, this proposed rule would implement Executive Order 11988, as amended, the FFRMS, and the Revised Guidelines as part of FEMA's floodplain management regulations while also updating FEMA's 8-step process. Below, we provide a brief summary of a number of the major provisions of the proposed rule, followed by a section-by-section description of these and other changes.

Major Provisions

Severability

FEMA proposes to amend § 9.3 to remove the authorities section as redundant, and to replace it with a severability section. In the event that any portion of the proposed rule is declared invalid, FEMA intends that the remaining provisions of 44 CFR part 9 be severable. A severability clause is a standard legal provision. It indicates FEMA's intent that if a court finds that a specific provision of a rule is unlawful, the court should allow the remainder of the rule to survive. Those provisions that are unaffected by a legal ruling can be implemented by an agency without requiring a new round of rulemaking simply to promulgate provisions that are not subject to a court ruling.

Conforming Changes to Definitions

FEMA proposes to amend § 9.4 to reflect the new definitions required by the FFRMS and Revised Guidelines while also updating other definitions to clarify terms and leverage common usage that has evolved since the regulation was issued. As noted above, the most significant definitional change introduced by the FFRMS is the change to the meaning of “floodplain.” As discussed in more detail below, in order to harmonize this change in § 9.4 FEMA proposes to revise a number of existing definitions and remove other definitions. In addition, FEMA proposes to revise the remaining sections of 44 CFR part 9 that refer generally to the floodplain or refer specifically to the base (or 100-year) floodplain or the 500-year floodplain, for clarity.

Distinction Between “Actions Subject to the FFRMS” and Other FEMA Actions

As noted above, the first Step in the 8-step process is to determine whether the proposed action is in the floodplain. Because Executive Order 11988, as amended, and the FFRMS revise the definition of the “floodplain” that must be used for “Federally funded projects,” FEMA proposes to revise the first Step to require FEMA to first determine whether the proposed action falls within the definition of an “action subject to the FFRMS.” Under the proposed rule, if FEMA determines that the action is a Federally Funded Project,

i.e.,

if FEMA determines that the action uses FEMA funds for new construction, substantial improvement, or to address substantial damage to a structure or facility, the FFRMS floodplain applies. If, on the other hand, FEMA determines that the action does not fall under the definition of an action subject to the FFRMS and if the action is considered non-critical, the 1 percent annual chance floodplain applies. If the action is considered critical, the 0.2 percent annual chance floodplain applies.

Emphasis on Nature-Based Approaches

Executive Order 11988, as amended, requires that agencies use, where possible, natural systems, ecosystem processes, and nature-based approaches in the development of alternatives for Federal actions in the floodplain. FEMA proposes to incorporate this requirement into § 9.9, which addresses the requirement to consider practicable alternatives when determining whether to locate an action in the floodplain. This requirement applies regardless of whether the proposed action is a FEMA Federally Funded Project. To further explain this requirement, FEMA proposes to add a definition of “nature-based approaches,” meaning features designed to mimic natural processes and provide specific services such as reducing flood risk and/or improving water quality. FEMA also proposes to add a definition of “natural features” meaning the characteristics of a particular environment that are created by physical, geological, biological, and chemical processes and exist in dynamic equilibrium.

The use of natural features and nature-based approaches in consideration of alternatives within floodplains and wetlands is consistent with the agency's priorities to promote the use of nonstructural flood protection methods, minimize the impact of its actions on the floodplain, and restore and preserve the natural and beneficial values served by floodplains as well as preserve and enhance the natural values of wetlands. In applying the 8-step process to its actions, FEMA has integrated factors into its impact analysis and minimization measures (Step 4 and Step 5) to identify those opportunities for beneficial floodplain and wetland values, to include natural values related factors that prioritize water resource values, living resource values, and agricultural, aquacultural, and forestry resource values. Applying natural features or nature-based approaches as alternatives furthers the goals in 44 CFR part 9 and allows for FEMA to further encourage those actions that increase the natural and beneficial function of the floodplain.

Section-by-Section Analysis

A. Authority Citation

FEMA proposes to revise the authorities section to reflect appropriate statutory and other authorities underlying the regulation.

B. Section 9.1—Purpose of Part

FEMA proposes to add references to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Environmental Policy Act of 1969, and other relevant statutory authorities, and to add “as amended” to reflect amendments made to Executive Order 11988.

C. Section 9.2—Policy

FEMA proposes to add language to paragraph (b) to reflect the policy that the United States must improve the resilience of communities and Federal assets against the impacts of flooding based on the best-available and actionable science. This statement of policy is complementary to the longstanding goals of Executive Order 11988 to reduce the risk of flood loss but reflects an updated Federal policy of resilience and risk reduction that takes the effects of changing conditions into account. FEMA also proposes to restructure paragraph (b)(2) by adding §§ 9.2(c) and 9.2(d). In § 9.2(c), FEMA proposes edits for clarity, while in § 9.2(d), FEMA proposes to reorder the agency's actions to prioritize minimizing the impact of floods on human health, safety, and welfare in this part.

D. Section 9.3—Severability

In Section 9.3, FEMA proposes to remove the authorities as redundant because the authorities are cited at the beginning of Part 9. Instead, FEMA proposes to include a severability section.

FEMA believes that its authority to require an 8-step decision making process and incorporate the FFRMS into it is well-supported in law and policy and should be upheld in any legal challenge. However, in the event that any portion of the proposed rule is declared invalid, FEMA intends that the various provisions of 44 CFR part 9 be severable. The provisions are not so interconnected that the rule's efficacy depends on every one of them remaining in place—implementation of the different provisions is sufficiently distinct that FEMA's aim of updating the 8-step process and incorporating the FFRMS would still be furthered by maintaining the other provisions. For example, if a court were to find unlawful FEMA's inclusion of the FFRMS approaches in § 9.7(c), FEMA intends to retain the inclusion of consideration of nature-based approaches in the appropriate steps of the 8-step decision making process and all other amendments to the 44 CFR part 9 not affected by the court decision. Similarly, if a court were to find unlawful FEMA's chosen approach in the proposed policy, FEMA intends to retain the regulatory changes implementing the FFRMS.

E. Section 9.4—Definitions

In Section 9.4, FEMA proposes to add terms for “0.2 Percent Annual Chance Flood Elevation,” “0.2 Percent Annual Chance Floodplain,” “1 Percent Annual Chance Flood Elevation,” “1 Percent Annual Chance Floodplain,” “Action Subject to the FFRMS,” “Base Flood Elevation,” “Federal Flood Risk Management Standard (FFRMS),” “Federal Flood Risk Management Standard Floodplain,” “Federally Funded Project,” “FEMA Resilience,” “National Security,” “Nature-Based Approaches,” “Natural and Beneficial Values of Floodplains and Wetlands,” “Natural Features,” and “Support of Floodplain and Wetland Development.” FEMA proposes to remove the definitions of “Base Flood,” “Base Floodplain,” “Five Hundred Year Floodplain,” “Flood Fringe,” “Flood Hazard Boundary Map,” “Flood Insurance Rate Map,” “Flood Insurance Study,” “Mitigation Directorate,” “Natural Values of Floodplains and Wetlands”, “New Construction in Wetlands,” and “Support.” Lastly, FEMA proposes to revise the definitions of “Coastal High Hazard Area,” “Critical Action,” “Emergency Action,” “Flood,” “Floodplain,” “Functionally Dependent Use,” “Mitigation,” “New Construction,” “Orders,” “Practicable,” “Regulatory Floodway,” “Restore,” “Structures,” “Substantial Improvement,” and “Wetlands.”

0.2 Percent Annual Chance Flood Elevation.

FEMA proposes to define the term “0.2 percent annual chance flood elevation” to mean the elevation to which floodwater is anticipated to rise during the 0.2 percent annual chance flood (also known as the 500-year flood). FEMA generally proposes to use the term “0.2 percent annual chance flood” and discontinue using that term interchangeably with the term “500-year flood.” The term “500-year flood” can cause confusion as it could be interpreted to mean that the area will only flood once every 500 years, instead of reflecting its true meaning, which is the annual probability of flooding in the area. FEMA is proposing to update other definitions that reference the term “500-year flood” and related terms where appropriate to ensure an effective long-term transition away from this terminology.

0.2 Percent Annual Chance Floodplain.

FEMA proposes to define the term “0.2 percent annual chance floodplain” to mean the area subject to flooding by the 0.2 percent annual chance flood (also known as the 500-year floodplain).

1 Percent Annual Chance Flood Elevation.

FEMA proposes to refer to the definition of “Base Flood Elevation” to define this term to help transition to this terminology going forward and more accurately reflect the flood probability associated with that elevation.

1 Percent Annual Chance Floodplain.

FEMA proposes to define the term “1 percent annual chance floodplain” to mean the area subject to flooding by the 1 percent annual chance flood (also known as the 100-year floodplain or base floodplain). This definition would describe the minimum area that FEMA looks at when it determines whether an action will take place in a floodplain under this part.

Action.

FEMA proposes to remove the word “action” from the definition of “Action” because including the term being defined in the definition creates confusion and redundancy.

See

Office of the Federal Register, Writing Resources for Federal Agencies, Regulatory Drafting Guide, Definitions found at

https://

www.archives.gov/federal-register/write/legal-docs/definitions.html#;:~:text=If%20a%20term%20is%20used%20only%20once%20or,term%20being%20defined%20as%20part%20of%20the%20definition.

(last accessed July 12, 2023).

Actions Affecting or Affected by Floodplains or Wetlands.

FEMA proposes edits to these definitions consistent with formatting requirements.

Action Subject to the FFRMS.

FEMA proposes to define an action subject to the FFRMS as an action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility. This term would define those actions subject to the FFRMS listed in the Revised Guidelines as a “Federally Funded Project” by narrowing the term to apply only to actions that use FEMA funds for these specific activities.

Base Flood.

FEMA proposes to remove the definition of the “base flood” as FEMA proposes to incorporate it into the definition of “flood or flooding.”

Base Floodplain.

FEMA also proposes to remove the definition of “base floodplain” as FEMA proses to incorporate it into the definition of “1 percent annual chance floodplain.”

Base Flood Elevation.

FEMA proposes to define the term “base flood elevation” to mean the elevation to which floodwater is anticipated to rise during the 1 percent annual chance flood (also known as the base or 100-year flood). The terms “base flood elevation,” “1 percent annual chance flood elevation,” and “100-year flood elevation” are synonymous and are used interchangeably. FEMA proposes to incorporate the explanation from the current definition of “base flood” about how the term is used in the NFIP to indicate the minimum level of flooding to be used by a community in the community's floodplain management regulations. The elevation indicates how high to elevate a structure to protect it from the risk of flooding in a 1 percent annual chance flood.

Coastal High Hazard Area.

FEMA proposes to revise the definition of “coastal high hazard area” to mean an area of flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources. FEMA is proposing to change this definition to more closely reflect the term as used in the NFIP and avoid the use of specific mapping zones for ease of use and reference for stakeholders.

Critical Action.

FEMA proposes to revise the definition of “critical action” to mean any activity for which even a slight chance of flooding is too great. This revised definition is consistent with the definition of this term in the Orders and Revised Guidelines the agency is implementing with this rule. Additionally, FEMA proposes to remove the requirement that the minimum floodplain of concern for critical actions is the 500-year floodplain. There would no longer be a set requirement that an applicant use a particular approach to establishing the floodplain when the project is a critical action. Instead, FEMA and the applicant would utilize the floodplain established by part 9. FEMA would be required to determine whether the project meets the new definition of “action subject to the FFRMS” in § 9.4. If the project is an action subject to the FFRMS, then FEMA would establish the floodplain by using one of the approaches (which require the applicant to consider whether an action is a critical action) explained in proposed § 9.7(c). If the project is not an action subject to the FFRMS, then FEMA would use, at a minimum, the 1 percent annual chance floodplain for non-critical actions and the 0.2 percent annual chance floodplain for critical actions. FEMA further proposes to revise this definition with updated formatting.

Emergency Actions.

The current definition of “emergency actions” does not correctly cite to the appropriate sections of statutory authority. FEMA proposes to correct citations to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) and remove FEMA regulations citations.

Federal Flood Risk Management Standard (FFRMS).

FEMA proposes to add a definition of “FFRMS,” which is the Federal flood risk management standard to be incorporated into existing processes used to implement Executive Order 11988, as amended. FEMA proposes to add a definition for FFRMS because this rule proposes to implement it and therefore refers to it throughout the proposed changes to part 9.

Federal Flood Risk Management Standard (FFRMS) Floodplain.

FEMA proposes to define the “FFRMS floodplain” generally consistent with the definition in the Order and Revised Guidelines being implemented, which is the floodplain that is established using one of the approaches described in proposed § 9.7(c). The four approaches detailed in proposed § 9.7(c) include CISA, FVA, 0.2PFA, and the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS.

Federally Funded Project.

FEMA proposes to add a definition of “Federally Funded Project” to reference the definition of “action subject to the FFRMS.” FEMA is incorporating this definition for consistency with the Revised Guidelines.

Federal Insurance Administration.

FEMA proposes to remove the definition of the “Federal Insurance Administration” as it is now included in the definition of “FEMA Resilience.”

FEMA Resilience.

FEMA proposes to delete the definition of Federal Insurance Administration and the definition of Mitigation Directorate and add the definition of FEMA Resilience to reflect the current organizational structure within the agency.

Five Hundred Year Floodplain.

FEMA proposes to remove the definition of the five-hundred-year floodplain as a standalone term and designated floodplain and to instead substitute the term “0.2 percent annual chance floodplain.” The 0.2 percent annual chance floodplain is the floodplain covering an area where the chance of flood is 0.2 percent in any given year.

Flood or Flooding.

FEMA proposes to add definitions of the “0.2 Percent Annual Chance Flood,” and the “1 Percent Annual Chance Flood” to the definition of flood to incorporate all flood definitions in one location. FEMA would further clarify the use of the 500-year flood as interchangeable with the 0.2 percent annual chance flood, and the base flood or 100-year flood as interchangeable with the 1 percent annual chance flood.

Flood Fringe.

FEMA proposes to eliminate this definition as the term is no longer used in the regulatory text.

Flood Hazard Boundary Map (FHBM).

FEMA proposes to eliminate this definition as the term is no longer used in the regulatory text. FEMA offers a range of flood risk products under the NFIP and categorizes these products as “regulatory” or “non-regulatory.” Regulatory flood risk products are created subject to procedural due process requirements, contain basic flood information, and are used for official actions such as identifying properties subject to mandatory flood insurance purchase requirements, or enforcing minimum building standards for construction in a floodplain in NFIP participating communities.

Non-regulatory flood risk products are not tied to mandatory enforcement or compliance requirements for the NFIP

and expand upon basic flood hazard information. References to FEMA's regulatory products under the NFIP, such as the Flood Hazard Boundary Map, Flood Insurance Rate Map, and Flood Insurance Study are being eliminated in the proposed regulatory text to allow flexibility to encompass the full range of NFIP products (both regulatory and non-regulatory) available for use with the 8-step process. For example, the existing section 9.7(c) prescribes a sequence of steps to obtaining the floodplain, flood elevation, and other information needed. Current section 9.7(c)(i) only includes use of the FIRM, FBFM and FIS if they exist whereas 9.7(c)(ii) includes options to seek data from other sources if the available NFIP maps do not provide the necessary information. There are cases where a FIRM, FBFM, or FIS exist for the location, but do not provide the necessary information to determine the relevant floodplain and/or elevation. This section is being proposed to be rewritten to allow use of other data sources whenever the information is not available on the NFIP maps or when better information is available.

See

“Flood Risk Products: Using Flood Risk Products in Hazard Mitigation Plans,” found at

https://www.fema.gov/sites/default/files/2020-07/fema_using-flood-risk-products_guide.pdf

(last accessed July 12, 2023).

Streamlining the references to FEMA's regulatory products would also align the regulatory language with the core statutory language that authorizes FEMA to publish determinations of Special Flood Hazard Areas (SFHAs) and flood elevations.

These determinations are published in several different products. Rather than itemize and attempt to prioritize the different products, the proposed text would focus instead on whether official determinations of the SFHA or flood elevations are available.

Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105 and the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001

et seq.

Specifically, 42 U.S.C. 4101(a) states that the Administrator is authorized to consult with other Federal agencies, State or local government agencies, or contract to obtain information “so that he may identify and publish information with respect to all flood plain areas, including coastal areas located in the United States, which has special flood hazards. . . .” Further, 42 U.S.C. 4104(a) states “In establishing projected flood elevations for land use purposes with respect to any community pursuant to section 4102 of this title, the Director shall first propose such determinations by publication for comment in the

Federal Register

. . . .”

Flood Insurance Rate Map (FIRM).

FEMA proposes to eliminate this definition as the term is no longer used in the regulatory text. As explained above, references to FEMA's regulatory products are being eliminated in the proposed regulatory text to allow flexibility to encompass the full range of NFIP products available for use with the 8-step process. There are cases where a FIRM, FBFM, or FIS exist for the location, but do not provide the necessary information to determine the relevant floodplain and/or elevation. This section is being proposed to be rewritten to allow use of other data sources whenever the information is not available on the NFIP maps or when better information is available.

Flood Insurance Study (FIS).

Floodplain.

FEMA currently defines “floodplain” as the lowland and relatively flat areas adjoining inland and coastal waters including, at a minimum, that area subject to a 1 percent or greater chance of flooding in any given year. FEMA proposes to revise the definition to mean any land area that is subject to flooding to more accurately reflect the broad definition of this term. The term “floodplain” refers to geographic features with undefined boundaries and the proposed revised regulation will establish a specific floodplain through the process described in proposed § 9.7(c).

The current definition also states that wherever the term “floodplain” appears in part 9, if a critical action is involved, “floodplain” means the area subject to inundation from a flood having a 0.2 percent chance of occurring in any given year (500-year floodplain). FEMA proposes to remove this provision from the definition of floodplain because there is no longer a set requirement that an applicant use a particular approach to establishing the floodplain when there is a critical action. Instead, FEMA and the applicant must follow the sequence described in § 9.7(c) when making the floodplain determination. FEMA must determine whether the project meets the new definition of an “action subject to the FFRMS” in § 9.4. If the project is an action subject to the FFRMS, then FEMA must establish the floodplain by using one of the FFRMS approaches (which require the applicant to consider whether an action is a critical action). If the project does not meet the definition of an action subject to the FFRMS (

i.e.,

the project is not “new construction, substantial improvement, or repairs to address substantial damage to a structure or facility”), then FEMA must use, at a minimum, the 1 percent annual chance floodplain for non-critical actions and the 0.2 percent annual chance floodplain for critical actions.

FEMA proposes to add that the floodplain may be more specifically categorized as the 1 percent annual chance floodplain, the 0.2 percent annual chance floodplain, or the FFRMS floodplain (as defined above). “Floodplain” is a flexible, general term, but in establishing the correct floodplain to use, it will be necessary to determine whether the action is an action subject to the FFRMS and whether it is a critical action.

Functionally Dependent Use.

FEMA proposes to remove references to examples in this definition to reduce confusion around the definition and avoid any misinterpretation that the term's usage is limited to the current examples. FEMA plans to provide more specific, relevant examples in guidance to better assist stakeholders with particularly nuanced situations.

Mitigation.

FEMA proposes to remove the term “all” from the definition of mitigation as mitigation would be defined more broadly consistent with the requirements of the Orders and Revised Guidelines being implemented. By removing “all,” FEMA would clarify that the agency's goal, consistent with current law and Executive Orders 11988, as amended, and 11990 is to minimize the potentially adverse impacts of the proposed action to the extent possible, including consideration of practicality, rather than to take all mitigation actions.

Mitigation Directorate.

FEMA proposes to remove the definition of the “Mitigation Directorate” as it is now included in the definition of “FEMA Resilience.”

National Security.

FEMA proposes to add a definition for “national security” consistent with the definition used in the Revised Guidelines. The proposed definition would define national security as a condition that is provided by either (1) a military or defense advantage over any foreign nation or group of nations; (2) a favorable foreign relations position; or (3) a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert. Incorporating this definition would help stakeholders better understand the 8-

step process and the actions to which each Step applies.

Nature-Based Approaches.

FEMA proposes to add a definition of “nature-based approaches.” Executive Order 11988, as amended, now contains a provision requiring agencies consider nature-based approaches, where possible, in developing alternatives for consideration to meet the purpose of a proposed action within a floodplain or wetland and this term has not previously been defined. FEMA proposes to define nature-based approaches as the features (sometimes referred to as “green infrastructure”) designed to mimic natural processes and provide specific services such as reducing flood risk and/or improving water quality. Nature-based approaches are created by human design (in concert with and to accommodate natural processes) and generally, but not always, must be maintained in order to reliably provide the intended level of service. Nature-based approaches and nature-based solutions may include, for example, green roofs, or downspout disconnection that reroutes drainage pipes to rain barrels, cisterns, or permeable areas instead of the storm sewer. The proposed definition mirrors the language of the Revised Guidelines.

Natural and Beneficial Values of Floodplains and Wetlands.

FEMA proposes to remove the definition of “natural values of floodplains and wetlands” and add the definition of “natural and beneficial values of floodplains and wetlands” to mean the features or resources that provide environmental and societal benefits. FEMA proposes adding additional clarification that water and biological resources are often referred to as “natural functions of floodplains and wetlands” and also proposes to incorporate additional clarifying examples of water resource values, living resource values, cultural resource values, and cultivated resource values for more consistency with the Revised Guidelines and Executive Order 11988, as amended.

Natural Features.

FEMA proposes to add a definition of “natural features” to mean characteristics of a particular environment that are created by physical, geological, biological, and chemical processes and exist in dynamic equilibrium. Consistent with the Revised Guidelines, natural features are self-sustaining parts of the landscape that require little or no maintenance to continue providing their ecosystem services (functions).

New Construction.

FEMA proposes to remove the parenthetical “including the placement of a mobile home” from the definition of new construction and instead add that “new construction” includes permanent installation of temporary housing units. This change narrows the scope of FFRMS applicability to only those temporary housing units that FEMA permanently installs rather than all placements of temporary housing units. The temporary nature of initial housing unit placements generally does not provide an opportunity to improve community resilience or floodplain management long term, which is the intent of the FFRMS. Prohibiting placement of temporary housing in the FFRMS floodplain may result in the temporary housing of individuals and families many miles from their homes, which is not practicable. Finally, it would not always be feasible to elevate these units to the required flood elevation when placed for temporary housing. Given these concerns, FEMA seeks to apply the FFRMS requirements only to those temporary housing units that the agency permanently installs, becoming permanent housing solutions rather than all temporary housing units placed by the agency. FEMA further proposes to delete the current definition of “new construction in wetlands” and incorporate it into the definition of “new construction” to reduce confusion and eliminate references to specific dates that no longer apply to current and future actions subject to part 9. The application of the FFRMS is required for any action which meets the definition of an “action subject to the FFRMS.” “Action subject to the FFRMS” is defined as an action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility. If FEMA continued to define the placement of a mobile home as “new construction,” it would be required to apply the FFRMS to any placement of a temporary housing unit. As described further in the discussion of § 9.13, FEMA does not intend to require the application of the FFRMS in the placement of temporary housing units for the purpose of temporary housing.

Orders.

FEMA proposes to revise the definition of “orders” to include amendments made to Executive Order 11988.

Practicable.

FEMA proposes to revise the definition of “practicable” to update the factors considered in the practicability analysis for consistency with the existing regulatory text and the Revised Guidelines, and for clarity. Specifically, FEMA proposes to add “natural” to clarify the environmental factor. FEMA also proposes to incorporate into the definition of “practicable” references to social concerns, economic aspects, and legal constraints. These concepts are currently included in the description of practicability analysis in § 9.11. As discussed below, the “economic aspects” refers to, among other things, cost and technology factors and to add “legal constraints” and “agency authorities” to specifically reflect additional constraints on the agency's ability to act as a factor in the practicability analysis. By making these changes, FEMA would define practicability in a manner that is generally consistent with the long-standing regulatory text while incorporating updates for additional clarity and consistency with the Revised Guidelines.

Regulatory Floodway.

FEMA proposes to clarify the definition of “regulatory floodway.” FEMA proposes to eliminate the reference to a specific amount set by the NFIP and instead define the term to mean the area regulated by Federal, State, or local requirements to provide for the discharge of the base flood so that the cumulative rise in water surface is no more than a designated amount above the base flood elevation. These edits more accurately encompass situations where communities have adopted more restrictive floodway definitions than the minimum specified by the NFIP. The changes are intended to help stakeholders better understand what a regulatory floodway is and how it is determined without tying the term to a specific amount that can change under the NFIP.

Restore.

FEMA proposes to update the definition of “restore” to mean to reestablish a setting or environment in which the natural functions of the floodplain can operate. This change eliminates the redundancy of requiring the floodplain to “again” operate.

Structures.

FEMA proposes to update the definition of “structures” to require that the buildings be both walled and roofed rather than walled or roofed to be considered a “structure,” consistent with the definition of “structure” in 44 CFR Subchapter B, Insurance and Hazard Mitigation.

This change is also consistent with current FEMA practice under the NFIP which designates areas that are not both walled and roofed as facilities.

Additionally, FEMA is proposing a change from the term “mobile homes” to “temporary housing units” to reflect a range of housing units the agency may provide after a disaster while also referencing “manufactured housing” to ensure that the public

understand that temporary housing units are regulated as manufactured housing in the NFIP.

See

44 CFR 59.1.

Id.

Substantial Improvement.

FEMA proposes to update the reference to the Stafford Act because the citation is outdated in the current definition. FEMA also proposes to add a sentence stating that substantial improvement includes work to address substantial damage to a structure or facility. This change is for clarity and for consistency with part 59.

Support.

FEMA proposes to eliminate the definition of “support” and replace it with a new definition of “support of floodplain and wetland development” to further clarify the term and ensure consistency of its usage in part 9.

Support of Floodplain and Wetland Development.

FEMA proposes to define this term to mean to, directly or indirectly, encourage, allow, serve, or otherwise facilitate development in floodplains or wetlands. Development means any man-made change to improved or unimproved real estate, including but not limited to, new construction; mining; dredging; filling; grading; paving; excavation or drilling operations; or storage of equipment or materials. Direct support results from actions within floodplains or wetlands, and indirect support results from actions outside of floodplains or wetlands. By providing this clarifying definition, FEMA would help eliminate confusion regarding the use of the term “support” in the regulatory text and ensure that actions taken under part 9 are done with the intent not to support floodplain and wetland development consistent with Executive Order 11988, as amended, and Executive Order 11990.

Wetlands.

FEMA proposes minor edits for clarity and to delete references to the U.S. Fish and Wildlife Service publication in the current definition of “wetlands” as the reference is now out of date and rather generally reference the definition utilized by that agency for consistency in the future.

F. Section 9.5—Scope

FEMA proposes to add an effective date provision to this section, indicating that the revisions proposed to part 9, which implement the changes required by Executive Order 11988, as amended, the FFRMS, and Revised Guidelines, would apply to new actions for which assistance is made available pursuant to declarations under the Stafford Act that are commenced on or after the effective date of the final rule, and new actions for which assistance is made available pursuant to notices of funding opportunity that publish on or after the effective date of the final rule. This is to clarify that current part 9, including use of the 1 percent annual chance floodplain (or 0.2 percent annual chance floodplain for critical actions), would still apply to actions relating to declarations and funding opportunities issued prior to the effective date. Only new actions would be subject to revised part 9 so that the changes would not be applied to projects which have already been reviewed for compliance with Executive Order 11988 and may have incurred design expenses to meet the current floodplain management standards. Any actions associated with declarations under the Stafford Act that begin on or after the effective date of the final rule or any actions for which the notice of funding opportunity publishes on or after the effective date of the final rule would be subject to revised part 9, including the changes required under Executive Order 11988, as amended, the FFRMS, and the Revised Guidelines, such as determining the floodplain for the action and requiring the use of nature-based approaches, where possible, to mitigate harm when development in the floodplain is not avoidable. In paragraph 9.5(b)(1), FEMA proposes to add “as amended” to reflect amendments to Executive Order 11988.

FEMA proposes to update the citations to the Stafford Act sections and references to organizations and titles in paragraphs (c)-(g) as they are not current and reorganize the section for clarity and readability. FEMA proposes to eliminate current paragraph (c)(3) as unemployment assistance would not constitute an “action” under this part (see § 9.4). FEMA proposes to revise current paragraph (c)(6) to clarify that actions involving fire management assistance that include hazard mitigation assistance under sections 404 and 420(d) of the Stafford Act are subject to the 8-step process. Similar to the revision to § 9.7(c)(1), FEMA seeks to clarify where some actions may still be required to complete the 8-step process. FEMA also proposes to update current paragraph (c)(8) as it refers to a defunct title for the Individuals and Households Program and includes programs that no longer exist and restructure the paragraph to reflect current categories of assistance under this program that are not subject to the 8-step process. FEMA proposes to further update this section by removing private bridges from the 8-step process consistent with other exceptions to that process in the Individual Assistance program in current paragraph (c)(8)(i). This change aligns with the existing exemptions for all other forms of home repair and replacement under section 408 of the Stafford Act. FEMA will only provide funding for privately-owned access bridges damaged as a result of a Presidentially-declared disaster in cases where a FEMA inspection determines repairs are necessary to provide drivable access to a primary residence.

In addition to this requirement, FEMA will only provide funding when at least one of the following additional conditions exist: (1) the bridge provides the only access to the property; (2) the home cannot be accessed due to damage caused to other infrastructure; or (3) the safety of the occupants or residence would be adversely affected because emergency services and equipment could not reach the residence.

As these private bridge projects are small in scale and subject to local review and permitting requirements that otherwise consider local floodplain management concerns, FEMA believes they are unlikely to result in significant impacts to the floodplain and requiring the 8-step process for these projects would not necessarily result in improved community resiliency, a key goal of the FFRMS. FEMA, however, seeks comment on whether removing private bridge projects from the 8-step process would adversely impact the floodplain.

See

Individual Assistance Program and Policy Guide Version 1.1 found at

https://www.fema.gov/assistance/individual/policy-guidance-and-fact-sheets

(last accessed July 12, 2023) pg. 89.

See

Individual Assistance Program and Policy Guide Version 1.1 found at

https://www.fema.gov/assistance/individual/policy-guidance-and-fact-sheets

(last accessed July 12, 2023) pg. 89.

FEMA also proposes to revise current § 9.5(c)(12) to further provide that debris clearance and removal under section 502 of the Stafford Act is not subject to the 8-step process. FEMA is also proposing to add a citation to section 407 of the Stafford Act to accompany the reference to non-emergency disposal of debris in this same provision. In current paragraph (c)(13), FEMA proposes to make revisions to update the current monetary thresholds from $5,000 to $18,000 for actions under sections 406 and 407 of the Stafford Act.

This change would reflect the current value of the existing threshold dollar amount, which was set in 1980.

Additionally, FEMA proposes language to require adjustment of the threshold based on the Consumer Price Index for All Urban Consumers published by the

Department of Labor.

This proposed language provides for future changes to the applicability of the 8-step process based on inflationary increases in the cost of actions and helps ensure equitable, cost-effective outcomes by limiting this process to actions of a higher dollar amount. Note FEMA is also proposing to add the Stafford Act sections 406 and 407 for repairs or replacements to § 9.5(c). FEMA's current and proposed dollar value thresholds to determine the applicability of the 8-step decision-making process to certain FEMA actions are updated below as follows:

Section 406 of the Stafford Act involves the repair, restoration, and replacement of damaged facilities while section 407 relates to debris removal.

See

45 FR at 59529.

The U.S. Department of Labor publishes the Consumer Price Index for All Urban Consumers at

https://www.bls.gov/cpi/.

A calculation to determine the impact of CPI-U increases can be made at

https://www.bls.gov/data/inflation_calculator.htm.

Table 4—FEMA's Current and Proposed Dollar Value Threshold To Determine the Applicability of the 8-Step Decision-Making Process

Current threshold

Proposed threshold

Exempt from the 8-step decision making process

Projects under $5,000

Projects under $18,000.

Minimal 8-step decision making process (subject to steps 1, 4, 5, and 8)

Projects between $5,000 and $25,000

Projects between $18,000 and $91,000.

Abbreviated 8-step decision making process (subject to steps 1, 2, 4, 5, and 8)

Projects above $25,000 and up to $100,000

Projects above $91,000 and up to $364,000.

Full 8-step decision making process

Projects above $100,000

Projects above $364,000.

FEMA proposes to relocate current paragraph (g) and redesignate it as paragraph (d), restructuring current paragraphs (d)-(f) to (e)-(g) respectively. FEMA believes this restructuring will make the section more readable and easier for stakeholders to understand. FEMA is also proposing to revise the structure and language in current paragraphs (d) and (g) to better explain the exceptions to the full 8-step process detailed in each paragraph. FEMA proposes to update the current monetary thresholds set in current paragraphs (d) and (g) similar to changes proposed to current paragraph 9.5(c)(13), described above, to reflect the current value of these dollar amounts and also require future changes to these amounts based on the Consumer Price Index for All Urban Consumers as published by the Department of Labor. As explained above, FEMA believes these edits would result in limiting applicability of the 8-step process appropriately based on inflationary increases in the cost of actions. FEMA is proposing the increase and future updates as smaller projects offer little, if any, opportunity for mitigation and the agency believes floodplain management resources are best devoted in areas where they will be most effective. By keeping actions under a certain amount either exempt or with a more streamlined/expedited floodplain management process, FEMA would maintain the intent of the Executive Orders to protect floodplains and wetlands while also ensuring appropriately streamlined, cost-effective, and equitable assistance to communities with smaller projects. FEMA is proposing to revise current paragraph (g)(2) to address actions subject to the FFRMS by changing the current text, which refers to new or substantially improved structures or facilities, to instead refer to new construction, substantial improvement, or repairs to address substantial damage of structures or facilities. FEMA is also proposing to revise current paragraph (g)(3) to include facilities or structures on which a flood insurance claim has been paid. This addition would provide consistency with language existing in current paragraph (d)(4)(iii) and ensure that facilities or structures which have previously sustained damage from flooding on which a flood insurance claim has been paid will be subject to the full 8-step process. As FEMA has already provided funding to recover from prior flood damage on these facilities and structures, the agency believes the full 8-step process is required to ensure any additional funds provided increase resilience against flooding.

FEMA proposes to delete current paragraph (d)(1), consistent with the proposed change above to exempt private bridges from the 8-step process entirely. FEMA also proposes to delete current paragraph (d)(2). The current regulatory language allows for an abbreviated 8-step process for small project grants under the PA program

unless those projects fell into certain categories. FEMA proposes to remove this language because it is no longer applicable; FEMA stopped applying the abbreviated 8-step process to the small project threshold under the PA program after it increased beyond the $100,000 threshold set in current paragraph 9.5(d)(4)(i). FEMA also proposes minor revisions to current paragraph (d)(4)(iii) (proposed (e)(2)(iii)) for clarity and readability.

The current outdated regulatory text refers to section 419 of the Stafford Act in identifying what constituted a small project grant under PA. As a result of updates to the Stafford act, section 419 can now be found in section 422 (42 U.S.C. 5189) which sets forth the authority to create a small project threshold that applies to emergency work (sections 403 or 502), debris removal (section 407) and permanent work (section 406) which is all funded under the PA program.

In current paragraph (e), FEMA proposes to update the responsible official from Director to Regional Administrator as this authority has been delegated to Regional Administrators and make other clarifying edits to reflect current agency terminology in that paragraph as well as current paragraphs (f)(1) and (f)(2). FEMA also proposes clarifying edits in current § 9.5(f)(1) for readability and to eliminate the prime two example references. As explained above in the definitions, FEMA believes that these types of specific examples are best addressed in guidance that can evolve as issues arise and better assist stakeholders with particularly nuanced situations. Further, these specific examples relate to regulatory provisions (current §§ 9.9(e)(6) and 9.11(e)) that FEMA proposes to remove from this rule.

G. Section 9.6—Decision-Making Process

Section 9.6 sets out the floodplain management and wetlands protection decision-making process to be followed by FEMA in applying Executive Orders 11988, as amended, and 11990 to its actions. FEMA proposes a clarifying edit to § 9.6(a) that would delete redundancy. Paragraph (b) of § 9.6 lays out the eight Steps the agency must follow. Step 1 st

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.