# Updates to Floodplain Management and Protection of Wetlands Regulations To Implement the Federal Flood Risk Management Standard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-21101 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** October 2, 2023 - **Citation:** 88 FR 67870 ## 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.” 1 Executive Order 13690 amended Executive Order 11988 and established the FFRMS. The FFRMS is a flood resilience standard that is required for “Federally funded projects” and provides a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains and wetlands. 1 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”) 2 reinstating Executive Order 13690, thereby reestablishing the FFRMS. Accordingly, FEMA is proposing an updated revision to its regulations and an updated supplementary policy to implement the FFRMS. 2 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, 3 and the FFRMS changed the Executive Branch-wide guidance for defining the “floodplain” with respect to “Federally funded projects” ( i.e., actions involving the use of Federal funds for new construction, substantial improvement, or to address substantial damage to a structure or facility). The revised definitions allow for consideration of both current and future flood risks in defining the floodplain to minimize the impact of floods on human health, safety, and welfare and reduce the risk of flood loss. For actions subject to the FFRMS, FEMA proposes to use the updated definition of “floodplain” contained in the Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input (Revised Guidelines). 4 As discussed further below, the FFRMS allows the agency to define “floodplain” using any of three approaches or a fourth approach resulting from any other method in an update to the FFRMS. In many cases, each of these approaches would result in a larger floodplain and a requirement to design projects such that they are resilient to a higher vertical elevation. For actions that do not meet the definition of an action subject to the FFRMS, FEMA would continue to use the historical definition of floodplain with minor clarifying revisions to help stakeholders better understand the terminology. Regardless of whether the action is subject to FFRMS, FEMA will follow the Revised Guidelines 5 to determine whether an action is in the floodplain. Finally, the proposed rule would require the use, where possible, of natural systems, ecosystem processes, and nature-based approaches in the development of alternatives for all actions proposed in a floodplain. 3 Executive Order 13690 amended Executive Order 11988 in 2015 and was revoked in 2017 by Executive Order 13807. Executive Order 13690 was reinstated in 2021 by Executive Order 14030. See 80 FR 64008 (Oct. 22, 2015), 82 FR 40463 (Aug. 24, 2017), and 86 FR 27967 (May 25, 2021). 4 80 FR 64008 (Oct. 22, 2015); https://www.regulations.gov/document/FEMA-2015-0006-0358. (Last accessed July 12, 2023). 5 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. 6 The full extent of future changes in flood risk has not yet been estimated across the full inventory of Federal, State, local, Tribal, and territorial properties. However, in a survey of Federal properties alone, those assessments that have been completed identified over 40,000 individual Federal buildings and structures with a combined replacement cost of $81 billion located in the current 100-year floodplain and approximately 160,000 structures with a total replacement cost of $493 billion located in the current 500 year floodplain. 7 Approximately 10,250 individual Federal buildings and structures were identified in coastal areas with a combined replacement cost of $32.3 billion that would be severely impacted by an eight-feet sea-level rise scenario and over 12,195 individual Federal buildings and structures with a combined replacement cost of over $43.7 billion under a ten-foot “worst case” sea level rise scenario. 8 This proposed rule would ensure that actions subject to the FFRMS are designed to be resilient to both current and future flood risks to minimize the impact of floods on human health, safety, and welfare and to protect Federal investments by reducing the risk of flood loss. 6 As a result of climate change, flood events are on the rise. Climate change is increasing flood risk through (1) more “extreme” rainfall events,” caused by a warmer atmosphere holding more water vapor and changes in regional precipitation patterns; and (2) sea-level rise. See Rob Bailey, Claudio Saffioti, and Sumer Drall, Sunk Costs: The Socioeconomic Impacts of Flooding 3 and 8, Marsh McLennan (2021). 7 Federal Budget Exposure to Climate Risk. OMB Assessment found https://www.whitehouse.gov/wp-content/uploads/2022/04/ap_21_climate_risk_fy2023.pdf (last accessed July 12, 2023). 8 Id. FEMA estimated the total impacts of the proposed rule by analyzing the impact of the FVA, 0.2PFA and CISA for FEMA's Public Assistance (PA), Individual Assistance (IA), and Hazard Mitigation Assistance (HMA) grant programs by examining the number of projects that would be subject to the proposed requirements in the first 10 years after the rule's publication. 9 FEMA's analysis focused on the costs, benefits, and transfer payments ( i.e., impacts on FEMA grants), that would result over a 50-year period from applying the requirements of the proposed rule to those projects, for a total period of analysis spanning 60 years. Tables 1 and 2 show the total impacts of this proposed rule under the three approaches for each of the affected programs. 9 FEMA used an average of the number of affected projects during the prior 10-year period to estimate the average annual impacts of the future 10-year period. Table 1—Summary of Costs, Transfers and Benefits by Approach and Program for Affected Projects in Years 1-10 [Low estimate, 2021$] 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 PA 102,794,460 87,685,759 3,168,346 72,198,527 5,142,645 IA 1,421,690 1,212,730 43,820 998,537 71,125 HMA 48,908,310 41,719,781 1,507,459 34,351,150 2,446,806 FVA Total 61,994,588 52,882,642 1,910,806 43,542,402 3,101,492 0.2PFA Total 53,397,625 45,549,257 1,645,829 37,504,256 2,671,399 FEMA Admin 3,741,680 3,267,150 118,052 2,776,613 197,776 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 PA 82,955,130 70,762,410 2,556,855 58,264,212 4,150,115 IA 1,421,690 1,212,730 43,820 998,537 71,125 HMA 36,681,233 31,289,834 1,130,594 25,763,363 1,835,104 FVA Total 48,898,424 41,711,348 1,507,154 34,344,206 2,446,311 0.2PFA Total 41,973,888 35,804,576 1,293,725 29,480,702 2,099,888 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 PA 120,722,020 102,978,331 3,720,912 84,790,095 6,039,533 IA 1,421,690 1,212,730 43,820 998,537 71,125 HMA 48,908,310 41,719,781 1,507,459 34,351,150 2,446,806 FVA Total 68,035,769 58,035,891 2,097,008 47,785,478 3,403,723 0.2PFA Total 57,766,400 49,275,911 1,780,484 40,572,701 2,889,962 FEMA Admin 4,942,430 4,291,414 155,061 3,619,968 257,848 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) 119,647,439 102,061,693 3,687,791 84,035,355 5,985,773 PA 97,422,670 83,103,514 3,002,776 68,425,607 4,873,903 IA 1,421,690 1,212,730 43,820 998,537 71,125 HMA 36,681,233 31,289,834 1,130,594 25,763,363 1,835,104 FVA Total 53,773,657 45,870,019 1,657,420 37,768,366 1,657,420 0.2PFA Total 45,499,493 38,811,991 1,402,392 31,956,941 2,276,268 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: 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 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 PA IA HMA Total structures Facilities PA 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. 10 Tables 1 and 2 show that the total 60-year benefits for non-residential PA Category E projects in the first 10 years is $43.5 million (7 percent, high). This benefit is for adding one foot of freeboard, assuming a 59-inch sea level rise (SLR). 11 Although the cost for PA Category E projects is $84.8 million (7 percent, high), this cost represents 5 feet of freeboard (FEMA's assumption for CISA). 12 FEMA does not have data to quantify the benefits of additional freeboard and thus the quantified benefits represent only a portion of the increased risk reduction that would be achieved through this rule. Ensuring projects are built to the height necessary to avoid additional loss scenarios would provide additional unquantified benefits of avoided damages to the structure, 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. 10 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. 11 FEMA used one foot for benefits as the 2022 report only specifies monetary benefits for an additional one foot over current requirements. FEMA included this number in the quantified benefits because it is the only monetary benefit available for any freeboard level. 12 Costs for the FVA may be a better comparison because they represent 2 or 3 feet of freeboard, depending on criticality. However, the number of projects using FVA and CISA differ, making such a comparison difficult. III. Legal and Factual Background Below, FEMA describes in more specific detail the basis for this proposed rule. Section III.A describes Executive Order 11988, the Water Resources Council's 1978 “Floodplain Management Guidelines” (1978 Guidelines), and the statutory authority underlying the Executive Order. Executive Order 11988 along with the 1978 Guidelines established an 8-step decision-making process by which Federal agencies carry out Executive Order 11988's direction to avoid the long- and short-term adverse impacts associated with the occupancy and modification of the floodplain and avoid the direct or indirect support of floodplain development whenever there is a practicable alternative. Section III.B describes FEMA's statutory authority to require its grant recipients to carry out repairs or construction in accordance with specific standards. Section III.C describes FEMA's implementing regulations at 44 CFR part 9, which closely follow the model decision-making process under Executive Order 11988. Section III.D describes how lessons learned from major events, including Hurricane Sandy, prompted reevaluation of the prevailing standard for determining whether a proposed action was located within a floodplain. Section III.E describes the development of Executive Order 13690, the Federal Flood Risk Management Standard, and additional guidance in the Revised Guidelines issued in 2015 as well as subsequent amendments to Executive Order 11988. Section III.F describes the substantive components of the Federal Flood Risk Management Standard and Section III.G describes FEMA's proposed approach to implement the required changes. A. Executive Order 11988, “Floodplain Management” The President issued Executive Order 11988 (42 FR 26951, May 25, 1977) in furtherance of the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq. ); the Flood Disaster Protection Act of 1973, as amended (Pub. L. 93-234, 87 Stat. 975); and the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ). The National Flood Insurance Act, as amended by the Flood Disaster Protection Act establishes a multi-purpose program to provide flood insurance, minimize exposure of property to flood losses, minimize the damage caused by flood losses, and guide the development of proposed construction, where practicable, away from floodplains. 13 The National Flood Insurance Act and the Flood Disaster Protection Act highlight coordination of flood insurance with land management programs in flood-prone areas. NEPA requires Federal agencies to analyze the environmental impacts of proposed actions and evaluate alternatives to those actions, which includes the evaluation of the impacts of proposed actions in the floodplains. 14 NEPA mandates that agencies “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.” 15 In furtherance of and consistent with this statutory foundation, Executive Order 11988 requires Federal agencies to avoid, to the extent possible, the long- and short-term adverse impacts associated with the occupancy and modification of floodplains, where there is a practicable alternative. The Executive Order requires each Federal agency to provide leadership and take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the natural and beneficial values served by floodplains in carrying out its responsibilities for: (1) acquiring, managing, and disposing of Federal lands and facilities; (2) providing federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. It states that each agency has a responsibility to evaluate the potential effects of any actions it may take in a floodplain; to ensure that its planning, programs, and budget requests reflect consideration of flood hazards and floodplain management; and to prescribe procedures to implement the policies and requirements of the Executive Order. 13 See 42 U.S.C. 4001 and 4102. 14 See 42 U.S.C. 4332(2)(C). 15 See 42 U.S.C. 4331(b)(3). To meet these requirements, each agency, before taking an action, must determine whether the proposed action will occur in a floodplain. 16 Section (6)(c) of Executive Order 11988 defines the word “floodplain” to mean “the lowland and relatively flat areas adjoining inland and coastal waters including floodprone areas of offshore islands, including at a minimum, the area subject to a one percent or greater chance of flooding in any given year.” 17 16 Any action FEMA takes in a floodplain, including its provision of grants for disaster assistance, undergoes an analysis pursuant to Executive Order 11988 (unless the action is specifically exempted from the requirements of the Order). The grant recipient, therefore, generally provides information to FEMA about the practicability of alternatives outside the floodplain and other information to assist in the analysis. 17 This is also referred to as the “100-year floodplain” or the “base floodplain.” If the action will occur in a floodplain, the agency must consider alternatives to avoid adverse effects and incompatible development in the floodplain. If the agency finds that the only practicable alternative requires the action to occur in the floodplain, the agency must, prior to taking the action, design or modify the action in order to minimize potential harm to or within the floodplain. Additionally, the agency must prepare and circulate a notice explaining why the action is proposed to be located in the floodplain. Particularly relevant to FEMA, the Executive Order also requires agencies to provide appropriate guidance to applicants for grant funding to encourage them to evaluate the effects of their proposals in floodplains prior to submitting grant applications. Executive Order 11988 requires agencies to prepare implementing procedures in consultation with the Water Resources Council (WRC), 18 FEMA, and the Council on Environmental Quality (CEQ). As noted, the WRC issued “Floodplain Management Guidelines” (1978 Guidelines), the authoritative interpretation of Executive Order 11988. 19 The 1978 Guidelines provided 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. 18 The Water Resources Council, established by statute (42 U.S.C. 1962a-1), is charged with maintaining a continuing study and preparing an assessment biennially, or at such less frequent intervals as the Council may determine, of the adequacy of supplies of water necessary to meet the water requirements in each water resource region in the United States and the national interest therein; and maintaining a continuing study of the relation of regional or river basin plans and programs to the requirements of larger regions of the Nation and of the adequacy of administrative and statutory means for the coordination of the water and related land resources policies and programs of the several Federal agencies. It is responsible for appraising the adequacy of existing and proposed policies and programs to meet such requirements and making recommendations to the President with respect to Federal policies and programs. 19 43 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines can be found at this link: 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.” 20 Section 323 also grants FEMA discretion to require any other safe land use and construction practices it deems appropriate after adequate consultation with appropriate State and local government officials. 21 Section 404 of the National Flood Insurance Act grants FEMA the authority to provide flood mitigation grant funding and requires the activities funded to be consistent with floodplain management criteria developed by the Administrator. 22 20 See 42 U.S.C. 5165a(a)(1) 21 See 42 U.S.C. 5165a(a)(2) 22 See 42 U.S.C. 4104c and 4102. C. 44 CFR Part 9, “Floodplain Management and Protection of Wetlands” Consistent with the National Flood Insurance Act, the Flood Disaster Protection Act, and NEPA, FEMA promulgated regulations implementing Executive Order 11988 at 44 CFR part 9, “Floodplain Management and Protection of Wetlands.” 23 Part 9 closely follows the 1978 Guidelines in setting forth FEMA's policy and procedures for floodplain management relating to disaster planning, response and recovery, and hazard mitigation. Part 9 generally applies to FEMA actions, including FEMA direct actions and FEMA's disaster and non-disaster assistance programs. 24 23 FEMA published an interim final rule on December 27, 1979 (44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520). Note that this part also implements a related Executive Order 11990, “Protection of Wetlands.” See 42 FR 26961, May 25, 1977. 24 44 CFR 9.4 defines the actions subject to the requirements, which include federal lands and facilities, providing federal funds for construction and improvements, and conducting activities or programs that affect land use. Pursuant to section 8 of Executive Order 11988, part 9 does not apply to assistance provided for emergency work essential to save lives and protect property and public health and safety, performed pursuant to sections 403 and 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5170b and 5192). In addition, FEMA applies part 9 programmatically to the National Flood Insurance Program (NFIP) 25 . FEMA does not apply part 9 to site-specific actions under the NFIP because the establishment of programmatic criteria, rather than the application of the programmatic criteria to individual situations, is the action with the potential to influence/affect floodplains. 26 25 A complete list of FEMA programs to which Part 9 does not apply appears at 44 CFR 9.5. The exemption for actions under the NFIP is located at 44 CFR 9.5(f). 26 For example, Part 9 requires FEMA to apply the 8-step process to a programmatic determination of categories of structures to be insured but does not require FEMA to apply an 8-step review to a determination of whether to insure each individual structure. See 45 44 CFR 9.5(f). Below FEMA outlines the existing 8-step decision-making process that the agency currently follows in applying Executive Order 11988 to its actions: Step (1) Floodplain and wetland determination (44 CFR 9.7). Under Step 1, FEMA must determine if a proposed agency action is located in or affects the 1 percent annual chance floodplain (or, for critical actions, the 0.2 percent annual chance floodplain) or wetland. The 1 percent annual chance (or base or 100-year) floodplain is the area subject to inundation by the 1 percent annual chance flood, which is that flood which has a 1 percent chance of occurrence in any given year (also known as the base or 100-year flood). A “critical action” is any activity for which even a slight chance of flooding would be too great. 27 The minimum floodplain of concern for critical actions is the 0.2 percent annual chance (or 500-year) floodplain, which is the area subject to inundation from a flood having a 0.2 percent chance of occurring in any given year. The 0.2 percent annual chance floodplain generally covers a larger area than the 1 percent annual chance floodplain. FEMA's regulations state that in each instance where the 8-step process refers to the 1 percent annual chance floodplain, an agency should substitute the 0.2 percent annual chance floodplain for the 1 percent annual chance floodplain if the proposed action is a critical action. Absent a finding to the contrary, FEMA currently assumes a proposed action involving a facility or structure that has been flooded is in the floodplain. 27 The concept of critical actions evolved during the drafting of the 1978 Guidelines and reflects a concern that the impacts of floods on human safety, health, and welfare for many activities could not be minimized unless a higher degree of protection than the base flood was provided. See Interagency Task Force on Floodplain Management, Further Advice on Executive Order 11988 Floodplain Management (1986) (last accessed July 12, 2023). FEMA follows a specific regulatory sequence in order to make its floodplain determination. First, FEMA must consult the Flood Insurance Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and the Flood Insurance Study (FIS) for the area. 28 A FIRM is an official, detailed map issued by the NFIP, generally showing elevations and boundaries of the 1 percent annual chance floodplain and the 0.2 percent annual chance floodplain. 29 The FBFM is a version of a flood map that shows only the floodway 30 and flood boundaries. An FIS report is an examination, evaluation, and determination of flood hazards and, if appropriate, corresponding water surface elevations. If a FIRM is not available, FEMA must obtain a Flood Hazard Boundary Map (FHBM) which is a less detailed map than a FIRM and shows the approximate areas of the 1 percent annual chance floodplain. If data on flood elevations, floodways, or coastal high hazard areas are needed, or if the map does not delineate the flood hazard boundaries in the vicinity of the proposed site, FEMA must seek detailed information from a list of sources included in the regulations. See 44 CFR 9.7(c)(1)(ii). If the sources listed do not have or know of detailed information and are unable to assist in determining whether the proposed site is in the 1 percent annual chance floodplain, FEMA must seek the services of a licensed consulting engineer experienced in this type of work. If, however, a decision involves an area or 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). 28 FEMA also utilizes best available information in making floodplain determinations, which may include preliminary FIRMs or Advisory Base Flood Elevations (ABFEs). See FEMA Policy: Guidance on the Use of Available Flood Hazard Information (last accessed July 12, 2023). 29 FEMA estimates that only approximately 20 percent of mapped flood zones have detailed floodplain boundaries of the 0.2 percent annual chance floodplain. 30 The floodway is the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. See 44 CFR 59.1. Step (2) Early public review (44 CFR 9.8). FEMA must make public its intent to locate a proposed action in the floodplain or a wetland. 31 FEMA must provide adequate information to enable the public to have an impact on the decision outcome for all proposed actions having potential to affect, adversely, or be affected by floodplains or wetlands. For each action having national significance for which notice is provided, FEMA uses the Federal Register as the minimum means for notice and will provide notice by mail to national organizations reasonably expected to be interested in the action. 44 CFR 9.8(c)(5) describes the contents of the public notice, such as a description of the action, the degree of hazard involved, a map of the area, or other identification of the floodplain, and identification of the responsible agency official. 31 This step is required for any action that is within or affects a floodplain or wetland unless exempted or subject to the abbreviated processes outlined in 44 CFR 9.5. Step (3) Practicable alternatives (44 CFR 9.9). If the action is in the floodplain or a wetland, FEMA will identify and evaluate practicable alternatives to carrying out a proposed action in floodplains or wetlands, including the following: alternative sites outside the floodplain or wetland; alternative actions which serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by the floodplain or wetland; and “no action.” The floodplain or wetland site itself must be a practicable location in light of the other factors. Under 44 CFR 9.9(c), FEMA will analyze several factors in determining the practicability of the alternatives described in 44 CFR 9.9(b), namely natural environment, social concerns, economic aspects, and legal constraints. 44 CFR 9.9(d) states that FEMA will not locate the proposed action in the floodplain or wetland if a practicable alternative exists outside the floodplain or wetland. For critical actions, FEMA will not locate the proposed action in the 0.2 percent annual chance floodplain if a practicable alternative exists outside the 0.2 percent annual chance floodplain. Even if no practicable alternative exists outside the floodplain, in order to carry out the action the floodplain or wetland must itself be a practicable location in light of the review required under Step 3. Step (4) Impact of chosen alternative (44 CFR 9.10). FEMA must identify if the action has impacts in the floodplain or wetland. 44 CFR 9.10(b) provides that FEMA will identify the potential direct and indirect adverse impacts associated with the occupancy and modification of floodplains or wetlands and the potential direct and indirect support of floodplain or wetland development that could result from the proposed action. Step (5) Minimize impacts (44 CFR 9.11). If the proposed action has identifiable impacts in the floodplain or wetland or directly or indirectly supports development in the floodplain or wetland, FEMA must minimize these effects and restore and preserve the natural and beneficial values served by floodplains and wetlands. 44 CFR 9.11(b) states generally that FEMA will design or modify its actions to minimize harm to or within the floodplain; will minimize destruction, loss, or degradation of wetlands; will restore and preserve natural and beneficial floodplain values; and will preserve and enhance natural and beneficial wetland values. Pursuant to 44 CFR 9.11(c), FEMA will more specifically minimize potential harm to lives and the investment at risk from the 1 percent annual chance flood, or, in the case of critical actions, from the 0.2 percent annual chance flood; potential adverse impacts the action may have on others; and potential adverse impacts the action may have on floodplain values. Pursuant to 44 CFR 9.11(d), FEMA will not allow new construction or substantial improvement in a floodway and will not allow new construction in a coastal high hazard area, except for a functionally dependent use 32 or a structure or facility which facilitates an open space use. For a structure which is a functionally dependent use, or which facilitates an open space use, FEMA will not allow construction of a new or substantially improved structure in a coastal high hazard area unless it is elevated on adequately anchored pilings or columns and securely anchored to such piles or columns so that the lowest portion of the structural members of the lowest floor (excluding the pilings or columns) is elevated to or above the 1 percent annual chance flood level (the 0.2 percent annual chance flood level for critical actions) (including wave height). Regarding elevation of structures, 44 CFR 9.11(d)(3) states that there will be no new construction or substantial improvement of structures unless the lowest floor of the structures (including basement) is at or above the level of the 1 percent annual chance flood, and there will be no new construction or substantial improvement of structures involving a critical action unless the lowest floor of the structure (including the basement) is at or above the level of the 0.2 percent annual chance flood. 32 A functionally dependent use means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water. See 44 CFR 9.4. 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, 33 which created the Federal Interagency Hurricane Sandy Rebuilding Task Force (Sandy Task Force). Pursuant to direction from Executive Order 13632 to remove obstacles to resilient rebuilding, the Sandy Task Force reevaluated the 1 percent chance/100-year standard. In April 2013, the Sandy Task Force announced a new Federal flood risk reduction standard which required elevation or other flood-proofing to 1 foot above 34 the best available and most recent 1 percent annual chance flood elevation and applied that standard to all Federal disaster recovery investments in Sandy-affected communities. 35 The Sandy Task Force called for all major rebuilding projects in Sandy-affected communities using Federal funding to be elevated or otherwise flood-proofed according to this new flood risk reduction standard. 33 77 FR 74341 (Dec. 14, 2012). 34 This is also known as “freeboard.” “Freeboard” is a factor of safety usually expressed in feet above a flood level for purposes of floodplain management. Freeboard tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrologic effect of urbanization of the watershed. See https://www.fema.gov/glossary/freeboard (last accessed July 12, 2023). 35 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 36 that directed agencies to take appropriate actions to reduce risk to Federal investments, specifically directing agencies to build on the work done by the Sandy Task Force and to update their flood risk reduction standards for “federally-funded . . . projects” to ensure that “projects funded with taxpayer dollars last as long as intended.” 37 After a year-long process of receiving input from State, local, Tribal, and territorial governments; private businesses; trade associations; academic organizations; civil society; and other stakeholders, the Task Force provided a recommendation to the President in November 2014. The Climate Task Force recommended that, in order to ensure resiliency, Federal agencies, when taking actions in and around floodplains, should include considerations of the effects of changing conditions, including sea level rise, more frequent and severe storms, and increasing river flood risks. The Climate Task Force also recommended that the best available climate data should be used in siting and designing projects receiving Federal funding, and that margins of safety, such as freeboard and setbacks, should be included. 38 36 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). 37 See id at 15. 38 President's State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience, Recommendations to the President, (2014), available at 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 On January 30, 2015, the President issued Executive Order 13690, “Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input.” 39 Executive Order 13690 amended Executive Order 11988 and established the FFRMS. It required FEMA to publish an updated version of the Implementing Guidelines (revised to incorporate the changes required by Executive Order 13690 and the FFRMS) in the Federal Register for notice and comment. Finally, Executive Order 13690 required the WRC to issue final Guidelines to provide guidance to agencies on the implementation of Executive Order 11988, as amended, consistent with the FFRMS. 39 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. 40 FEMA received over 556 separate submissions. 41 The final Revised Guidelines were issued on October 8, 2015. 42 The Revised Guidelines contain an updated version of the FFRMS (located at Appendix G of the Revised Guidelines), reiterate key concepts from the 1978 Guidelines, and explain the new concepts resulting from the FFRMS. In response to public comments, the Mitigation Framework Leadership Group clarified the distinction between actions and Federally funded projects. 40 80 FR 6530, Feb. 5, 2015. 41 FEMA received approximately 556 separate submissions, which raised over 2700 separate issues and positions. Written comments were received at a series of 8 in-person listening sessions across the country (135 submissions); verbal comments were shared during the public comment periods of these same listening sessions (74 commenters); comments were submitted through the FFRMS email address (20 submissions); comments were submitted through regulations.gov (326 submissions); and comments were submitted as part of a petition of support (1 submission). 42 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). On August 15, 2017, the President issued Executive Order 13807 (“Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects”) which revoked Executive Order 13690. See 82 FR 40463, Aug. 24, 2017. Accordingly, on March 6, 2018, in light of the revocation of Executive Order 13690, FEMA withdrew the August 22, 2016 NPRM and supplementary policy (83 FR 9473). On May 20, 2021, the President issued Executive Order 14030 (“Climate-Related Financial Risk”) 43 reinstating Executive Order 13690, thereby reestablishing the FFRMS. Executive Order 14030 also states that the Revised Guidelines issued in 2015 were never revoked and remain in effect. As such, FEMA reviewed its prior NPRM and proposed policy and decided to revise its approach to implementation based on lessons learned during and since the 2016 rulemaking process. Specifically, FEMA first partially implemented the FFRMS by policy with respect to covered projects in existing floodplains in its Public Assistance and Hazard Mitigation Assistance programs. 44 FEMA next proposes to fully implement the FFRMS through this updated revision to its regulations and an updated supplementary policy. 43 86 FR 27967 (May 25, 2021). 44 See FEMA Policy 104-22-003, “Partial Implementation of the Federal Flood Risk Management Standard for Public Assistance (Interim),” June 3, 2022 found at 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. 45 Incorporating the FFRMS will expand the floodplain and require projects be built with higher resiliency. Applying the FFRMS will help ensure that Federally funded projects will last as long as intended. In addition, the FFRMS and revised guidelines require the evaluation of natural features and nature-based approaches, where possible, in the analysis of practicable alternatives in Step 3 of the decision-making process for all Federal actions. 45 Although the FFRMS describes various approaches for determining the higher vertical flood elevation and corresponding horizontal floodplain for Federally funded projects, it is not meant to be an “elevation” standard. The FFRMS is a resilience standard. The vertical flood elevation and corresponding horizontal floodplain determined using the approaches in the FFRMS establish the level to which a structure or facility must be resilient. This may include using structural or non-structural methods to reduce or prevent damage; elevating a structure; or, where appropriate, designing it to adapt to, withstand, and rapidly recover from a flood event. See “Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input” (Oct. 8, 2015), found at 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. 46 46 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. 47 For areas vulnerable to coastal flood hazards, the CISA includes consideration of the regional sea-level rise variability and lifecycle of the Federal action. This includes use of the Department of Commerce's National Oceanic and Atmospheric Administration's (NOAA's) or similar global mean sea-level-rise scenarios. These scenarios would be adjusted to the local relative sea-level conditions and would be combined with surge, tide, and wave data using state-of-the-art science in a manner appropriate to policies, practices, criticality, and consequences. For areas vulnerable to riverine flood hazards ( i.e., flood hazards stemming from a river source), the CISA would account for changes in riverine conditions due to current and future changes in climate and other factors such as land use by applying state-of-the-art science in a manner appropriate to policies, practices, criticality, and consequences (risk). The CISA for critical actions would utilize the same methodology as used for non-critical actions that are subject to Executive Order 11988, as amended, but with an emphasis on criticality as one of the factors for agencies to consider when conducting the analysis. 47 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. 48 48 See Revised Guidelines at 53. The Revised Guidelines suggest that agencies should apply a reasonableness standard to higher State, Tribal, Territorial, or local (STTL) floodplain management standards. FEMA has historically deferred to higher local codes and standards from an STTL government in 44 CFR 9.11(d)(6) and will continue the practice through this rulemaking, rather than applying a case-by-case reasonableness analysis and believes this is appropriate because of program-specific controls that ensure higher standards are reasonable. Specifically, in the PA program, if an STTL government has adopted a code or standard that exceeds minimum standards set by FEMA, regulations at 44 CFR 206.226(d) require the code to be in place and adopted pre-disaster which guards against an STTL government's adoption of unreasonably high codes and standards. With respect to mitigation projects, they are all required to be cost-effective as a minimum criteria of eligibility. See 42 U.S.C. 5170c(a); 42 U.S.C. 5133(b); 42 U.S.C. 4104c(c)(2)(A). This project-by-project cost-effectiveness analysis should guard against any STTL standards that are unreasonably high. G. FEMA's Implementation of the FFRMS and the Revised Guidelines When Executive Order 13690 was issued, and again when it was reinstated with Executive Order 14030, FEMA evaluated the application of the FFRMS with respect to its existing authorities and programs. The FFRMS establishes a flexible standard to improve resilience against the impact of flooding—to design for the intended life of the Federal investment. FEMA supports this principle. Between 1980 and 2021, the United States experienced 35 flooding disaster events, each with damages totaling over $1 billion or more, and a total of $164.2 billion in damages for those 35 flooding disasters. 49 FEMA, as a responsible steward of Federal funds, must ensure it does not needlessly repeat Federal investments in the same structures and/or facilities after flooding events. In addition, the FFRMS will help support the thousands of communities across the country recovering from disasters, seeking to mitigate future impacts of flooding and to strengthen infrastructure and other community assets to be more resilient to flood risk. 50 FEMA recognizes that the need to make structures resilient also requires an equitable and flexible approach to adapt to the needs of the Federal agency, local community, and the circumstances surrounding each project or action consistent with evolving science and engineering advancements that demonstrate a better understanding of flood risk and flood risk reduction. 49 See “Billion-Dollar Weather and Climate Disasters,” https://www.ncdc.noaa.gov/billions, DOI: 10.25921/stkw-7w73 (last accessed July 12, 2023). 50 For example, FEMA data indicates approximately 18,068 eligible applicants for public assistance have participated in the 8-step process required by 44 CFR part 9 between 2012 and 2021. The current floodplain policy was designed to accept a specific level of flood risk utilizing the 1 percent or 0.2 percent annual chance floodplains. However, these values do not incorporate changing future conditions caused by increasing severity of flooding and other associated issues such as coastal erosion. The result is that the current level of the 1 percent annual chance and 0.2 percent annual chance flood elevation can underestimate the flooding risk to a particular action and leave communities at higher risk to future flooding events. Where CISA is available and actionable, the risk of flooding can be determined based on climate science to identify the appropriate level of risk protection for an action based on factors such as local flood characteristics, criticality of the action, and planned lifespan of the action. As CISA is based on the available and actionable science for a specific location and action, the result is a determination of the appropriate level of resiliency to design minimization measures. Other methods may lower the flood risk as they are above the current floodplain policy, but in some instances, projects may be built to a higher resiliency than required (overbuilt) or to a lower resiliency than needed (underbuilt). 51 51 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. 52 For actions which do not meet the definition of an action subject to the FFRMS, an agency should continue to use the historical definition of floodplain with minor clarifying revisions. This means that one of the first steps an agency must take is to determine the appropriate floodplain. Figure 1 illustrates the process by which FEMA would decide which floodplain would apply to an action subject to the FFRMS compared to an action that would not be subject to the FFRMS. 52 FEMA considers data to be available and actionable based on the Revised Guidelines. Appendix H of the Revised Guidelines states that best available data and science are transparent—clearly outlines assumptions, applications, and limitations; technically credible—transparent subject matter or more formal external peer review, as appropriate, of processes and source data; usable—relevance and accessibility of the information to its intended users. For the climate-informed approach, usability can be achieved by placing climate-related scenarios into appropriate spatial, temporal, and risk-based contexts; legitimate—perceived by stakeholders to conform to recognized principles, rules, or standards. Legitimacy might be achieved through existing government planning processes with the opportunity for public comment and engagement; and flexible—scientific, engineering, and planning practices to address climate change-related information are evolving. To respond, agencies need to adapt and continuously update their approaches consistent with agency guidelines and principles. Also under Appendix H, actionable science consists of theories, data, analyses, models, projections, scenarios, and tools that are: relevant to the decision under consideration; reliable in terms of its scientific or engineering basis and appropriate level of peer review; understandable to those making the decision; supportive of decisions across wide spatial, temporal, and organizational ranges, including those of time-sensitive operational and capital investment decision-making; and co-produced by scientists, practitioners, and decision-makers, and meet the needs of and are readily accessible by stakeholders. See Appendix H at pgs. 5-6. 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. 53 These considerations have led FEMA to propose a policy that considers the type and criticality of the action involved, the availability and actionability of the data, and equity concerns, as further explained in the current proposed supplementary policy. 53 For purposes of this rulemaking, overbuilding and underbuilding refers to building or protecting structures and facilities to a higher or lower resilience standard than necessary to reduce flood risks. 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. 54 54 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 55 and to meet NFIP and State, local, Tribal, and territorial standards will continue to apply. 56 In doing so, FEMA believes the 8-step process with FFRMS implementation will result in a level of resiliency that is effective for the action and also equitable for the community by utilizing available and actionable scientific data to tailor the future flooding risk to the action. 55 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). 56 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. 57 By following the same sequence that FEMA has historically used for determining the appropriate elevation and utilizing known mapping products, FEMA staff would need relatively minimal additional training to be able to use these products to determine the horizontal extent of the FVA floodplain. In addition, the familiarity of the process and products to be used in most projects would benefit stakeholders by providing a consistent methodology which stakeholders would similarly be able to use to determine where FEMA will require application of the FFRMS. Additionally requiring the use of the FVA as the minimum elevation for critical actions would be consistent with FEMA's policy to encourage communities to adopt higher standards, including freeboard standards, than the minimum floodplain management criteria under the NFIP. 58 Generally, adoption of a freeboard tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrological effect of urbanization of the watershed. 59 Consistent with FEMA's Community Rating System (CRS) policy, 1,380 of the 1,740 CRS-participating localities have adopted freeboard requirements that exceed current Federal standards within 50 states. 60 FEMA supports that adoption by requiring that all of its projects are consistent with more restrictive Federal, State, or local floodplain management standards. 61 57 FEMA Flood Map Products. See https://www.fema.gov/flood-maps/products-tools/products. (Last accessed July 27, 2023). 58 See 44 CFR 60.1(d). 59 See 44 CFR 59.1. 60 See https://www.fema.gov/floodplain-management/community-rating-system#participating (last accessed July 12, 2023). 61 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. 62 This wide variation in risk reduction using the FVA approach may result in underbuilding or overbuilding in some areas. Without data narrowly tailored to the location's specific risks, the FVA may result in building or protecting structures and facilities to a higher or lower resilience standard than necessary to reduce flood risks. This potential for overbuilding or underbuilding may raise equity concerns for underserved communities seeking to rebound quickly and effectively from a disaster. Those communities may struggle to pay the additional costs required to build to a higher resilience standard than might be necessary if FEMA were to instead apply the CISA, thus unnecessarily delaying disaster recovery. 63 Alternatively, communities may be more vulnerable to future flooding and therefore repair expenses where building to a lower resilience standard under the FVA than if FEMA were to apply CISA. 62 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. 63 See Jeremy Martinich, James Neumann, Lindsay, Ludwig, and Lesley Jantarasami, “Risks of sea level rise to disadvantaged communities in the United States” Mitig Adapt Strateg Glob Change (2013) 18:169-185, found at 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. 64 The 0.2PFA may result in a higher elevation than the FVA in some circumstances and lower elevations in other areas. FEMA is challenged by the limited national availability of information on the 0.2 percent annual chance flood elevation and the additional costs associated with producing this information where it is not yet available. While most areas of the country have 1 percent annual chance floodplain information and the necessary topographical information to determine the horizontal extent under the FVA, far fewer are mapped with 0.2 percent annual chance floodplain information. This is because although all FEMA-mapped flood zones have either detailed or approximate 1 percent annual chance floodplain boundaries, FEMA estimates that only 20 percent of effective flood zones have detailed floodplain boundaries of the 0.2 percent annual chance floodplain. 65 There is some additional 0.2 percent annual chance floodplain mapping coverage available from FEMA products that are in preliminary or draft stages, and from other Federal, state, and local agencies. Data showing the boundaries and elevations for the 0.2 percent annual chance flood, however, is far less available than information for the 1 percent annual chance flood. Additionally, in coastal areas, the FFRMS requires Federal agencies to use the FVA as the minimum elevation when not using the CISA, if the 0.2 percent annual chance flood information depicted on FEMA's regulatory products considers storm-surge hazards but not wave action, and wave action data cannot be obtained from other sources. 66 This requirement is essential to ensure the effectiveness of this resilience standard. Only some areas have 0.2PFA with wave action information. Finally, there could also be equity concerns related to underbuilding or overbuilding to this standard, as again communities seeking to rebound quickly and effectively from a disaster may struggle to pay the additional costs required to build to a higher resilience standard than might be necessary if FEMA were to instead apply the CISA, thus unnecessarily delaying disaster recovery. Given the challenges with information availability, costs, and certainty for stakeholders, FEMA is not proposing the 0.2PFA for all actions subject to the FFRMS. However, the consistency provided by the 0.2PFA when the data is available provides a check against the variability of the FVA approach, so FEMA plans to use the two approaches together. 64 See Guidelines at pg. 6. 65 FEMA riverine flood hazard data inventory information comes from the Coordinated Needs Management Strategy dataset. 66 See Revised Guidelines at 57. The CISA Considered. Consistent with the Revised Guidelines, FEMA is proposing the use of CISA as the preferred approach where data is available and actionable for both critical and non-critical actions as CISA uses a more site-specific approach to predict flood risk based on future conditions. FEMA believes CISA has the potential to be the best and most well-informed approach to building resilience in an equitable manner and ensuring a reduction in disaster suffering. While all three approaches consider the effects of changing conditions on current and future flood risk, CISA is the only approach that uses climate science data to determine the appropriate floodplain for actions subject to the FFRMS. The FVA is a standard of protection set within a margin of error and can result in underbuilding or overbuilding because the data is not tailored to consider the flood risk in a specific location. The 0.2PFA provides a consistent reduction in flood risk but the data is often not available. Neither approach uses climate science to determine future flood risk for specific locations. CISA is the only approach that ensures projects are designed to meet current and future flood risks unique to the location and thus ensures the best overall resilience, cost effectiveness, and equity. CISA provides a forward-looking assessment of flood risk based on likely or potential climate change scenarios, regional climate factors, and an advanced scientific understanding of these effects. CISA allows FEMA to make this assessment specific to the communities involved and to tailor the assessment to their specific resilience needs, factoring in cost-effectiveness of resilience efforts and equity. As explained above, the FVA approach presents a uniform solution that is not sufficiently tailored to meet specific community needs and lacks full consideration of future conditions. With a mandate to expand the floodplain and elevate to a specific height without additional considerations, the FVA approach can result in a community's project being built to a higher or lower standard than necessary for the community's intended use and result in additional expense to the community. Similarly, the 0.2PFA may result in a community's project being built to a higher or lower standard than necessary for the community's intended use and result in additional expense to the community because the 0.2PFA lacks full consideration of future conditions. Where available, CISA presents the best data available on current and future conditions to help FEMA work with communities to implement resilient, cost-effective projects. For critical actions, FEMA is proposing to utilize elevations determined by applying CISA so long as that elevation is at least the elevation of the 0.2PFA. Under this proposal, FEMA could choose to allow use of the CISA, even if the resulting elevation is lower than the application of the FVA. This approach would give FEMA and its recipients more flexibility in implementing the standard, would enable FEMA and its recipients to build to an elevation based on the best available science taking criticality into account, would ensure adequate protection in those areas that are projected to experience future flood elevations beyond those identified using the FVA or 0.2PFA, and would provide a pathway to relief for those areas that experience declining flood risks. 67 67 While FEMA believes that the average flood risk will generally continue to increase nationwide due to changing conditions, there is considerable uncertainty in projecting flood risk at more granular levels. Some areas may experience declines in flood risk due to reduced rainfall or other unpredictable changes to the floodplain. Similarly, for non-critical actions, FEMA is proposing to utilize elevations determined by applying CISA so long as that elevation is at least the elevation of the 1 percent annual chance flood elevation. Combined, these options would balance the objectives that applicants are building in an equitable manner to the most protective level based on the best available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science without overbuilding and would eliminate the potential for a scenario where an applicant was allowed to build to a lower elevation than previously required for critical and non-critical actions under FEMA's current implementation of Executive Order 11988. 68 68 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. 69 FEMA believes data availability and actionability will continue to advance for CISA in the future. However, as actionable climate data are not currently available for all locations, FEMA is proposing the FVA and 0.2PFA alternatives in the absence of actionable CISA data. 69 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. 70 Sea level rise projections are just one potential factor in a climate-informed science approach. FEMA expects that more data will be developed supporting broader-based application of CISA as agencies implement the FFRMS and that this data will be considered and incorporated into future updates of the FFRMS and FEMA's implementation thereof. FEMA requests comment on the availability of actionable, planning-scale and/or project-scale climate data with respect to coastal and riverine floodplains. 70 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. 71 For example, an applicant might consider a construction project that is in a coastal floodplain and find that there are multiple projections for what the sea level rise may be in 50 years. The most aggressive projection might indicate that the project should be elevated 10 feet above the base flood elevation for a critical action. However, the applicant may determine that this project is not intended to be functional for 50 years, the action is not critical, and justify a lesser projection based on criticality and expected lifespan. FEMA anticipates these types of decisions may be more standardized and accessible with a suite of Federal tools under development to assist FEMA and stakeholders in establishing the CISA floodplain. Further, FEMA's proposed approach focuses on leveraging the best available data to inform flood risk, generally allowing communities that have actionable data specific to their locations to utilize that information in the 8-step process. FEMA requests comment regarding how FEMA could implement the CISA using a publicly accessible, standardized, predictable, flexible, and cost-effective methodology. FEMA also seeks comment on whether the agency should accept locally available CISA data and methods. 71 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. 72 The continued emphasis on the importance of making critical actions more resilient demonstrates an ongoing concern that the risks of flooding for many critical actions cannot be minimized without higher standards. The criticality of the action makes the risk of flooding too great, and a higher resilience standard is appropriate to best reduce that risk. 72 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. 73 Consistent with these concerns, FEMA's proposed supplementary policy would require the lower of the FVA floodplain or the 0.2 PFA floodplain for non-critical actions. FEMA believes the lower approach would help reduce the burden on communities by addressing concerns related to overbuilding, particularly in underserved communities seeking to rebound quickly and effectively from a disaster. Selecting the lower approach for non-critical actions will still result in a higher level of resilience than the current requirements under part 9 while also taking equity and cost-effectiveness considerations into account. 73 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 74 on the accessibility of covered facilities under the Fair Housing Act, the Americans with Disabilities Act (ADA), the Architectural Barriers Act (ABA), and Section 504 of the Rehabilitation Act of 1973. Elevating buildings as a flood damage mitigation strategy could have a negative impact on affected communities' disabled and elderly populations if appropriate accommodations are not made. Also, even if the homes of people with disabilities are elevated and made accessible, other elevated single- and multi-family housing stock in the community may become inaccessible if appropriate accommodations are not made. It is crucial for community sustainability and integration of people with disabilities that buildings impacted by FFRMS requirements be made to comply with all accessibility requirements. 74 Floodproofing of areas below the BFE in residential buildings is generally not permitted under the NFIP unless communities have been granted an exception to permit floodproofed basements. See 44 CFR 60.3. The NFIP restriction against floodproofing of residential structures reflects FEMA's longstanding policy position that residential structures require a higher standard of resilience due to the increased potential for loss of human life. Floodproofing is also not recommended for residential structures under other FEMA programs. See Hazard Mitigation Assistance Technical Review Job Aid Series “Dry Floodproofing Technical Review,” at pg. 7 found at 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. 75 75 For example, see Low-Water Crossings: Geomorphic, Biological, and Engineering Design Considerations at 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. 76 In particular, FEMA will use Appendix H of the Revised Guidelines titled “Climate-Informed Science Approach and Resources” to guide its decision-making. 76 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-21101. Public record. Not legal advice.