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

Federal RegisterJul 11, 2024

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 9

[Docket ID FEMA-2023-0026]

RIN 1660-AB12

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

AGENCY:

Federal Emergency Management Agency, Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

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

DATES:

This rule is effective September 9, 2024.

FOR FURTHER INFORMATION CONTACT:

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

fema-regulations@fema.dhs.gov.

SUPPLEMENTARY INFORMATION:

Contents

I. Executive Summary

A. Purpose of the Regulatory Action

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

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

II. Background and Legal Authority

A. Executive Order 11988, “Floodplain Management”

B. Statutory Authority To Require FFRMS Under FEMA Grant Programs

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

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

E. Substantive Components of the FFRMS

F. Summary of the 2023 Proposed Rule and Proposed FFRMS Policy

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

III. Discussion of Public Comments and FEMA's Responses

A. Summary of Public Comments

B. Comments in Support of the Rule

C. Comments in General Opposition to the Rule

D. FEMA's Authority for Part 9 and Revisions

E. Definitions

F. FFRMS Applicability

G. FFRMS Approaches

H. FEMA's FFRMS Policy Approach

I. The FFRMS and Floodplain/Wetland Determination Data

J. FFRMS Implementation

K. Emphasis on Nature-Based Approaches

L. Other 8-Step Process Comments

M. Other Comments

N. Accessibility

O. Regulatory Impact Analysis Comments

I. Executive Summary

A. Purpose of the Regulatory Action

The purpose of this regulatory action is to finalize a rulemaking that will improve the preparedness and resilience of communities and Federal assets against the increasing impacts of flooding. All Federal agencies, including FEMA, have long taken action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the natural and beneficial values served by floodplains when carrying out certain agency functions. Federal agencies accomplish this by applying the longstanding 8-step decision-making process to any action they take in floodplains to ensure they avoid, to the extent possible, the long- and short-term adverse impacts associated with the occupancy and modification of floodplains, and to avoid direct or indirect support of floodplain development wherever there is a practicable alternative.

This framework was originally established in 1977 by Executive Order 11988, “Floodplain Management,” (42 FR 26951) which was issued in furtherance of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321

et seq.

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

et seq.

), and the Flood Disaster Protection Act of 1973, as amended (Flood Disaster Protection Act) (Pub. L. 93-234, 87 Stat. 975). Executive Order 11988 was supplemented by guidance called “Floodplain Management Guidelines” issued in 1978 by the U.S. Water Resources Council (“1978 Guidelines”).

FEMA implemented Executive Order 11988 in 1980 through the promulgation of regulations at 44 CFR part 9, “Floodplain Management and Protection of Wetlands,”

which applies the 8-step decision-making process to all actions FEMA directly takes and to all actions that it funds through grants to eligible State, local, Tribal, and territorial (SLTT) governments, certain private non-profits, and individuals and households for pre- and post-emergency or disaster-related projects.

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

hud.gov/sites/documents/DOC_14216.PDF

(last accessed Jan. 24, 2024).

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.

The first step in the 8-step process is to determine whether the action FEMA proposes to take or fund will occur in a floodplain or wetland.

Section (6)(c) of Executive Order 11988 defined the term “floodplain” to mean, at a minimum, “that area subject to a one percent or greater chance of flooding in any given year,” which is recognized as the “base floodplain.” Executive Order 11988 and the base floodplain definition remained unchanged from 1977 until 2015. In 2015, President Barack Obama amended Executive Order 11988 by adding a new flood risk reduction standard to the existing 8-step decision-making process to improve the Nation's resilience against the increasing impacts of flooding.

The flood risk reduction standard, called the Federal Flood Risk Management Standard (FFRMS), is a flexible framework to define the floodplain that allows agencies to choose among several approaches to expand the base floodplain to a higher vertical elevation and corresponding horizontal extent for all Federally

funded projects. Federally funded projects are defined as actions where Federal funds are used for new construction, substantial improvement, or repairs to address substantial damage to structures and facilities.

The amendments also direct agencies to use natural systems, ecosystem processes, and nature-based approaches when developing alternatives to locating the action in the floodplain. The Water Resources Council then updated the 1978 Guidelines and issued the “Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, `Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input' ” (“Revised Guidelines”)

to provide additional information on the use of the FFRMS.

Any action FEMA takes in a floodplain or wetland, including its provision of grants for disaster assistance, undergoes an analysis pursuant to Executive Orders 11988 and 11990 (unless the action is specifically exempted from the requirements of the Orders). The grant recipient, therefore, generally provides information to FEMA about the practicability of alternatives outside the floodplain and wetland and other information to assist in the analysis.

Executive Order 13690, “Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input.” 80 FR 6425, Feb. 4, 2015. In 2017, President Donald Trump revoked the amendments to Executive Order 11988.

See

Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Project,” 82 FR 40463, Aug. 24, 2017. In 2021, President Joseph Biden reinstated the amendments.

See

Executive Order 14030, “Climate Related Financial Risk,” 86 FR 27967, May 25, 2021.

See

“Guidelines for Implementing Executive Order 11998, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input,” 80 FR 64008 (Oct. 22, 2015) (providing notice of the availability of the Revised Guidelines in the docket for the rulemaking at

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

(main content) and

https://www.regulations.gov/document/FEMA-2015-0006-0372

(appendices)) also available at

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

(last accessed Mar. 11, 2024).

80 FR 64008, Oct. 22, 2015.

FEMA first partially implemented the FFRMS in its grant programs through policy using an interim approach that applied higher elevation requirements to eligible projects in existing floodplains.

FEMA then proposed to fully implement the FFRMS in its October 2, 2023 NPRM and supplementary policy.

FEMA proposed to prioritize the use of the Climate-Informed Science Approach (CISA) in its FFRMS implementation. The CISA establishes the required vertical elevation and corresponding horizontal floodplain, through the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science, in accordance with the Revised Guidelines. When such data is not available, FEMA's NPRM and supplementary policy proposed the use of other approaches depending on the criticality of the action. FEMA also proposed to require the use of natural systems, ecosystem processes, and nature-based approaches where possible.

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 Jan. 24, 2024) and FEMA Policy 206-21-003-0001, “Partial Implementation of the Federal Flood Risk Management Standard for Hazard Mitigation Assistance Program,” Dec. 7, 2022 found at

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

(last accessed Jan. 24, 2024).

88 FR 67870, Oct. 2, 2023; 88 FR 67697, Oct. 2, 2023.

FEMA has authority to require application of the FFRMS as a condition of funding in its grant programs based on the grant programs' authorizing statutes. Congress granted FEMA the authority to provide Federal assistance through multiple grant programs under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act),

the NFIA,

the Homeland Security Act of 2002,

the Federal Fire Prevention and Control Act of 1974,

the Earthquake Hazards Reduction Act of 1977,

and various other appropriations acts. Under each of these authorities, FEMA may set grant eligibility criteria consistent with the respective purposes of such programs and FEMA's mission, including to protect Federal investments from the risks of further damage.

Under the Stafford Act and the NFIA, which authorize the programs that fund the majority of the actions subject to the FFRMS, FEMA has general rulemaking authority.

Further, FEMA has explicit authority under the Stafford Act to set the minimum standards for safe land use and construction standards required in the repair or construction of private and public facilities.

42 U.S.C. 5121

et seq.

42 U.S.C. 4001

et seq.

6 U.S.C. 101

et seq; see also

6 U.S.C. 314(a)(12), which specifically charges the Administrator with supervising various grant programs authorized under the HSA. Such grant programs have long been governed by floodplain management regulations at 44 CFR part 9,

see, e.g.,

44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept. 9, 1980).

See also

Executive Order 13990 (“Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis”), 86 FR 7037, Jan. 25, 2021 (revoking Executive Order 13807).

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

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

(last accessed Jan. 24, 2024).

88 FR 67870, Oct. 2, 2023.

E. Substantive Components of the FFRMS

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

Incorporating the FFRMS will expand the floodplain and require projects to increase their resilience to flooding. Applying the FFRMS will help ensure that Federally funded projects will last as long as intended. In addition, the FFRMS and Revised Guidelines require the evaluation of natural features and nature-based approaches, where possible, in the analysis of practicable alternatives of the decision-making process for all Federal actions. Nature-based approaches can also help minimize an action's impacts to the floodplain and assist in restoring the natural and beneficial functions of floodplains.

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

See

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

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

(last accessed Jan. 24, 2024).

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

•

Approach 1:

•

Approach 2:

Freeboard Value Approach (FVA): Freeboard (1 percent annual chance flood elevation + X, where X is 3 feet for critical actions and 2 feet for other actions);

•

Approach 3:

0.2-percent-annual-chance Flood Approach (0.2PFA): 0.2 percent annual chance flood (also known as the 500-year flood); or

•

Approach 4:

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

See

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

The four approaches are described in further detail below.

FFRMS Approach 1: CISA

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

e.g.,

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

For areas vulnerable to coastal flood hazards, the CISA includes consideration of the regional sea-level rise variability during the lifecycle of the Federal action. This includes use of global mean sea-level-rise scenarios adjusted to the local relative sea-level conditions and would be combined with surge, tide, and wave data using state-of-the-art science in a manner appropriate to policies, practices, criticality, and consequences. For areas vulnerable to riverine flood hazards (

i.e.,

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

See

Revised 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. When the same vertical increase is applied in multiple actions subject to the FFRMS in different areas, the amount of the increase in the horizontal extent of the respective floodplains will depend upon the topography of the area surrounding the proposed location of the action.

FFRMS Approach 3: 0.2PFA

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

FFRMS Approach 4: Update to FFRMS

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

Further Guidance on Application of the FFRMS Approaches to Establishing the Floodplain

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

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

See

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

See

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

F. Summary of the 2023 Proposed Rule and Proposed FFRMS Policy

The proposed rule set forth how FEMA would implement Executive Order 11988, as amended, the FFRMS, and the Revised Guidelines as part of FEMA's floodplain management regulations, while also updating FEMA's 8-step process. The proposed rule included the following provisions, which remain unchanged in this final rule except as indicated in section I.C of this preamble.

Severability

The NPRM proposed to amend § 9.3 to remove the authorities section as redundant and to replace it with a severability section. FEMA did not receive any comments on its proposal to include a severability provision. The proposed severability provision is therefore incorporated in § 9.3 of this final rule without change. FEMA believes that its authority to require an 8-step decision making process and incorporate the FFRMS into it is well-supported in law and policy and should be upheld in any legal challenge. However, in the event that any portion of the proposed rule is declared invalid, FEMA intends that the various provisions of 44 CFR part 9 be severable. The provisions are not so interconnected that the rule's efficacy depends on every one of them remaining in place—implementation of the different provisions is sufficiently distinct that FEMA's aim of updating the 8-step process and incorporating the FFRMS would still be furthered by maintaining the other provisions. For example, if a court were to find unlawful FEMA's inclusion of the FFRMS approaches in § 9.7(c), FEMA intends to retain the inclusion of consideration of nature-based approaches in the appropriate steps of the 8-step decision making process and all other amendments to the 44 CFR part 9 not affected by the court decision. Similarly, if a court were to find unlawful FEMA's chosen approach in the proposed policy, FEMA intends to retain the regulatory changes implementing the FFRMS. Those provisions that are unaffected by a legal ruling can be implemented by an agency without requiring a new round of rulemaking simply to promulgate provisions that are not subject to a court ruling.

Conforming Changes to Definitions

The NPRM proposed to amend § 9.4 to reflect the new definitions required by the FFRMS and Revised Guidelines, while also updating other definitions to clarify terms and leverage common usage that has evolved since the regulation was issued. The most significant definitional change proposed by the FFRMS was the change to the meaning of “floodplain.” To harmonize this change in § 9.4, the NPRM proposed to revise a few existing definitions and removed other definitions. In addition, the NPRM proposed to revise the remaining sections of 44 CFR part 9 that

refer generally to the floodplain or refer specifically to the base (or 100-year) floodplain or the 0.2 percent annual chance (or 500-year) floodplain, for clarity.

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

Step 1 in the 8-step process is to determine whether the proposed action is in the floodplain. Because Executive Order 11988, as amended, and the FFRMS revised the definition of the “floodplain” that agencies use for “Federally funded projects,” the NPRM proposed to revise the first step to require FEMA to determine whether the proposed action falls within the definition of an “action subject to the FFRMS.” Under the proposed rule, if FEMA determined that the action is a Federally funded project,

i.e.,

if FEMA determined that the action uses FEMA funds for new construction, substantial improvement, or to address substantial damage to a structure or facility, the FFRMS floodplain would apply. Alternatively, if FEMA determined that the action did not fall under the definition of an action subject to the FFRMS, the existing floodplain analysis would remain in place. For example, if the action was considered non-critical, the 1 percent annual chance floodplain applied, and if the action was considered critical, the 0.2 percent annual chance floodplain applied.

Emphasis on Nature-Based Approaches

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

Consistent with the Revised Guidelines, FEMA proposed to update the factors integrated into its impact analysis and minimization measures (Step 4 and Step 5) to identify those opportunities for beneficial floodplain and wetland values, to include natural values related factors that prioritize water resource values, living resource values, and agricultural, aquacultural, and forestry resource values. Applying natural features or nature-based approaches as alternatives furthers the goals in 44 CFR part 9 and allows for FEMA to further encourage those actions that increase the natural and beneficial functions of the floodplain.

The NPRM proposed to update Step 1 of the 8-step process to describe the floodplain determination for those actions that are subject to the FFRMS, and Step 3 to require the consideration of natural features and nature-based approaches in the identification and evaluation of practicable alternatives. The NPRM also proposed to incorporate certain additional exclusions from all or some of the 8-steps for certain categories of actions being funded by FEMA. Specifically, FEMA proposed to remove private bridges and debris clearance and removal under section 502 of the Stafford Act from the 8-step process, while also updating the monetary thresholds for actions under sections 406 and 407 of the Stafford Act.

Proposed FFRMS Policy

The proposed FFRMS policy outlined the FFRMS approach FEMA would use for actions subject to the FFRMS. FEMA's proposed FFRMS policy would be applicable to actions in the FFRMS floodplain where FEMA funds were used for new construction, substantial improvement, or to address substantial damage. Specifically, the proposed policy would require FEMA to determine the FFRMS floodplain according to the Climate-Informed Science Approach (CISA) for all locations where the best-available, actionable hydrologic and hydraulic data methods that integrate current and future changes in flooding based on climate science exist. When the CISA data was not available and not actionable for a critical action, the proposed FFRMS policy would require FEMA to determine the FFRMS floodplain as the area that would be inundated by the higher of either the 0.2 percent annual chance flood or the 3 feet of freeboard above the base flood elevation (BFE) for that location (the Freeboard Value Approach or FVA). When the CISA is not available and actionable for a non-critical action, the proposed FFRMS policy would require FEMA to determine the FFRMS floodplain as the area that would be inundated by the lower of either the 0.2 percent annual chance flood or the 2 feet of freeboard above the BFE for that location (the FVA). In coastal areas where the CISA data is not available and actionable, the proposed FFRMS policy would require the FVA be used if the available 0.2 percent annual chance flood elevation does not account for wave action.

FEMA noted in the policy and the NPRM that it was coordinating across the Federal government to develop tools, such as the FFRMS Job Aid published in the public docket associated with this rulemaking,

to assist agencies and stakeholders in determining the FFRMS floodplain and would rely on those tools as the best available information in making its determinations. The FFRMS Job Aid presents a general methodology to identify the FFRMS floodplain for each of the three approaches that relies on information from available FEMA FIRMs, U.S. Geological Survey (USGS) ground elevations, and the 2022 Sea Level Rise Technical Report sea level rise estimates.

See

NPRM, 88 FR 67870, 67900 and FEMA Proposed Policy: Federal Flood Risk Management Standard at pg. 5 (posted to the public docket at

https://www.regulations.gov/document/FEMA-2023-0026-0005

See also https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf

(last accessed Jan. 24, 2024) and posted to the public docket for this rulemaking at

https://www.regulations.gov/document/FEMA-2023-0026-0004.

at Section 1.6.

FEMA's proposed FFRMS policy also required that nature-based solutions and natural features be considered and implemented where possible to all actions that are subject to Step 3 of the 8-step decision-making process and not just those actions subject to the FFRMS. Nature-based solutions and natural features must be considered as an alternative action in Step 3. Where it is not possible to use natural features and nature-based solutions as an alternative on their own, they would be considered in conjunction with the proposed action as a minimization measure in Step 5.

Updated FFRMS Resources

The FFRMS approaches include the CISA, an “approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science.” The Revised Guidelines and Appendix H help to define the “best available and actionable science,” stating that best-available generally refers to science, data or information that is:

• 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; and

• legitimate—perceived by stakeholders to conform to recognized principles, rules, or standards.

Legitimacy might be achieved by existing government planning processes with the opportunity for public comment and engagement.

See

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

Actionable science includes theories, data, analyses, models, projections, scenarios and tools that are:

• 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;

• co-produced by scientists, practitioners, and decisionmakers, and meet the needs of and are readily accessible by stakeholders.

See

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

Appendix H further defines a general framework for the CISA by identifying types of changes that should be considered and discussing the importance of considering operational life; provides an approach for incorporating uncertainty into the CISA; and discusses a range of data sources. The document does not prescribe or direct agencies to use specific resources or methods.

In 2023, the Science Subgroup convened by the Flood Resilience Interagency Working Group of the National Climate Task Force published the FFRMS CISA State of the Science Report (“FFRMS CISA State of the Science Report”).

This report provides a review and update of the best-available, actionable science that can support application of the CISA, reflecting science and technology advancements made since 2015. Like Appendix H from the Revised Guidelines, the FFRMS CISA State of the Science Report provides non-prescriptive, scientific, and engineering guidance for use by Federal agencies, their non-Federal partners, and other entities in determining future flood hazards under the FFRMS' CISA option. The FFRMS CISA State of the Science Report refines the initial framework from Appendix H to define two specific workflows for applying the CISA,

while acknowledging that technical competencies and capabilities needed to fully apply the CISA vary and may exceed those available in most Federal agencies and many non-Federal users.

The Report states that workflow implementation can be scaled to meet resource level and project requirements.

Available 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?trk=public_post_comment-text

(last accessed Mar. 12, 2024).

FFRMS CISA State of the Science Report, Coastal workflow starting on pg. 11 and Riverine workflow starting on pg. 38.

Id.

at pg. 5.

See id.

The FFRMS CISA State of the Science Report specifically identifies the latest sea level rise projections from the National Climate Assessment as actionable.

The FFRMS State of the Science Report states each agency should factor projected regional/local sea level change into Federal investment decisions located as far inland as the extent of estimated tidal influence, now and in the future, using the most appropriate methods for the scale and consequence of the decision.

The FFRMS CISA State of the Science Report also suggests that along low-lying coastal shorelines on the Atlantic and Gulf Coasts not subject to runup or overtopping, the appropriate sea level rise estimates can be used similar to freeboard.

Id.

at pgs. 21-22.

Id.

at pg. 23.

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

See

FFRMS Job Aid, pg. 10.

This is the basis of the interagency implementation and supporting tools such as the FFRMS Job Aid.

The FFRMS Job Aid is a resource to help Federal agencies and their non-Federal partners (including potential Federal financial aid recipients) conduct a screening to determine if a proposed Federally funded action will be located in an FFRMS floodplain, based on the CISA, FVA, or 0.2PFA. While Appendix H of the Revised Guidelines and the FFRMS CISA State of the Science Report provide more general approaches that could be used to apply the CISA with sufficient time, money and expertise,

FEMA does not believe the data and science for these broader approaches are sufficiently available and actionable for FEMA to implement at scale. As explained below, FEMA prioritized the type and criticality of the action involved, the availability and actionability of the data, and equity concerns, and determined that applying the CISA through these broader, more complex approaches is not appropriate at this time given the agency's role in helping people recover from disasters in an expedited manner. FEMA instead decided to use consensus interagency approaches that are readily accessible to implement the CISA.

Available at

https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf

(last accessed Mar. 12, 2024).

FFRMS CISA State of the Science Report, pg.5, Coastal workflow starting on pg. 11, and Riverine workflow starting on pg. 38.

To help FEMA implement the FFRMS, the agency will leverage interagency tools. Specifically, FEMA will follow the methodology laid out in the FFRMS Job Aid to determine whether a site for a proposed action subject to the FFRMS is located within an FFRMS floodplain and if so, the FFRMS flood elevation for that site. FEMA will follow the CISA, FVA, or 0.2PFA Job Aid methodologies according to FEMA's FFRMS policy. Consistent with the FFRMS Job Aid, FEMA finds that the CISA is currently available and actionable for low-lying coastal shorelines on the Atlantic and Gulf Coasts.

If a site poses other complexities, such as steep bluffs or shorelines armored by large seawalls or similar flood-control structures, the CISA is not available and actionable

and FEMA will instead use the FVA or 0.2PFA, per the agency's policy. For the CISA, FVA and 0.2PFA, FEMA will follow the processes outlined in 44 CFR 9.7 and in FEMA Policy 104-008-2: Guidance on the Use of Available Flood

Hazard Information.

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

FFRMS Job Aid, pg. 10.

Id.

Available at

https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf

(last accessed Mar. 12, 2024).

See

FFRMS Policy, pg. 5.

Consistent with the FFRMS Job Aid, to determine whether a proposed site is located within the FFRMS floodplain under the CISA and FVA approaches, FEMA will compare the ground elevation at the site (using the U.S. Geological Survey National Map) with the FFRMS flood elevation.

To identify the FFRMS flood elevation under the CISA and FVA, FEMA will identify the BFE at the site or the BFE at the nearest mapped floodplain if the site is outside of the 1% annual chance floodplain. Any relevant characteristics of the action or site will be noted at this stage (

e.g.,

service life, criticality, and flood characteristics).

For the CISA, FEMA will determine the FFRMS flood elevation by using the NOAA Sea Level Rise Viewer.

FEMA will use the service life of the action to select the scenario year.

For non-critical actions, FEMA will use the intermediate scenario, and for critical actions, FEMA will use the intermediate high scenario.

FEMA will then add the appropriate amount of sea level rise to the BFE to reach the FFRMS CISA flood elevation. If the site elevation is less than the CISA flood elevation, then the site is in the FFRMS CISA floodplain. For the FVA, 2 feet will be added to the BFE for non-critical actions or 3 feet for critical actions to determine the FFRMS FVA flood elevation.

If the site elevation is less than the FVA flood elevation, then the site is in the FFRMS FVA floodplain.

For the 0.2PFA, FEMA will compare the location of the site with the horizontal extent of the 0.2 percent annual chance floodplain using the FEMA Map Service Center or National Flood Hazard Layer.

If the site is within the floodplain, then it is within the FFRMS 0.2PFA floodplain.

FFRMS Job Aid, pgs. 8-9.

FFRMS Job Aid, pgs. 8-9 and pgs.13-15.

Id.,

pgs. 20-23.

Id.

FFRMS Job Aid, pg. 21.

FFRMS Job Aid, pg. 8.

Id.,

pgs. 8-9

Id.,

pgs. 30-31.

Id.

FEMA published these additional resources in the public docket with this rulemaking

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

See https://www.regulations.gov/document/FEMA-2023-0026-0007

and

https://www.regulations.gov/document/FEMA-2023-0026-0004.

89 FR 25674 (Apr. 11, 2024).

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

This final rule implements Executive Order 11988, as amended, the FFRMS, and the Revised Guidelines, while also updating FEMA's 8-step process. Consistent with the changes proposed in the NPRM, FEMA is incorporating a severability clause into part 9; updating definitions to implement the FFRMS and reflect current policy and practice; providing the applicable effective date for the changes made in the final rule and further clarifying the rule's scope; updating how FEMA determines whether an action is in a floodplain, consistent with the FFRMS approaches when the action is subject to the FFRMS; and adding an emphasis on nature-based approaches in the 8-step process consistent with Executive Order 11988, as amended.

In this final rule, FEMA incorporates edits to reflect commenter feedback. Specifically, in § 9.7(c)(3), FEMA is adding agencies from Federal and Indian Tribal governments as potential sources of information in making the floodplain determination. These changes better ensure that FEMA will effectively consider relevant and appropriate data in making the floodplain determination under part 9. FEMA is also making clarifying edits in § 9.5(a)(3) to clarify that copies of the legacy regulations will be available on the agency's website and to § 9.7(c)(3) to clarify that FEMA may consider information from the entities listed. FEMA is also making minor technical edits in § 9.7(c)(1)(i)(C) and § 9.11(d)(3)(ii).

FFRMS Policy

FEMA's FFRMS policy is also being finalized with the publication of this rule and will be effective with the rule's implementation. The FFRMS policy provides guidance on how FEMA will implement the FFRMS across FEMA's programs and further incorporate nature-based solutions into the 8-step process. FEMA is making minor clarifying edits to the FFRMS policy consistent with commenters' suggestions by further clarifying the use of the 0.2PFA in coastal areas and making other technical edits to the document for readability. FEMA is also clarifying in the FFRMS policy that the agency will leverage the FFRMS Job Aid when implementing the FFRMS.

III. Discussion of Public Comments and FEMA's Responses

A. Summary of Public Comments

The NPRM public comment period closed on December 1, 2023, and FEMA received 47 germane comments.

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

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

B. Comments in Support of the Rule

The majority of commenters were generally supportive of the rule and accompanying FFRMS policy.

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

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

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

adaptive strategies based on the best-available scientific knowledge. Another commenter supported the floodplain definition revisions, stating that an expanded floodplain definition would ensure that more projects were built with resilience in mind when compared to current projects. A commenter stated FEMA's preferred CISA approach would result in Federally funded projects that were more resilient to current and future flooding and ensured a wiser use of taxpayer dollars. The commenter stated stronger standards were feasible to implement, as many jurisdictions already have existing stronger building and land-use standards. Commenters also indicated support for FEMA's emphasis on using natural systems, ecosystem processes, and nature-based approaches.

Timing

Comment:

Some commenters supporting the rule requested FEMA quickly finalize and implement the final rule. While requesting FEMA work quickly to finalize and implement the rule, one commenter noted that the partial implementation policies in place did not fully implement FFRMS as they did not extend the horizontal floodplain. This commenter requested FEMA also integrate FFRMS into the minimum floodplain management standards for the NFIP. The commenter also stated FEMA should ensure FFRMS was sufficiently staffed and should develop a comprehensive plan to track enforcement and any concerns such as environmental justice to ensure effective implementation of the rule.

FEMA Response:

FEMA agrees with the commenters on the importance of finalizing and implementing the rule and FFRMS policy. FEMA is issuing this final rule with an effective date of September 9, 2024. As explained in § 9.5(a)(3), the FFRMS applies only to new actions for which assistance is made available pursuant to declarations under the Stafford Act that are commenced on or after the effective date of the final rule, and new actions for which assistance is made available pursuant to notices of funding opportunity that publish on or after the effective date of the final rule.

Note that FEMA first partially implemented the FFRMS by policy with respect to covered projects in existing floodplains in its Public Assistance and Hazard Mitigation Assistance programs.

See

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

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

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

(last accessed Jan. 24, 2024). Some current FEMA actions may be subject to these partial implementation policies; however, those actions would not be subject to this final rule or policy.

FEMA declines to accommodate the commenter's request to integrate the FFRMS into the minimum floodplain management standards for the NFIP because it is beyond the scope of this rulemaking. The NFIP is a program through which property owners in participating communities can purchase Federal flood insurance as a protection against flood losses.

As a condition of eligibility, a community must adopt and enforce floodplain management regulations that meet or exceed the NFIP minimum floodplain management criteria developed by the Administrator.

Further information regarding FEMA's minimum floodplain management standards for the NFIP can be found at 44 CFR part 59

et seq.

Because this rule only applies to “actions subject to the FFRMS,”

100

this rule does not change any FEMA standards applicable to community or individual participation in any aspect of the NFIP. In general, changes to 44 CFR part 59 et seq would require a rulemaking to revise the appropriate sections of the CFR.

42 U.S.C. 4011(a).

42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b), 59.22(a)(3), 60.1(d).

100

See

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

(main content) and

https://www.regulations.gov/document/FEMA-2015-0006-0372

(appendices)) also available at

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

(last accessed Mar. 11, 2024).

As an illustrative example, if an NFIP-participating community owns a structure in a floodplain that has been substantially damaged and the community decides to repair it using community funds, funding from a flood insurance payment, or other funding that is not FEMA grant funding, the community's floodplain management regulations, not the FFRMS, would apply to the repair project. However, if that same structure was substantially damaged by a disaster event, and the community applied for assistance under a FEMA grant program like the Public Assistance program, the FFRMS would apply to that repair project.

FEMA agrees with the commenter that it is important to adequately staff for FFRMS implementation. FEMA is accordingly ensuring that sufficient staff at headquarters and regional offices are appropriately trained to provide technical assistance. FEMA currently leverages the 8-step process detailed in 44 CFR part 9 as the mechanism to implement Executive Order 11988. Step 8 of the process found at 44 CFR 9.6(b) requires FEMA to review the implementation and post-implementation phases of the proposed action to ensure that the requirements stated in § 9.11 are fully implemented. Under this provision, oversight responsibility is integrated into existing processes associated with FEMA's grant management requirements. FEMA is not making changes to these requirements in the final rule and will continue to use the current process to ensure compliance with the FFRMS and Executive Order 11988, as amended. 2 CFR 200.339 also allows FEMA to take action to remedy a recipient's noncompliance with federal requirements, including those required by 44 CFR part 9, such as imposing new conditions on the award or deobligating funding for the award if a recipient does not adhere to the requirements set forth during the part 9 review process.

C. Comments in General Opposition to the Rule

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

stated Congress should define the floodplain. This commenter raised similar concerns regarding the use of the CISA and lack of data sources that map the FFRMS floodplain. FEMA responds to some of the general comments in opposition to the rule in the comment summaries and responses immediately below and responds in more detail to the remainder of the comments in the following sections of the preamble.

Comment:

One commenter requested FEMA extend the comment deadline associated with the rule for an additional 60 days. The commenter requested an extension of the comment period given the complexity of the rule and policy and to implement extensive public outreach.

FEMA Response:

FEMA received 48 comments to the public docket associated with this rulemaking and no other requests to extend the comment period were received. The 60-day comment period provided is consistent with 44 CFR 1.3(b) and Executive Orders 12866 and 13563. This timeframe provided a reasonable opportunity for public comment and is particularly appropriate given FEMA's prior engagement on this topic. FEMA completed extensive outreach in 2015 as part of the development and publication of the Revised Guidelines, and also sought public input in connection with the agency's prior NPRM in 2016.

101

Additional outreach will be completed as part of the rule's implementation as FEMA will distribute additional information to SLTT partners and the public explaining again what the FFRMS is and how the agency will further implement the Executive Orders. FEMA's FFRMS policy will also be reassessed on a four-year cycle to ensure the approach continues to meet the goals of Executive Order 11988, as amended. During the four-year review process, FEMA's FFRMS policy will be reviewed, revised, extended, and/or rescinded as appropriate.

101

Established by the 2013 Climate Action Plan, the Climate Task Force met with stakeholders from State, local, Tribal, and territorial governments; private businesses; trade associations; academic organizations; civil society; and other stakeholders to develop and provide recommendations in November 2014. President's State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience,

Recommendations to the President,

(2014), available at

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

at 7 (last accessed Jan. 24, 2024). FEMA, acting on behalf of the MitFLG and consistent with Executive Order 13690, published a draft of the Revised Guidelines for notice and comment on February 5, 2015 at 80 FR 6530. During the public comment period, over 25 meetings were held across the country with State, local, and Tribal officials and interested stakeholders to discuss the Revised Guidelines. There were also 9 public listening sessions across the country that were attended by over 700 participants from State, local, and Tribal governments, and other stakeholder organizations to discuss the Revised Guidelines. The final Revised Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA published a notice of proposed rulemaking to implement FFRMS initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice of availability and request for comment on a FFRMS policy at 81 FR 56558 (Aug. 22, 2016) and a notice of availability regarding a draft report at 81 FR 64403 (Sept. 20, 2016).

FEMA does not believe additional engagement is needed to finalize this rule. All but a few of commenters expressed support for the rule and FEMA's FFRMS policy and many requested swift implementation, consistent with the need to protect federal dollars and communities from increasing flood risk.

Comment:

One commenter stated the rulemaking was premature in the absence of a clearly defined process for implementing the CISA and urged FEMA to withdraw the rule from consideration. The commenter expressed concern that FEMA will take a haphazard approach—completing each analysis of the extent and elevation of the CISA floodplain on a case-by-case basis and doing so using data that may not be complete or is not be widely known or available to the public. The commenter stated that in the end, neither the process nor the outcome will be predictable or replicable.

FEMA Response:

FEMA disagrees. This rulemaking is not premature, and FEMA provided information in and accompanying the NPRM explaining how the CISA and the FFRMS will be implemented. Each analysis will be completed on a case-by-case basis consistent with the current 8-step process, which has been in place for over four decades, to determine the floodplain, but the data used to make the analysis is publicly available and replicable using the FFRMS CISA State of the Science Report, the FFRMS Job Aid, and FEMA's FFRMS policy. As explained above, the FFRMS CISA State of the Science Report identifies the latest sea level rise projections from the National Climate Assessment as available and actionable data and the appropriate sea level rise estimates can be used to approximate future 1 percent annual chance flood levels. These estimates can simply be added to the current 1 percent annual chance flood elevation to approximate the future 1 percent annual chance flood level, in low-lying coastal shorelines on the Atlantic and Gulf Coasts not subject to runup or overtopping. The FFRMS Job Aid

102

provides the methodology FEMA will use to determine the floodplain and elevation under the CISA where data is actionable and available (namely in low-lying coastal shorelines on the Atlantic and Gulf Coasts consistent with the FFRMS CISA State of the Science Report). FEMA's FFRMS policy further explains that the CISA is used where actionable and available and provides alternatives where such data is not actionable and/or available. The CISA analysis can be completed using these publicly available materials for areas with actionable and available data. FEMA anticipates actionable and available data will increase over time and the interagency tools provided will be updated to reflect the new data.

102

Available at

https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf

(last accessed Mar. 12, 2024).

Comments:

Two commenters requested FEMA complete additional analyses before finalizing the rule. Both commenters referenced other flood-related regulatory and policy actions, including the Technical Mapping Advisory Council (TMAC)'s proposal to increase the regulatory floodplain and increase the NFIP floodplain management standards for land management and use; Risk Rating 2.0 for flood insurance premiums; and USACE's proposed levee safety updates as well as risk informed decision making.

One commenter requested the rule be deferred until FEMA completed a cumulative impacts assessment and considered associated actions to mitigate the impacts of the actions above on communities participating in the NFIP, mapping and accreditation, low to moderate income families, and disadvantaged communities. The commenter further requested FEMA withdraw the rule until a regulatory analysis applying sound cost-benefit analysis principles and a comprehensive socio-economic impact analyses to address the full and intended scope of FFRMS were completed. The commenter stated the regulatory impact analysis should address cumulative impacts and the need for mitigation of impacts to community property values, tax bases, the distribution of real income, as well as the impacts on affordable housing and low to moderate income families and disadvantaged communities.

The other commenter stated that different flood regulations and policies may overlap with or duplicate each other and potentially lead to redundancy, confusion, and additional costs. The commenter requested FEMA conduct a more thorough quantitative cost-benefit analysis, considering the

cumulative effects of recent floodplain governing rules to make well informed decisions regarding appropriate risk reduction strategies and ensure a thorough understanding of the overall impact of the rule's implementation. The commenter requested FEMA conduct a comprehensive assessment of cumulative impacts to ensure a more informed and coordinated approach and requested that FEMA provide additional documentation on how FFRMS would impact other Federal agencies' programs, such as USACE's civil works projects and whether FEMA's FFRMS policy would supersede other Federal agencies' rules and regulations. The commenter stated FEMA relied on a subjective assessment of the rule's costs and benefits. The commenter asked FEMA to closely coordinate with other agencies that typically co-regulate projects, including USACE with water resources projects.

The commenter also stated that the FFRMS could lead to further deterioration of key infrastructure, where meeting the new, higher standards is not technically or financially feasible, resulting in communities leaving the infrastructure to deteriorate in place and not serve the public need. The commenter stated that these types of costs should be considered in the regulatory analyses.

FEMA Response:

FEMA disagrees this rule should be deferred. While FEMA understands the commenters' interest in the policy activities mentioned, the agency does not believe those actions are relevant to this rulemaking or require additional analysis to finalize this rule. The commenters reference a recommendation made by the TMAC in a recent annual report

103

that FEMA expand the NFIP regulatory floodplain as defined in 44 CFR 59.1 to which the NFIP's minimum floodplain management criteria set forth in 44 CFR 60.3 applies, and the commenters suggest that FEMA must delay this rulemaking until it has analyzed the effects of that recommendation. That is not necessary because FEMA has not implemented the TMAC recommendation and therefore it has no current effect on communities. The TMAC is a Federal advisory committee established to review and make recommendations to FEMA on matters related to the national flood mapping program authorized under the Biggert-Waters Flood Insurance Reform Act of 2012.

104

The national flood mapping program requires FEMA to review, update, and maintain NFIP rate maps.

105

It is outside the scope of this rule.

103

TMAC 2023 Interim Report, available at

https://www.fema.gov/sites/default/files/documents/fema_rm-tmac-2023-interim-report-30OCT2023.pdf

(last accessed Mar. 28, 2024).

104

42 U.S.C. 4101a.

105

42 U.S.C. 4101b.

The commenters also refer to the NFIP's pricing approach

106

for NFIP policyholders as a new “flood regulation” that requires analysis prior to finalizing this rulemaking. However, this rulemaking does not impact the NFIP's site-specific actions, such as how FEMA rates the premium for a flood insurance policy. Further, the population of NFIP policyholders is much larger than the number of FEMA grant recipients who will be impacted by this rule.

106

Also known as Risk Rating 2.0, Equity in Action.

See https://www.fema.gov/flood-insurance/risk-rating

(last accessed Mar. 18, 2024).

One commenter states FEMA needs to account for how the rule will impact mapping and accreditation under the NFIP; however, the rule does not appreciably impact those areas of the NFIP. This rule and the accompanying policy implement the FFRMS for actions where FEMA funds are used for new construction, substantial improvement or repairs to address substantial damage, and requires that nature-based solutions and natural features be considered and implemented where possible to all actions that are subject to Step 3 of the 8-step decision-making process. Nature-based solutions and natural features must be considered as an alternative action in Step 3. Where it is not possible to use natural features and nature-based solutions as an alternative on their own, they would be considered in conjunction with the proposed action as a minimization measure in Step 5. Neither FEMA's flood mapping program nor its accreditation of levees under the NFIP are actions subject to the FFRMS and, to the extent that any programmatic or policy change to either of those areas are required to undergo the 8-step process under 44 CFR part 9, it is unlikely that a consideration of nature-based solutions will result in changes with demonstrable impacts. FEMA cannot address the other actions referenced, such as the USACE's civil works projects and levee safety updates, as these involve other Federal agencies, and questions regarding those actions are best addressed by those agencies directly.

FEMA believes that the commenter's concerns about this rule's economic impacts is inconsistent with this rule's relatively limited applicability. FEMA defines an “action subject to the FFRMS” as “any action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility,” consistent with Executive Order 11988, as amended, and the Revised Guidelines. The FFRMS applies to grants for projects funding the new construction, substantial improvement, or repair of substantial damage under FEMA programs such as the IA, PA, and HMA programs, and grants processed by FEMA's Grants Programs Directorate (GPD) (involving grants for preparedness activities). This rule does not regulate privately funded activity in the floodplain. As such, the implementation of the FFRMS will have negligible impacts on community property values, tax bases, and the distribution of real income. Additionally, FEMA expects the impacts on affordable housing for low to moderate income households and disadvantaged communities to be minimal since most actions subject to FFRMS requirements are non-residential. FEMA only funds residential construction in the IA and HMA programs; FEMA funds 153 residential IA projects and 268 HMA residential projects per year on average. The majority of the costs associated with FFRMS requirements will be covered by FEMA funding.

Comment:

A commenter stated the FFRMS policy and rule were one-sided, as they limited how people could use and live in flood-prone areas without a clear goal to support economic growth or sensible development within reasonable limits. The commenter stated Congress likely would not endorse a flood risk strategy that did not consider using flood-prone areas optimally for the country's benefit. The commenter stated the rule's benefits were unclear given the emphasis on constraints and a lack of consideration for economic development as part of resilience. The commenter recommended that FEMA adjust the policy to include efficient and smart use of flood-prone areas while acknowledging the limitations on development.

FEMA Response:

The revisions to part 9 are consistent with FEMA's long-standing requirement as part of implementation of Executive Order 11988, as amended, to only perform or fund actions within or affecting floodplains and wetlands if those actions are the only practicable alternative. FEMA's regulations provide for consideration of the need for economic development and community resilience, while also bolstering the resilience of communities and Federal

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

D. FEMA's Authority for Part 9 and Revisions

Two commenters wrote comments concurring with FEMA's statutory and other authority for the rulemaking.

Comments:

Both commenters stated the rule was a valid use of FEMA's regulatory authority, citing to the NFIA, as amended by the Flood Disaster Protection Act (42 U.S.C. 4001

et seq.

), the Stafford Act (42 U.S.C. 5121

et seq.

), and the NEPA (42 U.S.C. 4321

et seq.

). One commenter noted the Congressional intent in the Stafford Act for the Federal Government to develop land use and construction regulations to help State and local governments mitigate risk and reduce losses and FEMA's broad discretion to define “safe land use and construction practices” as a condition of Stafford Act funding for both public and private structures.

107

The commenter stated section 101 of NEPA required FEMA to use all practicable means to ensure Federal plans, programs, and resources “(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; [and] (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences” among other priorities.

108

The commenter stated the FFRMS reflects a tradition of executive action to enforce reasonable floodplain management and wetland protection. Another commenter noted the NFIA and Flood Disaster Protection Act require FEMA to establish land use criteria for floodplain management

109

and that NEPA requires Federal agencies to evaluate the environmental and related social and economic effects of their proposed actions, which includes the evaluation of the impacts of proposed actions in the floodplains.

110

Further, the commenter stated the Stafford Act directed FEMA to encourage “hazard mitigation measures to reduce losses from disasters, including development of land use and construction regulations.”

111

The commenter stated FEMA's regulations were consistent with these legislative directives.

107

42 U.S.C. 5165a.

108

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

109

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

110

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

111

42 U.S.C. 5121(b)(5).

FEMA Response:

FEMA agrees with the commenter that the agency has statutory authority to implement FFRMS. Please refer to section II.B for a description of FEMA's statutory authority to implement grant programs and to require its grant recipients to carry out repairs or construction in accordance with specific standards.

Three commenters raised concerns regarding FEMA's legal authority to amend part 9 and implement FFRMS.

Comment:

One commenter stated Congress should establish the definition of floodplains. The commenter acknowledged defining the geographic scope of a floodplain was not an easy task, but stated the implications on landowners and others made it a job best left for Congress. The commenter stated that Congress drafted and debated language over the last twenty plus years on the issue and stated that Congress has had the opportunity to revisit and refine Federal floodplain policies as part of NFIP regular reauthorization process. The commenter stated it was bad public policy to delegate defining the limits of Federal authority to the agencies, citing to challenges other agencies have had defining “waters of the United States” and reiterating the need for Congressional action.

FEMA Response:

This comment appears to confuse the definition of floodplain under the NFIP with the definition of floodplain that is being altered with this rulemaking, and, as such, makes incorrect statements and assumptions about the role Congress has played or should play. This rulemaking is not altering the definition of floodplain under the NFIP. The NFIP is a program through which property owners in participating communities can purchase Federal flood insurance as a protection against flood losses.

112

As a condition of eligibility, a community must adopt and enforce floodplain management regulations that meet or exceed the NFIP minimum floodplain management criteria developed by the Administrator.

113

The floodplain and other definitions governing the NFIP can be found at 44 CFR 59.1. This rulemaking is updating the definition of floodplain in 44 CFR part 9 as applied to actions subject to the FFRMS, defined as actions where FEMA funds are used for new construction, substantial improvement, or repairs to address substantial damage to structures and facilities.

114

As set forth, in section II.B, Congress has authorized FEMA to implement grant programs and to require its grant recipients to carry out repairs or construction in accordance with specific standards.

112

42 U.S.C. 4011(a).

113

42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b), 59.22(a)(3), 60.1(d).

114

See

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

(main content) and

https://www.regulations.gov/document/FEMA-2015-0006-0372

(appendices)) also available at

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

(last accessed Mar. 11, 2024).

Comment:

Two commenters requested FEMA cite the specific and clear Congressional authority for each objective and mandate of FFRMS. Both commenters noted the President may have the authority to impose mandates on Federal projects as cost-saving measures, but regulation of private and non-Federal activities within the floodplain was limited to those jurisdictions where local communities have imposed upon themselves the burden of floodplain regulation as a condition of participation in the NFIP. The commenters stated that applying the FFRMS to private and non-Federal government entities under other regulatory programs was outside FEMA's statutory authority.

FEMA Response:

Please refer to section II.B for a description of FEMA's statutory authority to implement grant programs and to require its grant recipients to carry out repairs or construction in accordance with specific standards. Contrary to the commenter's assertions, this rule applies the FFRMS to FEMA funded projects for new construction, substantial improvement, and repairs to address substantial damage. It does not regulate privately funded activity in the floodplain, it does not alter the definition of floodplain under the NFIP, and it does not apply

the FFRMS to any programs other than FEMA's grant programs.

Comment:

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

Sackett

EPA.

115

Sackett

EPA,

598 U.S. 651 (2023).

FEMA Response:

FEMA disagrees the aggregate economic impacts over time associated with this rulemaking are a matter of such “deep economic and political significance” as to constitute a “major question,” as described by the Supreme Court in

West Virginia

EPA

116

While FEMA expects that this rule would carry important benefits and would ultimately save significant taxpayer dollars, this rule is not akin to the rule in

West Virginia,

where the agency's “own modeling concluded that the rule would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors.”

117

This rulemaking requires FEMA grant recipients to build a subset of the construction projects that FEMA funds to a higher standard in an expanded floodplain. There is an increase in the costs associated with this more resilient building standard, but that increase is paid primarily by FEMA and is ultimately a fraction of what grant recipients might already spend using Federal funds to accomplish such construction.

116

142 S. Ct. 2587 (2022).

117

Id.

at 2604.

Even if the major questions doctrine did apply, there is clear statutory authority and longstanding precedent for the rule. FEMA has authority to require application of the FFRMS as a condition of funding in its grant programs based on the grant programs' authorizing statutes. Congress granted FEMA the authority to provide Federal assistance through multiple grant programs under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act),

118

the NFIA,

119

the Homeland Security Act of 2002,

120

the Federal Fire Prevention and Control Act of 1974,

121

the Earthquake Hazards Reduction Act of 1977,

122

123

Under the Stafford Act and the NFIA, which authorize the programs that fund the majority of the actions subject to the FFRMS, FEMA has general rulemaking authority.

124

125

Further, in the time since Executive Order 11988 was first issued in 1977 and FEMA issued its implementing regulations at 44 CFR part 9 in 1979 and 1980, Congress has amended FEMA's governing authorities multiple times without overriding part 9.

126

Consistent with the approach that FEMA has taken for decades, this rule revises part 9 pursuant to FEMA's statutory authorities and in line with Executive Order 11988, as amended.

118

42 U.S.C. 5121

et seq.

119

42 U.S.C. 4001

et seq.

120

6 U.S.C. 101

et seq; see also

see, e.g.,

44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept. 9, 1980).

See also, e.g.,

121

15 U.S.C. 2229 and 2229a.

122

42 U.S.C. 7701

et seq.

123

See, e.g.,

124

See

42 U.S.C. 5164; 42 U.S.C. 4128(a) and (b).

125

42 U.S.C. 5165a(a)(1)-(2).

126

See, e.g.,

Disaster Mitigation Act of 2000, Public Law 106-390, 114 Stat. 1552 (Oct. 30, 2000); Post-Katrina Emergency Management Reform Act of 2006, Public Law 109-295, 120 Stat. 1452 (Oct. 4, 2006); Sandy Recovery Improvement Act of 2013; Public Law 113-2, 127 Stat. 47 (Jan. 29, 2013); Disaster Recovery Reform Act of 2018, Public Law 115-254, 132 Stat. 3448 (Oct. 5, 2018).

Finally, the comments related to wetlands and the Supreme Court's decision in

Sackett

EPA

are not germane to this rulemaking. FEMA's proposed changes to the definition of wetlands within the regulation was limited to reorganizing the placement of examples within the definition and removing an outdated resource. FEMA's proposed changes do not change how the agency makes wetland determinations.

E. Definitions

FEMA received over 40 specific comments on the proposed rule's definitions in § 9.4. Commenters were generally supportive of the proposed revisions but sought clarification or offered suggestions to enhance the definitions provided in the proposed rule. FEMA has carefully reviewed the commenters' suggestions and is not revising the NPRM definitions in this final rule but is providing multiple clarifications below.

1. General Comments on Definitions

Comments:

Commenters requested additional clarity regarding definitions and additional engagement on definitions generally. A commenter requested FEMA provide clear definitions and describe abbreviations before they are used in the rulemaking, policy, and any additional guidance or resources provided. The commenter provided an example of the term “AC floodplain” used in a graphic without definition. Another commenter requested FEMA engage stakeholders from a range of relevant backgrounds in the review process to gather varied perspectives and ensure that definitions are clear and universally understood.

FEMA Response:

FEMA will distribute additional resources to the public and SLTT partners after the rule's publication to ensure that stakeholders understand what the FFRMS is and how the agency will implement the revised part 9. These resources will include additional examples to help applicants better understand the FFRMS as they apply for FEMA programs. FEMA appreciates the

commenter's concern and has updated Figure 1 in the FFRMS policy to clarify “AC floodplain” means “annual chance floodplain.”

FEMA engaged stakeholders as part of the development and publication of the Revised Guidelines, which contain most of the definitions FEMA uses in this rulemaking. Stakeholders also provided specific feedback on the definitions in § 9.4 as part of this rulemaking effort and FEMA addresses their concerns in this final rule.

2. 0.2PFA

Comment:

A commenter expressed support for the definition of the 0.2 percent annual chance flood elevation (0.2PFA), agreeing with the use of the terminology similar to annual exceedance probability for defining flow, floodplains, and water surface elevation in the floodplain.

FEMA Response:

FEMA appreciates the commenter's consideration of the definition.

3. Agency

Comment:

One commenter requested clarification on how the term “agency” was defined under part 9.

FEMA Response:

FEMA defines “agency” in § 9.4 as “the Federal Emergency Management Agency (FEMA).” FEMA is not changing the definition of “agency” in this final rule.

4. Critical Action

Comments:

Five commenters asked FEMA to further clarify the definition of “critical action,” stating the definition was too vague and left too much room for interpretation. Commenters asked for a list of examples of critical actions to support the definition in § 9.4 and/or sufficient information to distinguish between critical and non-critical actions. One commenter asked FEMA to provide examples related to the transportation sector and recommended roadways, bridges, and culverts not be considered critical actions. One commenter requested a process for local representatives to provide input on what constitutes critical action/critical facilities.

FEMA Response:

FEMA's definition of “critical action” is consistent with Executive Order 11988, as amended, through the 1978 Guidelines and further clarified in the Revised Guidelines. FEMA notes the term “critical action” is not new but was developed and implemented initially with Executive Order 11988 in 1977. The Revised Guidelines provide further details on what constitutes a critical action. FEMA will leverage the information in the Revised Guidelines when providing additional guidance to stakeholders. The determination of whether an action to create or extend the useful life of a structure or a facility is a critical action is generally made on a case-by-case basis consistent with the information found in the Revised Guidelines. Local representatives have input on whether a particular action is a “critical action” as part of the agency's 8-step process.

5. Federal Action

Comment:

Two commenters sought clarification on the term “Federal action.” Commenters sought clarification on what is a “Federal action” subject to the FFRMS and stated confusion and inconsistency could result among different Federal agencies and programs implementing the FFRMS. One commenter asked for additional clarification on whether specific FEMA programs were subject to the FFRMS. That commenter also sought clarification on how the FFRMS would interact with other Federal laws and regulations that govern floodplain management, such as the NFIP, NEPA, and the Endangered Species Act (ESA).

FEMA Response:

In this rulemaking, FEMA revises § 9.4 to define “action subject to the FFRMS” as “any action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility.” As explained above, the requirements of this rule apply to grants for projects funding the new construction, substantial improvement, or repair of substantial damage under FEMA programs such as IA, PA, and HMA programs, and grants processed by FEMA's GPD.

Part 9 only applies to FEMA actions. Other Federal agencies will implement FFRMS through their own regulations and/or policies. To ensure consistency, all Federal agencies will utilize the Revised Guidelines in their own FFRMS implementation. Per 44 CFR 9.11(d)(6), no action may be taken if it is inconsistent with the NFIP or any more restrictive Federal, State, or local floodplain management standards.

FEMA funding actions are also evaluated pursuant to the NEPA, ESA, and other environmental and historic preservation requirements. The Federal action will not be approved unless it meets all applicable environmental and historic preservation requirements.

6. Floodplain

Comments:

A commenter requested FEMA coordinate with the agency's TMAC to ensure the new rule's definition of “floodplain” in § 9.4 accounts for potential changes in the definition and mapping of floodplains recommended by the TMAC. Another commenter asked how the floodplain would be defined in the FFRMS and if the floodway would be considered a regulatory floodplain. The commenter stated it was unclear how the expanded horizontal FFRMS floodplain would impact future State Department of Transportations' maintenance work in coordination with the Federal Highway Administration (FHWA).

FEMA Response:

FEMA appreciates the commenter's concerns. The purpose of TMAC is to provide analysis under the NFIA. The requirements of Executive Order 11988, as amended, are distinct from TMAC recommendations and thus FEMA disagrees with the commenter that coordination with TMAC is required to finalize this rule. As explained above, the TMAC is a Federal advisory committee established to review and make recommendations to FEMA on matters related to the national flood mapping program authorized under the Biggert-Waters Flood Insurance Reform Act of 2012.

127

The national flood mapping program requires FEMA to review, update, and maintain NFIP rate maps.

128

While the framework FEMA uses in part 9 is distinct from mapping recommendations for flood prone areas TMAC made in their recent annual report, FEMA believes that the flexibility outlined in 44 CFR 9.7 and the practice of using the best available information will allow the application of part 9 to adjust to any change made in the mapping process should FEMA adopt any of the TMAC recommendations.

127

42 U.S.C. 4101a.

128

42 U.S.C. 4101b.

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

7. Nature-Based Approaches

While some commenters expressed support for the definition of “nature-based approaches” in the rule, other commenters requested specific revisions.

Comment:

One commenter stated the definition of “nature-based approaches” failed to take into account a design intent to protect or restore natural processes; and did not include reference to hybrid gray/green solutions that might be required for restoring habitat, attenuating floods, and keeping communities safe. The commenter suggested a definition closer to the “nature-based solutions” definition published on FEMA's website. The commenter requested FEMA work with other Federal agencies to agree on common definitions for key terminology. Further, the commenter recommended that FEMA remove language stating that nature-based approaches “generally, but not always, must be maintained in order to reliably provide the intended level of service,” because maintenance requirements are highly variable and are also generally necessary to maintain grey infrastructure. The commenter stated that “nature-based solutions specifically aim to work with nature (as opposed to grey infrastructure solutions that often are designed to control or work against nature processes) and therefore can be less susceptible to catastrophic failure or repeated maintenance and can require lower maintenance costs overall.” This commenter also requested FEMA include “green infrastructure” when describing the definition. The commenter recommended FEMA include a broader range of ecosystem-based activities in the description of natural and nature-based actions, especially those more appropriate for larger or more rural floodplains. The commenter provided specific scenarios of nature-based approaches.

FEMA Response:

FEMA appreciates the commenter's concerns and believes the definition as written is appropriate. The definition is consistent with the glossary definition in the Revised Guidelines. The Revised Guidelines provide broad guidance in implementing Executive Order 11988, as amended and “offer a common point of reference so that each agency can use or amend their procedures as appropriate.”

129

Consistency with the Revised Guidelines definition helps ensure more consistent implementation of nature-based approaches across the Federal government and meets the commenter's request for FEMA to utilize common terminology with other Federal agencies. Changes such as those proposed by the commenter would increase the potential for inconsistency and stakeholder confusion working on projects involving multiple Federal agencies.

129

Revised Guidelines at pg. 13.

FEMA notes that the Revised Guidelines state that nature-based approaches can restore natural processes, and the agency does not believe the definition excludes either protecting or restoring natural processes. For purposes of part 9, nature-based solutions are specific to floodplains and wetlands, and the commenter's references to nature-based solutions on the agency's website reflects the full range of natural hazards FEMA programs may mitigate. Regarding maintenance, FEMA believes the language is appropriate in the definition as written. The use of “maintenance” is to differentiate between nature-based approaches and natural features. Nature-based approaches are designed to mimic natural processes, but they are not wholly naturally occurring. As such, they may require some form of maintenance to ensure they are performing as intended. In comparison, natural features are those characteristics of the environment that are naturally occurring and exist in a dynamic equilibrium, so should require little to no maintenance in serving their purpose. FEMA understands the commenter's concern that “green infrastructure” is more expansive than stated in the NPRM and plans to provide additional resources that will incorporate examples to address some of the specific scenarios raised by the commenter. FEMA notes the definition of “nature-based approaches” states that nature-based approaches are sometimes referred to as “green infrastructure.”

Comments:

Two other commenters requested edits to the definition of “nature-based approaches” to incorporate restoration and conservation of natural systems. The commenters stated that such edits would ensure all relevant nature-based approaches are adequately considered. Another commenter recommended expanding the definition of “nature-based approaches” by removing the reference to “green infrastructure” at the beginning of the definition and incorporating the statement “Nature-based approaches include green infrastructure practices, as well as conservation approaches such as the restoration of wetland and floodplain hydrology and other river processes” into the definition while also revising the language regarding maintenance to state such approaches can be self-sustaining or need ongoing maintenance.

FEMA Response:

While FEMA appreciates the commenters' concerns to include restoration or conservation of naturally occurring systems and processes and concerns related to green infrastructure, FEMA's definitions are consistent with the glossary definition in the Revised Guidelines and the changes proposed by the commenters could result in inconsistencies including inconsistent implementation across other Federal agencies. As explained above, the Revised Guidelines help ensure key terminology is consistent across Federal agencies implementing FFRMS. The Revised Guidelines state that nature-based approaches can restore natural processes, and FEMA does not believe the definition excludes restoring or conserving natural systems. FEMA will provide additional resources with additional examples of nature-based approaches including more information on green infrastructure to address the commenters' concerns. FEMA will also coordinate with other Federal agencies regarding the use of nature-based solutions as part of the FFRMS implementation.

FEMA appreciates the commenter's suggestion to specifically reference “the restoration of wetland and floodplain hydrology and other river processes” in the definition of “nature-based approaches,” but disagrees that such an edit is needed to the definition to address the commenter's concerns.

FEMA's longstanding requirements in 44 CFR 9.11 outline the agency's requirements to restore and preserve the natural and beneficial values served by floodplains and wetlands. This requirement to restore and preserve the values served by floodplains and wetlands,

see, e.g.,

44 CFR 9.11(b)(3) & (e), applies to all actions located within a floodplain or wetland or that affect a floodplain or wetland, including actions that use nature-based approaches.

As explained above, the use of “maintenance” is to differentiate between nature-based approaches and natural features and FEMA does not believe the changes suggested by the commenter are appropriate. Nature-based approaches are designed to mimic natural processes, but they are not wholly naturally occurring. As such, they may require some form of maintenance to ensure they are performing as intended. In comparison, natural features are those characteristics of the environment that are naturally occurring and exist in a dynamic

equilibrium, so should require little to no maintenance in serving their purpose. FEMA understands the commenter's concern that “green infrastructure” is more expansive than stated in the NPRM and plans to provide additional resources that will incorporate examples to address some of the specific scenarios raised by the commenter. FEMA notes the definition of “nature-based approaches” states that nature-based approaches are sometimes referred to as “green infrastructure” and the proposed changes merely restate language already incorporated into the definition.

Comment:

One commenter restated concerns from a 2016 NPRM comment that the current definition listed “green roofs” or “downspout disconnection” as examples of nature-based approaches, and recommended FEMA provide more applicable examples of nature-based approaches, including “property acquisitions and relocations;” “dam removal;” “levee notching, setbacks, or removal;” and “stream crossing upgrades.” The commenter also recommended FEMA expand the definition of nature-based approaches to encompass the restoration and conservation of natural features, providing added emphasis on the use of actions to bolster natural flood risk and water quality management services.

FEMA Response:

FEMA's definition of “nature-based approaches” in the final rule, like the definition in the NPRM, does not contain “green roofs” or “downspout disconnection.” FEMA's definition is consistent with the Revised Guidelines glossary definition and, as explained above, the changes proposed by the commenter could result in inconsistencies including inconsistent implementation across other Federal agencies. While FEMA appreciates the commenters' concerns to include restoration or conservation of naturally occurring systems and processes and concerns related to green infrastructure, the Revised Guidelines help ensure key terminology is consistent across Federal agencies implementing FFRMS. Although the Revised Guidelines state that nature-based approaches can restore natural processes, FEMA does not believe the definition excludes either protecting or restoring natural processes.

FEMA referred to green roofs and downspout disconnection in the preamble to the NPRM as potential examples of green infrastructure, but not as part of the proposed regulatory definition.

See

88 FR at 67890. As part of implementing this final rule, FEMA will provide additional resources with additional examples to address the commenter's concerns as explained above.

Comment:

One commenter asked how FEMA defines natural systems and ecosystem processes.

FEMA Response:

FEMA defined “nature-based approaches” and “natural features” in proposed § 9.4. FEMA believes those definitions are sufficient and the terms the commenter used are generally accepted terms found in Executive Order 11988, as amended, that do not require additional definition in this final rule.

8. Natural and Beneficial Values of Floodplains and Wetlands and Natural Features

FEMA received three comments on the definitions of “natural and beneficial values of floodplains and wetlands” and “natural features.”

Comment:

One commenter requested FEMA incorporate more explicit references to biodiversity, ecosystem functioning, and natural values into the regulation and requested “habitat connectivity” be added to the definition of “natural and beneficial values of floodplains and wetlands” as an example under “Living Resource Values.”

FEMA Response:

FEMA respectfully declines the commenter's request, as the agency believes the concept habitat connectivity is adequately addressed under Living Resource Values through the changes made in this final rule. Specifically, the final rule describes Living Resource Values as “providing habitats and enhancing biodiversity for fish, wildlife, and plant resources.” This language adequately encompasses habitat connectivity, and no edits are required to the final rule.

Comment:

A commenter requested FEMA include “functions” in addition to values when referring to protecting or restoring floodplains and wetlands to read “the beneficial functions and values of floodplains and wetlands.”

FEMA Response:

FEMA's definition of “natural and beneficial values of floodplains and wetlands” incorporates functions and FEMA does not believe additional edits are required.

Comment:

One commenter supported the changes proposed to the definitions of “natural and beneficial values of floodplains and wetlands,” and “wetlands” and additional definitions for “nature-based approaches” and “natural features” and requested FEMA develop post-regulatory guidance on functional floodplains and wetlands and nature-based solutions.

FEMA Response:

FEMA agrees the changes to the definitions of “natural and beneficial values of floodplains and wetlands” and “wetlands” and the addition of definitions for “nature-based approaches” and “natural features” are helpful features of the rule. FEMA will distribute additional resources to SLTT partners and the public identifying what the FFRMS is, and how the agency will further implement the Executive Orders and part 9.

9. New Construction

Comment:

One commenter recommended the definition of “new construction” include “allowed new construction” associated with systems that must be located in the floodplain for supplementing water supply. The commenter requested the rule require consideration of specific stormwater runoff requirements for construction that must be completed in the floodplain and that FEMA recognize managed aquifer recharge (MAR)-related activities might be subject to other State and/or Federal regulation.

FEMA Response:

The definition of “new construction” in part 9 must be broad in nature to support the various types of projects and activities FEMA may perform or fund. FEMA specifically incorporated examples in the definition of “new construction” to relate to typical FEMA actions, but those examples are not exhaustive. Under the 8-step decision-making process, FEMA identifies and evaluates practicable alternatives. If there is no practicable alternative outside of the floodplain, such as for functionally dependent uses,

130

the action may be carried out in the floodplain. The types of actions described by the commenter (managed aquifer recharge floodwater storage retention, spillways, injection wells and other built systems that must be located in the floodplain for their intended purpose of supplementing water supply), would be determined to be functionally dependent uses with likely no alternative outside of the floodplain. FEMA believes no changes are required to the regulation language, as those types of actions would be allowable subject to the application of the FFRMS and the minimization requirements outlined in 44 CFR 9.11. FEMA notes some agency actions will also be subject to other Federal, State, Tribal, territorial, and/or local requirements and FEMA addresses this issue in the FFRMS policy.

130

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

10. Practicable

Comments:

Two commenters were supportive of the definition of “practicable.”

FEMA Response:

FEMA agrees with the commenters that the updated definition of “practicable” in § 9.4 ensures nature-based approaches are considered as practicable alternatives consistent with Executive Order 11988, as amended.

Comment:

One commenter stated the definition of “practicable” was extremely vague and might not provide sufficient guidance to ensure meaningful comparison of alternatives. Recognizing the agency's need for a broad definition to account for differences in situations, the commenter noted the definition did not provide much guidance to determine what is truly “practicable,” as opposed to merely expedient. The commenter requested FEMA require consideration of long-term environmental, community, and economic benefits and costs of an alternative, to ensure practicability determinations were not skewed towards grey infrastructure or in-floodplain actions. The commenter wrote those actions appeared cheaper or more convenient in the short-term but carried greater long-term adverse effects, risks, and/or costs.

FEMA Response:

FEMA did not make significant changes to the definition of “practicable.” The changes made in the NPRM and finalized in this rule add an agency authorities factor to clarify the agency's statutory and regulatory authorities may also limit FEMA's actions. These changes also updated the factors for consistency with the Revised Guidelines. FEMA does not believe additional changes are required to the definition of “practicable” as the factors listed are not all inclusive. The regulatory text in § 9.9 also provides examples and FEMA will provide additional examples in resources to SLTTs and the public to further clarify as appropriate.

11. Restore

Comment:

One comment requested the agency provide examples of what “natural functions” of the floodplain means and specifically include “wildlife habitat and connectivity, carbon sequestration, and water quality improvement.”

FEMA Response:

FEMA's definition of “restore” in § 9.4 does not require the revisions requested. FEMA's definition of the “natural and beneficial values of floodplains and wetlands” provides examples of what natural functions of the floodplain mean and additional edits are not required to address the commenter's concerns. Specifically, the definition provides some examples but is not all inclusive. FEMA can provide additional examples in resources to SLTTs and the public to further clarify as appropriate.

12. Structures and Facilities

Comment:

One commenter recommended linear transportation structures not fall under the definition of “structures.”

FEMA Response:

FEMA defines both “structures” and “facilities” in § 9.4 and the agency believes these definitions are sufficiently clear. In the FFRMS policy, FEMA addresses both structures and facilities and how the agency will apply FFRMS to each.

See

section G of the FFRMS policy for more guidance on facilities. FEMA edited the FFRMS Policy accompanying this final rule to further clarify that section G.2 applies to “facilities.” Linear transportation structures fall under the definition of “facilities” for purposes of this part.

13. Wetlands

While one commenter wrote in support of the revised definition of “wetlands,” three other commenters requested revision to the definition.

Comment:

One commenter stated the use of the United States Fish and Wildlife Service (USFWS) 's wetlands definition was problematic, stating in their experience, USFWS declined to engage on projects unless the projects involved species protected by the Endangered Species Act (ESA) and their habitat. The commenter noted water projects and developments involve regulation by the U.S. Army Corps of Engineers (USACE) more often than with USFWS, and recommended FEMA revise the definition of “wetlands” to use the USACE's long-standing wetland definition.

FEMA Response:

FEMA appreciates the commenter's suggestion and declines to change the definition as the agency believes the reference to USFWS is more appropriate than to USACE's definition. FEMA's definition is consistent with the definition of “wetlands” in Executive Order 11990 and the agency is implementing that Executive Order with this regulation. FEMA believes changes to this definition may result in conflating the implementation of Executive Order 11990 with the Clean Water Act. While the commenter is correct that the USACE definition focuses on flood attenuation or mitigation, FEMA's part 9 implementation goes beyond those considerations for wetlands. FEMA also notes the agency performs Section 7 consultation with USFWS under ESA for actions that affect protected species or critical habitat.

Comment:

One commenter recommended FEMA retain the reference to the specific publication provided in the definition of “wetlands.” The commenter stated the publication provided extensive examples and further clarification of what should be considered wetlands and was still used in the definition by the USFWS. The commenter requested the definition be updated to the correct year of publication in the final rule.

FEMA Response:

FEMA's definition is consistent with the definition of “wetlands” in Executive Order 11990, and the agency is implementing that Executive Order with this regulation. FEMA believes deleting the reference to a specific publication in the regulations will not result in a less specific definition as the commenter states. Eliminating references to specific publications helps reduce the potential for the regulations to be outdated if the publication is updated or replaced. As the commenter pointed out, the current regulatory text does not reference the correct year of the publication and the final rule will eliminate confusion around this point. FEMA still anticipates remaining consistent with the USFWS definition for purposes of part 9.

Comment:

One commenter recommended the final rule specify whether artificially induced and/or isolated wetlands were included and add clearer agency expectations for subsections under the agency's FFRMS policy, particularly those involving wetlands.

FEMA Response:

FEMA has not changed how the 8-step process applies to wetlands and does not intend to as part of FFRMS implementation in this rulemaking. FEMA's definition is consistent with the definition of “wetlands” in Executive Order 11990 and the agency is implementing that Executive Order with this regulation. FEMA believes the commenter is conflating the implementation of Executive Order 11990 with the Clean Water Act and FEMA's part 9 implementation goes beyond those considerations for wetlands.

14. Additional Definitions Requested

In addition to the new and revised definitions provided in the NPRM, commenters requested FEMA add definitions to the final rule.

Comment:

One commenter stated the need for clearer definitions was paramount to avoiding ambiguity and ensuring a shared understanding of key

terms. The commenter referenced the Climate-Informed Science Approach (CISA) as a term lacking a definition in the rule as an example of the need for more clarity.

FEMA Response:

FEMA appreciates the commenter's concerns but changes to the final rule are not required to resolve those concerns. FEMA's explanation of the Climate-Informed Science Approach is consistent with Executive Order 11988, as amended, and the Revised Guidelines. Rather than providing specific definitions in regulatory text, FEMA describes each approach in § 9.7(c) and in the FFRMS policy. FEMA believes these explanations are sufficiently clear and, because they are consistent with the Executive Order and Revised Guidelines, will not result in ambiguity.

Comment:

One commenter recommended adding a definition of “development” for consistency with the NFIP at 44 CFR part 59. The commenter also recommended adding a definition of “non-critical actions” to help define structures and facilities that clearly do not fall under the critical action standard and reduce misunderstandings.

FEMA Response:

FEMA defines “support of floodplain and wetland development” in § 9.4 and a definition of “development” is incorporated into that definition. In the FFRMS policy, FEMA clarifies what constitutes a non-critical action as any activity that does not meet the definition of critical action. FEMA does not believe a specific definition in the regulatory text is necessary given the definition of “critical action” already provided in § 9.4.

F. FFRMS Applicability

Commenters requested clarification on the applicability of FFRMS generally as well as to specific types of actions.

1. Generally

Comments:

Two commenters sought clarification on the Federal actions that are subject to FFRMS. Both commenters stated that the term “action subject to the FFRMS” could cause misinterpretation or confusion among different Federal agencies implementing the FFRMS. Another commenter asked whether the regulation and FFRMS policy would affect only new construction funded by FEMA. The commenter recommended a clarification to help States understand where FEMA's regulations implementing the FFRMS apply and whether FFRMS applied to State DOT projects funded through FHWA. The commenter also recommended FEMA clarify how the FFRMS applied to FEMA-funded, non-FEMA but still Federally-funded, and State-funded activities.

FEMA Response:

FEMA defines “action subject to the FFRMS” as “any action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility,” consistent with Executive Order 11988, as amended, and the Revised Guidelines. FEMA believes this definition is sufficiently clear. As explained in the preamble to the NPRM, 44 CFR part 9 applies to FEMA actions. As explained above, the requirements of this rule apply to grants funding the new construction, substantial improvement, or repair of substantial damage under FEMA programs such as IA, PA, and HMA programs, and grants processed by FEMA's GPD (involving grants for preparedness activities). All Federal agencies will utilize the Revised Guidelines for their own FFRMS implementation. Roads that are under the jurisdiction of another Federal agency, such as those under the FHWA, are subject to that agency's requirements as they generally are ineligible for funding under FEMA's grant assistance programs.

As explained in § 9.5(a)(3), FEMA will apply FFRMS only to new actions for which assistance is made available pursuant to declarations under the Stafford Act that are commenced on or after the effective date of the final rule, and new actions for which assistance is made available pursuant to notices of funding opportunity that publish on or after the effective date of the final rule. Ongoing projects will not be impacted by this final rule.

131

Note that FEMA first partially implemented the FFRMS by policy with respect to covered projects in existing floodplains in its Public Assistance and Hazard Mitigation Assistance programs.

See

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

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

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

(last accessed Jan. 24, 2024). Some current FEMA actions may be subject to these partial implementation policies; however, those actions would not be subject to this final rule or policy.

Comment:

A commenter requested FEMA clearly define how Federally funded expansions, renovations, rebuild, rehabilitations and similar activities would be impacted by the FFRMS. The commenter noted many infrastructure projects are not static structures, but rather periodically require rehabilitation, renovation, and/or expansion and thus would include a combination of rehabilitation of existing construction, modification of existing infrastructure, and entirely new infrastructure elements that would be combined during a project to create the “new” final structure and/or system. The commenter stated that FFRMS seemed to apply only to new structures that can be sited or elevated without moving or damaging existing construction and requested confirmation of that understanding. Another commenter commended FEMA's proposed policy provisions for identifying actions that might be subject to determinations of substantial damage or substantial improvement.

FEMA Response:

Part 9 does not apply only to new structures, and FEMA believes the rule and FFRMS policy are sufficiently clear on this point. As stated above, FEMA defines “action subject to the FFRMS” as “any action where FEMA funds are used for new construction, substantial improvement, or to address substantial damage to a structure or facility,” consistent with Executive Order 11988, as amended, and the Revised Guidelines.

In § 9.4, FEMA defines “new construction” in this final rule as “the construction of a new structure or facility or the replacement of a structure or facility which has been totally destroyed. New construction includes permanent installation of temporary housing units because even though such housing may initially have been planned to be tem

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

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