Updates to Floodplain Management and Protection of Wetlands Regulations To Implement Executive Order 13690 and the Federal Flood Risk Management Standard, 57401-57437 [2016-19810]
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Vol. 81
Monday,
No. 162
August 22, 2016
Part V
Department of Homeland Security
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Federal Emergency Management Agency
44 CFR Part 9
Updates to Floodplain Management and Protection of Wetlands
Regulations To Implement Executive Order 13690 and the Federal Flood
Risk Management Standard; Proposed Rule
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Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Proposed Rules
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 9
[Docket ID: FEMA–2015–0006]
RIN 1660–AA85
Updates to Floodplain Management
and Protection of Wetlands
Regulations To Implement Executive
Order 13690 and the Federal Flood
Risk Management Standard
Federal Emergency
Management Agency, DHS.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Federal Emergency
Management Agency (FEMA) proposes
to amend its regulations on ‘‘Floodplain
Management and Protection of
Wetlands’’ to implement Executive
Order 13690, which establishes the
Federal Flood Risk Management
Standard (FFRMS). FEMA also proposes
a supplementary policy (FEMA Policy:
078–3) that would further clarify how
FEMA applies the FFRMS.
DATES: Comments must be received no
later than October 21, 2016.
ADDRESSES: You may submit comments,
identified by Docket ID: FEMA–2015–
0006, by one of the following methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Mail/Hand Delivery/Courier:
Regulatory Affairs Division, Office of
Chief Counsel, Federal Emergency
Management Agency, 8NE–1604, 500 C
Street SW., Washington, DC 20472–
3100.
To avoid duplication, please use only
one of these methods. All comments
received will be posted without change
to https://www.regulations.gov, including
any personal information provided. For
instructions on submitting comments,
see the Public Participation portion of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT:
Kristin Fontenot, Director, Office of
Environmental Planning and Historic
Preservation, Federal Insurance and
Mitigation Administration, DHS/FEMA,
400 C Street SW., Suite 313,
Washington, DC 20472–3020. Phone:
202–646–2741; Email: Kristin.Fontenot@
fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Table of Contents
I. Public Participation
II. Executive Summary
III. Background
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A. Executive Order 11988, ‘‘Floodplain
Management’’
B. 44 CFR Part 9, ‘‘Floodplain Management
and Protection of Wetlands’’
C. Reevaluation of the 1 Percent Chance or
100-Year Flood Standard
D. Issuance of Executive Order 13690 and
the Federal Flood Risk Management
Standard (FFRMS), and Revision of the
1978 Guidelines
E. Substantive Components of the FFRMS
F. FEMA’s Implementation of Executive
Order 13690 and FFRMS
IV. Discussion of the Proposed Rule
A. Authority Citation
B. Section 9.1—Purpose of Part
C. Section 9.2—Policy
D. Section 9.3—Authority
E. Section 9.4—Definitions
F. Section 9.5—Scope
G. Section 9.6—Decision-Making Process
H. Section 9.7—Determination of Proposed
Action’s Location
I. Section 9.8—Public Notice Requirements
J. Section 9.9—Analysis and Reevaluation
of Practicable Alternatives
K. Section 9.11—Mitigation
L. Section 9.13—Particular Types of
Temporary Housing
M. Section 9.17—Instructions to
Applicants
N. Section 9.18—Responsibilities
O. Appendix A to Part 9—Decision-Making
Process for E.O. 11988
V. Response to Leadership Intent Comments
VI. FFRMS FY 2016 Appropriations
Language
VII. Regulatory Analyses
A. Executive Order 12866, Regulatory
Planning and Review & Executive Order
13563, Improving Regulation and
Regulatory Review
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. National Environmental Policy Act
(NEPA) of 1969
E. Paperwork Reduction Act (PRA) of 1995
F. Privacy Act
G. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13132, Federalism
I. Executive Order 12898, Environmental
Justice
J. Executive Order 12630, Taking of Private
Property
K. Executive Order 12988, Civil Justice
Reform
L. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
M. Federal Participation in the
Development and Use of Voluntary
Consensus Standards and in Conformity
Assessment Activities, OMB Circular A–
119
Table of Abbreviations
0.2PFA—0.2 Percent Annual Chance Flood
Approach
ABA—Architectural Barriers Act
ADA—Americans With Disabilities Act
CEQ—Council on Environmental Quality
CFR—Code of Federal Regulations
CISA—Climate-Informed Science Approach
CRS—Community Rating System
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EA—Environmental Assessment
EIS—Environmental Impact Statement
FBFM—Flood Boundary Floodway Map
FEMA—Federal Emergency Management
Agency
FFRMS—Federal Flood Risk Management
Standard
FHBM—Flood Hazard Boundary Map
FIMA—Federal Insurance & Mitigation
Administration
FIRM—Flood Insurance Rate Map
FIS—Flood Insurance Study
FMA—Flood Mitigation Assistance
FVA—Freeboard Value Approach
GPD—Grant Programs Directorate
HMA—Hazard Mitigation Assistance
HUD—Department of Housing and Urban
Development
IA—Individual Assistance
IPAWS—Integrated Public Alert Warning
System
IRFA—Initial Regulatory Flexibility Analysis
MHU—Manufactured Housing Unit
MitFLG—Mitigation Framework Leadership
Group
NEPA—National Environmental Policy Act
of 1969
NFIA—National Flood Insurance Act, as
Amended
NFIP—National Flood Insurance Program
NMF—National Mitigation Framework
NOAA—National Oceanic and Atmospheric
Administration
NPRM—Notice of Proposed Rulemaking
OMB—Office of Management and Budget
PA—Public Assistance
PDM—Pre-Disaster Mitigation
PHC—Permanent Housing Construction
PIA—Privacy Impact Assessment
PRA—Paperwork Reduction Act of 1995
PV—Present Value
RFA—Regulatory Flexibility Act
SBREFA—Small Business Regulatory
Enforcement Fairness Act of 1996
SORN—System of Records Notice
Stafford Act—Robert T. Stafford Disaster
Relief and Emergency Assistance Act, as
Amended
USGS—United States Geological Survey
WRC—Water Resources Council
I. Public Participation
We encourage you to participate in
this rulemaking by submitting
comments and related materials. We
will consider all comments and
materials received during the comment
period.
If you submit a comment, identify the
agency name and the Docket ID for this
rulemaking, indicate the specific section
of this document to which each
comment applies, and give the reason
for each comment. You may submit
your comments and materials by
electronic means, mail, or delivery to
the address under the ADDRESSES
section. Please submit your comments
and materials by only one means.
Regardless of the method used for
submitting comments or material, all
submissions will be posted, without
change, to the Federal e-Rulemaking
Portal at www.regulations.gov, and will
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include any personal information you
provide. Therefore, submitting this
information makes it public. You may
wish to read the Privacy Act notice that
is available via a link on the homepage
of www.regulations.gov.
Viewing comments and documents:
For access to the docket to read
background documents or comments
received, go to the Federal eRulemaking Portal at https://
www.regulations.gov. Background
documents and submitted comments
may also be inspected at the Office of
Chief Counsel, Federal Emergency
Management Agency, 500 C Street SW.,
8NE–1604, Washington, DC 20472–
3100.
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II. Executive Summary
The Federal Emergency Management
Agency (FEMA) is proposing to amend
44 CFR part 9 ‘‘Floodplain Management
and Protection of Wetlands’’ and issue
a supplementary policy to implement
the Federal Flood Risk Management
Standard (FFRMS) that was established
by Executive Order 13690. 44 CFR part
9 describes the 8-step process FEMA
uses to determine whether a proposed
action would be located within or affect
a floodplain, and if so, whether and how
to continue with or modify the proposed
action. Executive Order 13690 and the
FFRMS changed the Executive Branchwide guidance for defining the
‘‘floodplain’’ with respect to ‘‘federally
funded projects’’ (i.e., actions involving
the use of Federal funds for new
construction, substantial improvement,
or to address substantial damage to a
structure or facility). For FEMA
Federally Funded Projects, FEMA
proposes to use the updated definition
of ‘‘floodplain’’ contained in the
FFRMS. As discussed further below, the
FFRMS allows the agency to define
‘‘floodplain’’ using any of three
‘‘approaches.’’ In many cases, each of
these approaches would result in a
larger floodplain and a requirement to
design projects such that they are
resilient to a higher vertical elevation.
For actions that do not meet the
definition of FEMA Federally Funded
Project, FEMA would continue to use
the historical definition of floodplain,
i.e., the area subject to a one percent or
greater chance of flooding in any given
year (or the area subject to a 0.2 percent
annual chance of flooding in any given
year for critical actions). Finally, the
proposed rule would require the use,
where possible, of natural systems,
ecosystem processes, and nature-based
approaches in the development of
alternatives for all actions proposed in
a floodplain.
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FEMA estimates that for the 10-year
period after the rule goes into effect, the
benefits would justify the costs.
Flooding is the most common and costly
type of natural disaster in the United
States, and floods are expected to be
more frequent and more severe over the
next century due in part to the projected
effects of climate change. This proposed
rule would ensure that FEMA Federally
Funded Projects are designed to be
resilient to both current and future flood
risks.
III. Background
Below, FEMA describes in more
specific detail the basis for this
proposed rule. Section III.A. describes
Executive Order 11988 and the Water
Resources Council’s 1978 ‘‘Floodplain
Management Guidelines’’ (1978
Guidelines). Executive Order 11988
along with the 1978 Guidelines
established an 8-step decision-making
process by which Federal agencies carry
out Executive Order 11988’s direction to
avoid the long- and short-term adverse
impacts associated with the occupancy
and modification of the floodplain and
avoid the direct or indirect support of
floodplain development whenever there
is a practicable alternative. Section III.B.
describes FEMA implementing
regulations at 44 CFR part 9, which
closely follow the model decisionmaking process. Section III.C. describes
how lessons learned from major events,
including Hurricane Sandy, prompted
reevaluation of the prevailing standard
for determining whether a proposed
action was located within a floodplain.
Section III.D. describes the
development of Executive Order 13690
and the Federal Flood Risk Management
Standard. Lessons learned from major
flood events, including Hurricane
Sandy, prompted reevaluation of the
prevailing standard. Pursuant to
direction from the President’s Climate
Action Plan and to build on the work of
the Hurricane Sandy Rebuilding Task
Force, the Mitigation Framework
Leadership Group developed the
Federal Flood Risk Management
Standard. Subsequently, the President
issued Executive Order 13690 to
establish the Federal Flood Risk
Management Standard, and to amend
Executive Order 11988. Executive Order
13690 directs agencies to issue or
amend their existing regulations and
procedures to comply with the Order.
Section III.E. describes the substantive
components of the Federal Flood Risk
Management Standard and Section III.F.
describes FEMA’s proposed approach to
implement the required changes.
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A. Executive Order 11988, ‘‘Floodplain
Management’’
The President issued Executive Order
11988, (42 FR 26951, May 25, 1977) in
furtherance of the National Flood
Insurance Act of 1968, as amended (42
U.S.C. 4001 et seq.); the Flood Disaster
Protection Act of 1973, as amended
(Pub. L. 93–234, 87 Stat. 975); and the
National Environmental Policy Act of
1969 (NEPA) (42 U.S.C. 4321 et seq.).1
Executive Order 11988 requires Federal
agencies to avoid, to the extent possible,
the long- and short-term adverse
impacts associated with the occupancy
and modification of floodplains, where
there is a practicable alternative. It
requires each Federal agency to provide
leadership and take action to reduce the
risk of flood loss, to minimize the
impact of floods on human safety,
health, and welfare, and to restore and
preserve the natural and beneficial
values served by floodplains in carrying
out its responsibilities for: (1)
Acquiring, managing, and disposing of
Federal lands and facilities; (2)
providing federally undertaken,
financed, or assisted construction and
improvements; and (3) conducting
Federal activities and programs affecting
land use, including but not limited to
water and related land resources
planning, regulating, and licensing
activities. It states that each agency has
a responsibility to evaluate the potential
effects of any actions it may take in a
floodplain; to ensure that its planning,
programs, and budget requests reflect
consideration of flood hazards and
floodplain management; and to
prescribe procedures to implement the
policies and requirements of the
Executive Order.
In order to meet these requirements,
each agency, before taking an action,
must determine whether the proposed
action will occur in a floodplain.2 Prior
to being revised in 2015, Executive
Order 11988 defined the word
‘‘floodplain’’ to include, at a minimum,
the ‘‘area subject to a one percent or
1 The National Flood Insurance Act and the Flood
Disaster Protection Act establish a multi-purpose
program to provide flood insurance, minimize the
damage caused by flood losses, and guide the
development of proposed construction, where
practicable, away from floodplains. NEPA requires
Federal agencies to analyze the environmental
impacts of proposed actions and evaluate
alternatives to those actions, which includes the
evaluation of floodplains.
2 Any action FEMA takes, including its provision
of grants for disaster assistance, first undergoes an
analysis pursuant to Executive Order 11988 (unless
the action is specifically exempted from the
requirements of the Order). The grant recipient,
therefore, generally provides information to FEMA
about the practicability of alternatives outside the
floodplain and other information to assist in the
analysis.
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greater chance of flooding in any given
year.’’ 3 The Executive Order defines
agency ‘‘action’’ to include actions that
the agency takes directly (such as when
a Federal agency builds a new facility
for its own operations) as well as actions
that a non-Federal entity takes using
Federal funding (such as a State or local
government building a new facility
using Federal grant funding).
If the action will occur in a
floodplain, the agency must consider
alternatives to avoid adverse effects and
incompatible development in the
floodplain. If the agency finds that the
only practicable alternative requires the
action to occur in the floodplain, the
agency must, prior to taking the action,
design or modify the action in order to
minimize potential harm to or within
the floodplain. Additionally, the agency
must prepare and circulate a notice
containing an explanation of why the
action is proposed to be located in the
floodplain. Particularly relevant to
FEMA, the Executive Order also
requires agencies to provide appropriate
guidance to applicants for grant funding
to encourage them to evaluate the effects
of their proposals in floodplains prior to
submitting grant applications.
Executive Order 11988 requires
agencies to prepare implementing
procedures in consultation with the
Water Resources Council (WRC),4
FEMA, and the Council on
Environmental Quality (CEQ). As noted,
in 1978, the WRC issued ‘‘Floodplain
Management Guidelines,’’ (1978
Guidelines), the authoritative
interpretation of Executive Order
11988.5 The 1978 Guidelines provided a
section-by-section analysis, defined key
terms, and outlined an 8-step decisionmaking process for carrying out the
directives of Executive Order 11988.
3 This is also referred to as the 100-year
floodplain or the base floodplain.
4 The Water Resources Council, established by
statute (42 U.S.C. 1962a–1), is charged with
maintaining a continuing study and preparing an
assessment biennially, or at such less frequent
intervals as the Council may determine, of the
adequacy of supplies of water necessary to meet the
water requirements in each water resource region in
the United States and the national interest therein;
and maintaining a continuing study of the relation
of regional or river basin plans and programs to the
requirements of larger regions of the Nation and of
the adequacy of administrative and statutory means
for the coordination of the water and related land
resources policies and programs of the several
Federal agencies. It is responsible for appraising the
adequacy of existing and proposed policies and
programs to meet such requirements, and making
recommendations to the President with respect to
Federal policies and programs.
5 43 FR 6030, Feb. 10, 1978. A PDF copy of the
1978 Guidelines can be found at this link: https://
portal.hud.gov/hudportal/documents/
huddoc?id=DOC_14216.pdf.
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B. 44 CFR Part 9, ‘‘Floodplain
Management and Protection of
Wetlands’’
FEMA promulgated regulations
implementing Executive Order 11988 at
44 CFR part 9, ‘‘Floodplain Management
and Protection of Wetlands.’’ 6 Part 9
closely follows the 1978 Guidelines in
setting forth FEMA’s policy and
procedures for floodplain management
relating to disaster planning, response
and recovery, and hazard mitigation.
Part 9 applies to FEMA disaster and
non-disaster assistance programs,
including Public Assistance (PA),
Individual Assistance (IA), Hazard
Mitigation Assistance (HMA), and
grants processed by FEMA’s Grant
Programs Directorate (GPD) (involving
grants for preparedness activities).
Pursuant to section 8 of Executive Order
11988, Part 9 does not apply to
assistance provided for emergency work
essential to save lives and protect
property and public health and safety,
performed pursuant to sections 403 and
502 of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act, as
amended (42 U.S.C. 5170b and 5192). In
addition, FEMA does not apply Part 9
to non-grant, site-specific actions under
the National Flood Insurance Program
(NFIP),7 such as the issuance of
individual flood insurance policies, the
adjustment of claims, or the issuance of
individual flood insurance maps. FEMA
does not apply Part 9 to site-specific
actions under the NFIP because the
establishment of programmatic criteria,
rather than the application of the
programmatic criteria to individual
situations, is the action with the
potential to influence/affect
floodplains.8
As noted, Part 9 outlines the 8-step
decision-making process FEMA follows
in applying Executive Order 11988 to its
actions:
Step (1) Floodplain determination (44
CFR 9.7). Under Step 1, FEMA must
determine if a proposed agency action is
located in or affects the base floodplain
(or, for critical actions, the 500-year
floodplain). The base floodplain is the
6 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.
7 A complete list of FEMA programs to which part
9 does not apply appears at 44 CFR 9.5. The
exemption for actions under the NFIP is located at
44 CFR 9.5(f).
8 For example, part 9 requires FEMA to apply the
8-step process to a programmatic determination of
categories of structures to be insured, but does not
require FEMA to apply an 8-step review to a
determination of whether to insure each individual
structure. See 45 FR 59520, Sept. 9, 1980 (59523).
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area subject to inundation by the base
flood, which is that flood which has a
1 percent chance of occurrence in any
given year (also known as the 1 percent
annual chance flood or 100-year flood).
A ‘‘critical action’’ is any activity for
which even a slight chance of flooding
would be too great.9 The minimum
floodplain of concern for critical actions
is 500-year floodplain, which is the area
subject to inundation from a flood
having a 0.2 percent chance of occurring
in any given year. The 500-year
floodplain generally covers a larger area
than the base floodplain. FEMA’s
regulations state that in each instance
where the 8-step process refers to the
base floodplain, an agency should
substitute the 500-year floodplain for
the base floodplain if the proposed
action is a critical action.
FEMA follows a specific regulatory
sequence in order to make its floodplain
determination. First, FEMA must
consult the Flood Insurance Rate Map
(FIRM), the Flood Boundary Floodway
Map (FBFM), and the Flood Insurance
Study (FIS) for the area. A FIRM is an
official, detailed map issued by the
NFIP, showing elevations and
boundaries of the 1 percent annual
chance floodplain and the 0.2 percent
annual chance floodplain.10 The FBFM
is a version of a flood map that shows
only the floodway 11 and flood
boundaries. An FIS report is an
examination, evaluation and
determination of flood hazards and, if
appropriate, corresponding water
surface elevations. If a FIRM is not
available, FEMA must obtain a Flood
Hazard Boundary Map (FHBM) which is
a less detailed map than a FIRM and
shows the approximate areas of the base
floodplain. If data on flood elevations,
floodways, or coastal high hazard areas
are needed, or if the map does not
delineate the flood hazard boundaries in
the vicinity of the proposed site, FEMA
must seek detailed information from a
list of sources included in the
9 The concept of critical actions evolved during
the drafting of the 1978 Guidelines and reflects a
concern that the impacts of floods on human safety,
health, and welfare for many activities could not be
minimized unless a higher degree of protection than
the base flood was provided. See Interagency Task
Force on Floodplain Management, Further Advice
on Executive Order 11988 Floodplain Management
(1980) available at https://www.gsa.gov/graphics/
pbs/FEDERAL_EMERGENCY_MANAGEMENT_
AGENCY_R2F-a8-k_0Z5RDZ-i34K-pR.pdf.
10 FEMA estimates that only 18 percent of
mapped flood zones have detailed floodplain
boundaries of the 0.2 percent annual chance
floodplain.
11 The floodway is the channel of a river or other
watercourse and the adjacent land areas that must
be reserved in order to discharge the base flood
without cumulatively increasing the water surface
elevation more than a designated height. See 44
CFR 59.1.
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regulations. See 44 CFR 9.7(c)(1)(ii). If
the sources listed do not have or know
of detailed information and are unable
to assist in determining whether or not
the proposed site is in the base
floodplain, FEMA must seek the
services of a licensed consulting
engineer experienced in this type of
work. If, however, a decision involves
an area or location within extensive
Federal or State holdings or a headwater
area, and no FIS, FIRM, FBFM, or
FHBM is available, FEMA will seek
information from the land administering
agency before seeking information and/
or assistance from the list of sources
included in the regulations. Then, if
none of the sources listed has
information or can provide assistance,
FEMA will seek the services of an
experienced Federal or other engineer.
Step (2) Early public review (44 CFR
9.8). FEMA must make public its intent
to locate a proposed action in the base
floodplain. FEMA must provide
adequate information to enable the
public to have an impact on the
decision outcome for all proposed
actions having potential to affect,
adversely, or be affected by floodplains.
For each action having national
significance for which notice is
provided, FEMA uses the Federal
Register as the minimum means for
notice, and will provide notice by mail
to national organizations reasonably
expected to be interested in the action.
44 CFR 9.8(c)(5) describes the contents
of the public notice, such as a
description of the action, the degree of
hazard involved, a map of the area, or
other identification of the floodplain,
and identification of the responsible
agency official.
Step (3) Practicable alternatives (44
CFR 9.9). If the action is in the
floodplain, FEMA will identify and
evaluate practicable alternatives to
carrying out a proposed action in
floodplains, including the following:
Alternative sites outside the floodplain;
alternative actions which serve
essentially the same purpose as the
proposed action, but which have less
potential to affect or be affected by the
floodplain; and ‘‘no action.’’ The
floodplain site itself must be a
practicable location in light of the other
factors. Under 44 CFR 9.9(c), FEMA will
analyze several factors in determining
the practicability of the alternatives
described in 44 CFR 9.9(b), namely
natural environment, social concerns,
economic aspects, and legal constraints.
44 CFR 9.9(d) states that FEMA will not
locate the proposed action in the
floodplain, if a practicable alternative
exists outside the floodplain or wetland.
For critical actions, FEMA will not
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locate the proposed action in the 500year floodplain, if a practicable
alternative exists outside the 500-year
floodplain. Even if no practicable
alternative exists outside the floodplain,
in order to carry out the action the
floodplain or wetland must itself be a
practicable location in light of the
review required under Step 3.
Step (4) Impact of chosen alternative
(44 CFR 9.10). FEMA must identify if
the action has impacts in the floodplain
or directly or indirectly supports
floodplain development that has
additional impacts in the floodplain. If
the proposed action is outside the
floodplain and has no identifiable
impacts or support, the action can be
implemented (Step 8). 44 CFR 9.10(b)
provides that FEMA will identify the
potential direct and indirect adverse
impacts associated with the occupancy
and modification of floodplains and the
potential direct and indirect support of
floodplain development that could
result from the proposed action. FEMA’s
identification of such impacts shall be
to the extent necessary to comply with
the requirements of Executive Order
11988 to avoid floodplain locations
unless they are the only practicable
alternatives and to minimize harm to
and within floodplains and wetlands.
Step (5) Minimize impacts (44 CFR
9.11). If the proposed action has
identifiable impacts in the base
floodplain or directly or indirectly
supports development in the floodplain,
FEMA must minimize these effects and
restore and preserve the natural and
beneficial floodplain values served by
floodplains. 44 CFR 9.11(b) states
generally that FEMA will design or
modify its actions so as to minimize
harm to or within the floodplain; will
minimize destruction, loss, or
degradation of wetlands; will restore
and preserve natural and beneficial
floodplain values; and will preserve and
enhance natural and beneficial wetland
values. Pursuant to 44 CFR 9.11(c),
FEMA will more specifically minimize
potential harm to lives and the
investment at risk from the base flood,
or, in the case of critical actions, from
the 500-year flood; potential adverse
impacts the action may have on others;
and potential adverse impacts the action
may have on floodplain values.
Pursuant to 44 CFR 9.11(d), FEMA will
not allow new construction or
substantial improvement in a floodway,
and will not allow new construction in
a coastal high hazard area, except for a
functionally dependent use 12 or a
structure or facility which facilitates an
open space use. For a structure which
is a functionally dependent use, or
which facilitates an open space use,
FEMA will not allow construction of a
new or substantially improved structure
in a coastal high hazard area unless it
is elevated on adequately anchored
pilings or columns, and securely
anchored to such piles or columns so
that the lowest portion of the structural
members of the lowest floor (excluding
the pilings or columns) is elevated to or
above the base flood level (the 500-year
flood level for critical actions)
(including wave height). Regarding
elevation of structures, 44 CFR
9.11(d)(3) states that there will be no
new construction or substantial
improvement of structures unless the
lowest floor of the structures (including
basement) is at or above the level of the
base flood, and there will be no new
construction or substantial
improvement of structures involving a
critical action unless the lowest floor of
the structure (including the basement) is
at or above the level of the 500-year
flood.
Step (6) Reevaluate alternatives (44
CFR 9.9). FEMA must reevaluate the
proposed action. Pursuant to 44 CFR
9.9(e), upon determination of the impact
of the proposed action to or within the
floodplain and of what measures are
necessary to comply with the
requirement to minimize harm to and
within the floodplains, FEMA will
determine whether: the action is still
practicable at a floodplain site in light
of the exposure to flood risk and the
ensuing disruption of natural values, the
floodplain site is the only practicable
alternative, there is a potential for
limiting the action to increase the
practicability of previously rejected
non-floodplain sites and alternative
actions, and minimization of harm to or
within the floodplain can be achieved
using all practicable means. Pursuant to
44 CFR 9.9(e)(2), FEMA will take no
action in a floodplain unless the
importance of the floodplain site clearly
outweighs the requirement of Executive
Order 11988 to avoid direct or indirect
support of floodplain development;
reduce the risk of flood loss; minimize
the impact of floods on human safety,
health, and welfare; and restore and
preserve floodplain values.
Step (7) Findings and public
explanation (44 CFR 9.12). If FEMA
finds that the only practicable
alternative is to take the action in the
floodplain, it must give public notice of
the reasons for this finding. 44 CFR
12 A functionally dependent use means a use
which cannot perform its intended purpose unless
it is located or carried out in close proximity to
water (e.g., bridges and piers). See 44 CFR 9.4.
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9.12(e) describes the requirements for
the content of such notice, such as a
statement of why the proposed action
must be located in an area affecting or
affected by a floodplain or wetland, a
description of all significant facts
considered in making this
determination, identification of the
responsible official, and a map of the
relevant area.
Step (8) Implementation (Multiple
sections of 44 CFR and applicable
program guidance). FEMA may
implement the proposed action after it
allows a reasonable period for public
response and reviews the
implementation and postimplementation to ensure compliance
with the minimization standards in 44
CFR 9.11. Implementation of the
requirements of Executive Order 11988
is integrated into the specific
regulations and procedures of the grant
program under which the action is
proposed to take place. After the
proposed action is implemented, the
FEMA program providing the funding
determines, under its applicable
regulations and procedures, whether the
grant recipient has completed the
prescribed mitigation.
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C. Reevaluation of the 1 Percent Chance
or 100-Year Flood Standard
In the aftermath of Hurricane Sandy,
the President issued Executive Order
13632,13 which created the Federal
Interagency Hurricane Sandy
Rebuilding Task Force (Sandy Task
Force). The Sandy Task Force was
chaired by the Secretary of the
Department of Housing and Urban
Development (HUD), which led the
effort in coordination with multiple
Federal partners. The Sandy Task Force
was supported by an advisory group
composed of State, local, and Tribal
elected leaders. Pursuant to direction
from Executive Order 13632 to remove
obstacles to resilient rebuilding, the
Sandy Task Force reevaluated the 1
percent chance/100-year standard. In
April 2013, the Sandy Task Force
announced a new Federal flood risk
reduction standard which required
elevation or other flood-proofing to 1
foot above 14 the best available and most
recent base flood elevation and applied
that standard to all Federal disaster
13 77
FR 74341, Dec. 14, 2012.
is also known as ‘‘freeboard.’’ ‘‘Freeboard’’
is a factor of safety usually expressed in feet above
a flood level for purposes of floodplain
management. Freeboard tends to compensate for the
many unknown factors that could contribute to
flood heights greater than the height calculated for
a selected size flood and floodway conditions, such
as wave action, bridge openings, and the hydrologic
effect of urbanization of the watershed. See
www.fema.gov/freeboard.
14 This
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recovery investments in Sandy-affected
communities.15 The Sandy Task Force
called for all major Sandy rebuilding
projects in Sandy-affected communities
using Federal funding to be elevated or
otherwise flood-proofed according to
this new flood risk reduction standard.
In May 2013, DHS issued the National
Mitigation Framework (NMF) to
establish a common platform and forum
for coordinating and addressing how the
Nation manages risk through mitigation
capabilities.16 The NMF established the
Mitigation Framework Leadership
Group (MitFLG) to promote
coordination of mitigation efforts across
the Federal Government. Its goal is
broader than the goal of the Sandy Task
Force, as it focuses on enabling
achievement of a secure and resilient
Nation by developing, employing and
coordinating core mitigation capabilities
to reduce the loss of life and property.
The MitFLG is responsible for assessing
the effectiveness of mitigation core
capabilities as they are developed and
deployed across the Nation. The MitFLG
facilitates information exchange,
coordinates policy implementation
recommendations on national-level
issues, and oversees the successful
implementation of the NMF. The
MitFLG is composed of representatives
from the Department of Agriculture, the
Department of Commerce, the
Department of Defense, the Department
of Energy, the Environmental Protection
Agency, the General Services
Administration, the Department of
Health and Human Services, DHS, HUD,
the Department of the Interior, the
Department of Justice, the Small
Business Administration, and the
Department of Transportation. FEMA
also chairs the MitFLG.17
In June 2013, the President issued a
Climate Action Plan 18 that directs
agencies to take appropriate actions to
reduce risk to Federal investments,
specifically directing agencies to build
on the work done by the Sandy Task
Force and to update their flood risk
reduction standards for ‘‘federally15 HUD release entitled, ‘‘Federal Government
Sets Uniform Flood Risk Reduction Standard for
Sandy Rebuilding Projects,’’ April 4, 2013.
16 Department of Homeland Security, National
Mitigation Framework (2013), available at https://
www.fema.gov/media-library-data/20130726–1914–
25045–9956/final_national_mitigation_framework_
20130501.pdf. Mitigation reduces the impact of
disasters by supporting protection and prevention
activities, easing response, and speeding recovery to
create better prepared and more resilient
communities. This Framework describes mitigation
roles across the whole community.
17 See National Mitigation Framework, p. 30.
18 Executive Office of the President, The
President’s Climate Action Plan (2013), available at
https://www.whitehouse.gov/sites/default/files/
image/president27sclimateactionplan.pdf.
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funded . . . projects’’ to ensure that
‘‘projects funded with taxpayer dollars
last as long as intended.’’ 19 In
November 2013, the President’s State,
Local, and Tribal Leaders Task Force on
Climate Preparedness and Resilience
(Climate Task Force) convened, with 26
Governors, mayors, and local and Tribal
leaders serving as members. After a
year-long process of receiving input
from State, local, Tribal, and territorial
governments; private businesses; trade
associations; academic organizations;
civil society; and other stakeholders, the
Task Force provided a recommendation
to the President in November 2014. In
order to ensure resiliency, Federal
agencies, when taking actions in and
around floodplains, should include
considerations of the effects of climate
change, including sea level rise, more
frequent and severe storms, and
increasing river flood risks. The Climate
Task Force also recommended that the
best available climate data should be
used in siting and designing projects
receiving Federal funding, and that
margins of safety, such as freeboard and
setbacks, should be included.20
D. Issuance of Executive Order 13690
and the Federal Flood Risk Management
Standard, and Revision of the 1978
Guidelines
The MitFLG developed the FFRMS
reflecting the best available science,
lessons learned, and input and
recommendations gathered from the
Sandy Task Force, the Climate Action
Plan, and the Climate Task Force. As a
result of MitFLG’s efforts, on January 30,
2015, the President issued Executive
Order 13690, ‘‘Establishing a Federal
Flood Risk Management Standard
(FFRMS) and a Process for Further
Soliciting and Considering Stakeholder
Input.’’ 21 Executive Order 13690
amended Executive Order 11988 and
established the FFRMS. It also set forth
a process by which additional input
from stakeholders is solicited and
considered before agencies implement
the FFRMS. It required FEMA to
publish, on behalf of the MitFLG, an
updated version of the Implementing
Guidelines (revised to incorporate the
changes required by Executive Order
13690 and the FFRMS) in the Federal
Register for notice and comment. After
receipt and adjudication of comments,
Executive Order 13690 required the
MitFLG to submit to the WRC
19 See
The President’s Climate Action Plan at 15.
State, Local, and Tribal Leaders
Task Force on Climate Preparedness and Resilience,
Recommendations to the President, (2014),
available at https://www.whitehouse.gov/sites/
default/files/docs/task_force_report_0.pdf at 7.
21 80 FR 6425 Feb. 4, 2015.
20 President’s
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recommendations for finalizing the draft
Guidelines. Finally, Executive Order
13690 required the WRC to issue final
Guidelines to provide guidance to
agencies on the implementation of
Executive Order 11988, as amended,
consistent with the FFRMS. After the
completion of this process, Executive
Order 13690 directs agencies to issue or
amend their existing regulations and
procedures to comply with the Order.
The MitFLG is required to reassess the
FFRMS annually, after seeking
stakeholder input, and provide
recommendations to the WRC to update
the FFRMS if warranted. The WRC is
required to update the FFRMS at least
every 5 years.
FEMA, on behalf of MitFLG,
published a Federal Register notice for
a 60-day notice and comment period
seeking comments on a draft of the
Revised Guidelines on February 5,
2015.22 In response to multiple requests,
the MitFLG later extended the comment
period for an additional 30 days to end
on May 6, 2015.23 Periodically during
the public comment period, the
Administration (through FEMA and
CEQ) sent advisories to representatives
from Governors’ offices nationwide
announcing the issuance of Executive
Order 13690 and inviting comments on
the draft Revised Guidelines. The
Administration also attended or hosted
over 25 meetings across the country
with State, local, and Tribal officials
(including 26 mayors) and interested
stakeholders to discuss Executive Order
13690 and the draft Revised Guidelines.
The MitFLG held 9 public listening
sessions across the country 24 that were
attended by over 700 participants from
State, local, and Tribal governments and
other stakeholder organizations to
facilitate feedback on the draft Revised
Guidelines. The MitFLG published
notice of these public listening sessions
in the Federal Register.25
The public comment period closed on
May 6, 2015. The MitFLG received over
2700 26 comments. The MitFLG
22 80
FR 6530, Feb. 5, 2015.
FR 16018, Mar. 26, 2015.
24 The meetings were held in Iowa, Mississippi,
California, Virginia (Hampton Roads), Virginia
(Fairfax), New York, Texas, Washington, and via
webinar.
25 80 FR 19090, Apr. 9, 2015.
26 The MitFLG received approximately 556
separate submissions, which raised over 2700
separate issues and positions. Written comments
were received at a series of 8 in-person listening
sessions across the country (135 submissions);
verbal comments were shared during the public
comment periods of these same listening sessions
(74 commenters); comments were submitted
through the FFRMS email address (20 submissions);
comments were submitted through regulations.gov
(326 submissions); and comments were submitted
as part of a petition of support (1 submission).
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adjudicated the comments and
presented its recommendations to the
WRC, as required by Executive Order
13690. The WRC issued the final
Revised Guidelines on October 8,
2015.27 The Revised Guidelines contain
an updated version of the FFRMS
(located at Appendix G of the Revised
Guidelines), reiterate key concepts from
the 1978 Guidelines, and explain the
new concepts resulting from the
Executive Order 13690 and the FFRMS.
In response to public comments, the
FFRMS was updated to clarify the
distinction between actions and
Federally Funded Projects.
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. Incorporating this standard
into existing agency processes will
ensure that agencies expand
management from the current base flood
level to a higher vertical elevation and
corresponding horizontal floodplain so
that Federally Funded Projects will last
as long as intended. In addition, the
FFRMS encourages the use of natural
features and nature-based approaches in
the development of alternatives for all
Federal actions.
Under the FFRMS, an agency may
establish the floodplain for Federally
Funded Projects using any of the
following approaches: (1) ClimateInformed Science Approach (CISA):
Utilizing the best-available, actionable
hydrologic and hydraulic data and
methods that integrate current and
future changes in flooding based on
climate science; (2) Freeboard Value
Approach (FVA): Freeboard (base flood
elevation + X, where X is 3 feet for
critical actions and 2 feet for other
actions); (3) 0.2 percent annual chance
Flood Approach (0.2PFA): 0.2 percent
annual chance flood (also known as the
500-year flood); or (4) the elevation and
flood hazard area that result from using
any other method identified in an
update to the FFRMS.28 Each of the
approaches is described in further detail
below.
57407
regional sea-level rise variability and
lifecycle of the Federal action. This
includes use of the Department of
Commerce’s National Oceanic and
Atmospheric Administration’s
(NOAA’s) or similar global mean sealevel-rise scenarios. These scenarios
would be adjusted to the local relative
sea-level conditions and would be
combined with surge, tide, and wave
data using state-of-the-art science in a
manner appropriate to policies,
practices, criticality, and consequences
(risk).29 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-ofthe-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, but with an
emphasis on criticality as one of the
factors for agencies to consider when
conducting the analysis.
FFRMS Approach 1: CISA
The FFRMS states that the CISA is the
preferred approach, and that Federal
agencies should use this approach when
data to support such an analysis are
available. For areas vulnerable to coastal
flood hazards, the CISA includes the
FFRMS Approach 2: FVA
The FFRMS defines freeboard values
as an additional 2 feet added to the base
flood elevation, or, for critical actions,
an additional 3 feet added to the base
flood elevation. In other words, the
floodplain established by the FFRMS–
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, as well
as a corresponding increase in the
horizontal extent of the floodplain. The
increased horizontal extent will not be
the same in every case. As shown in the
next two illustrations, when the same
vertical increase is applied in multiple
Federally Funded Projects 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 Federally
Funded Project. FFRMS–FVA
Illustration A reflects an area with
relatively flat topography on either side
of the flooding source (i.e., river or
stream) channel. This is generally
representative of coastal plains, portions
of the Midwest, and other areas with
less variation in topography. FFRMS–
FVA Illustration B reflects an area with
steep topography on either side of the
27 Available in the docket for this rulemaking at
www.regulations.gov under Docket ID FEMA–2015–
0006.
28 See Executive Order 13690 Section 2(i), 80 FR
6425, Feb. 4, 2015 (6426).
29 The Revised Guidelines expand further upon
the methods for calculating sea-level rise for areas
vulnerable to coastal flood hazards in Section II (C)
of Appendix H, ‘‘Climate-Informed Science
Approach and Resources.’’
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flooding source channel. This is
representative of mountainous areas or
areas with changes in elevation near the
flooding source. With the same addition
of 2 feet to the base flood elevation
applied to both example locations, the
fact that the horizontal increase to the
floodplain will not be uniform when
applying the same increase to establish
the FVA and will vary depending on
local topography.
increase to the horizontal extent of the
floodplain in FFRMS–FVA Illustration
A is comparatively larger than the
increase to the horizontal extent of the
floodplain in FFRMS–FVA Illustration
B. These illustrations visually depict the
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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. The FFRMS notes that the 0.2
percent annual chance flood hazard data
produced by FEMA in coastal areas only
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considers storm-surge hazards; these
data do not include local wave action or
storm-induced erosion that are
considered in the computation of base
flood elevations. The FFRMS
encourages 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
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level of flood resilience for the proposed
investment.
FFRMS Approach 4: Update to FFRMS
Executive Order 13690 requires the
MitFLG to reassess the FFRMS
annually, after seeking stakeholder
input, and provide recommendations to
the WRC to update the FFRMS if
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warranted. It requires the WRC to
update the FFRMS at least every 5 years.
Further Guidance on Application of the
FFRMS Approaches To Establishing the
Floodplain
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The FFRMS states that when an
agency does not use CISA in a coastal
flood hazard area, the agency must use,
at a minimum, the applicable FVA (i.e.,
the base flood elevation plus 3 feet for
critical actions, or the base flood
elevation plus 2 feet for other actions).
In cases where the FEMA 0.2 percent
annual chance flood elevation does not
include wave height, or a wave height
has not been determined, the FFRMS
notes that the result will likely either be
lower than the current base flood
elevation or the base flood elevation
plus applicable freeboard. The FFRMS
states that the 0.2 percent annual chance
elevation should not be used in these
cases.
When actionable science is not
available and an agency opts not to
follow the CISA for riverine flood
hazard areas, the FFRMS states that an
agency may also select either the FVA,
or 0.2 percent annual chance flood
elevation approach, or a combination of
approaches, as appropriate. It states that
the agency is not required to use the
higher of the elevations, but may opt to
do so.
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F. FEMA’s Implementation of Executive
Order 13690 and FFRMS
When Executive Order 13690 was
issued, FEMA evaluated the application
of Executive Order 13690 and the
FFRMS with respect to its existing
authorities and programs. The FFRMS
establishes a flexible standard to
improve resilience against the impact of
flooding—to design for the intended life
of the Federal investment. FEMA
supports this principle. With more than
$260 billion in flood damages across the
Nation since 1980, it is necessary to take
action to responsibly use Federal funds,
and FEMA must ensure it does not
needlessly make repeated Federal
investments in the same structures after
flooding events. In addition, the FFRMS
will help support the thousands of
communities across the Country that
have strengthened their State and local
floodplain management codes and
standards to ensure that infrastructure
and other community assets are resilient
to flood risk. FEMA recognizes that the
need to make structures resilient also
requires a flexible approach to adapt for
the needs of the Federal agency, local
community, and the circumstances
surrounding each project or action.
FEMA intends to implement
Executive Order 13690, the FFRMS, and
the Revised Guidelines through this
proposed rule and supplementary
policy, which would (1) add or revise
definitions to be consistent with those
included in Executive Order 13690 and
the Revised Guidelines; (2) incorporate
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the use of the FFRMS approaches for
establishing the floodplain into FEMA’s
existing 8-step process; and (3) include
the requirement to consider the use of
nature-based approaches where possible
when developing alternatives for
developing in the floodplain.
Making the Initial Floodplain
Determination
As stated above, Executive Order
13690 and the FFRMS changed the
definition of ‘‘floodplain’’ with respect
to ‘‘Federally Funded Projects’’ (i.e.,
actions involving the use of Federal
funds for new construction, substantial
improvement, or to address substantial
damage to a structure or facility). The
FFRMS allows the agency to define
‘‘floodplain’’ using any of three
approaches. For actions which do not
meet the definition of a Federally
Funded Project, an agency should
continue to use the historical definition
of floodplain, i.e. the area subject to a
1 percent or greater chance of flooding
in any given year (or the area subject to
a 0.2 percent annual chance of flooding
in any given year for critical actions).
This means that one of the first steps an
agency must take is to determine
whether to use the FFRMS definition of
the floodplain or the historical
definition of the floodplain. Figure 1
illustrates the process by which FEMA
would decide which floodplain would
apply to an action or FEMA Federally
Funded Project.
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Selection Between the FFRMS
Approaches
Executive Order 13690 requires the
MitFLG to reassess the FFRMS
annually, after seeking stakeholder
input, and provide recommendations to
the WRC to update the standard if
warranted based on accurate and
actionable science that takes into
account changes to climate and other
changes in flood risk. At a minimum,
Executive Order 13690 requires an
update to the FFRMS at least every 5
years.30 This requires a balancing
approach in selecting between the
FFRMS approaches: Agencies must be
flexible enough to account for updates
to the FFRMS and yet also implement
a framework that is standardized
enough to be easily understood by and
consistently applied to stakeholders.
Consistent with the flexibility built
into Executive Order 13690, FEMA
proposes to implement the FFRMS by
adopting the flexible framework
proposed in Executive Order 13690 in
its entirety instead of mandating a
particular approach in its regulations.
Under this proposal, FEMA would
provide additional guidance (more
readily capable of revisions and
updates) that addresses which approach
FEMA would use for different types of
actions and how FEMA would tailor its
application of the various approaches
depending on the type and criticality of
the action. Specifically, FEMA’s
supplementary policy selects the use of
the FFRMS–FVA to establish the
floodplain for non-critical actions. For
critical actions, FEMA would allow the
use of the FFRMS–FVA floodplain or
the FFRMS–CISA, but only if the
elevation established under the FFRMS–
CISA is higher than the elevation
established under the FFRMS–FVA.
FEMA proposes to use the FFRMS–
FVA as the baseline approach for both
critical and non-critical FEMA Federally
Funded Projects for several reasons.
First, a choice to use the FFRMS–FVA
would reflect the practical need for
standardization at this stage of
implementation. The FFRMS–FVA
elevation is computed using the 1
percent annual chance elevation, and
FEMA may use the same historical
sequence it has followed to determine
the 1 percent annual chance elevation
for the purposes of establishing the
FFRMS–FVA elevation. This would still
allow for the use of widely available
FEMA products such as FIRMs, FBFMs,
and FISs. By following the same
historical sequence and utilizing known
mapping products, FEMA staff would
30 See
Executive Order 13690 Section 4(b), 80 FR
6425, Feb. 4, 2015 (6426).
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need relatively minimal additional
training to be able to use these products
to determine the horizontal extent of the
FFRMS–FVA floodplain. In addition,
the familiarity of the process and
products to be used in most projects
would benefit stakeholders by providing
a consistent methodology which
stakeholders would similarly be able to
use to determine where FEMA will
require application of the FFRMS.
Second, requiring the use of the
FFRMS–FVA as the minimum elevation
for critical actions would be consistent
with FEMA’s policy to encourage
communities to adopt higher standards,
including freeboard standards, than the
minimum floodplain management
criteria under the NFIP.31 Generally,
adoption of a freeboard tends to
compensate for the many unknown
factors that could contribute to flood
heights greater than the height
calculated for a selected size flood and
floodway conditions, such as wave
action, bridge openings, and the
hydrological effect of urbanization of
the watershed.32 Consistent with
FEMA’s policy, 22 States and an
additional 596 localities have adopted
freeboard requirements ranging from 1
to 3 feet.33 FEMA supports that
adoption by requiring that all of its
projects are consistent with more
restrictive Federal, State, or local
floodplain management standards.34
FEMA considered proposing the use
of the FFRMS–CISA instead of FFRMS–
FVA to reflect the FFRMS’s designation
of the FFRMS–CISA as the preferred
approach and to reflect that the FFRMS–
FVA sets a general level of protection,
whereas FFRMS–CISA uses a more sitespecific approach to predict flood risk
based on future conditions.
However, there are several reasons
why that course of action is not
appropriate at this time. First,
actionable climate data are not currently
available for all locations. For coastal
floodplains, one of the primary
considerations associated with the
FFRMS–CISA is determining what the
projected future sea level rise will be for
the area in which the project will be
completed. There are multiple
interagency reports, published scientific
journals, and agency tools that provide
scenario-based projections of sea level
31 See
44 CFR 60.1(d).
44 CFR 59.1.
33 Association of State Floodplain Managers,
States and Other Communities in FEMA CRS with
Building Freeboard Requirements, (2015), available
at https://www.floods.org/ace-files/documentlibrary/
FloodRiskMngmtStandard/States_with_freeboard_
and_CRS_Communities_with_Freeboard_in_Other_
states_2–27–15.pdf.
34 See 44 CFR 9.11(d)(6).
32 See
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rise for coastal floodplains. However,
FEMA is not aware of an analogous
approach for riverine floodplains that
accounts for uncertainties due to
climate change with respect to projected
future precipitation and associated
flooding.35 Instead, the Revised
Guidelines suggest the agency would
need to conduct a hydrology study that
is informed by expected changes in
climate and land use factors and
incorporate this analysis into its current
method for determining the
floodplain.36 FEMA expects that more
data will be developed supporting
broader-based inland and riverine
application of the FFRMS–CISA as
agencies implement the FFRMS and that
this data will be considered and
incorporated into future updates of the
FFRMS. FEMA requests comment on
the availability of actionable, planning,
and project-scale climate data with
respect to coastal and riverine
floodplains.
Second, in addition to the data
challenges, there are a number of factors
to be considered in deciding how to
apply the FFRMS–CISA that might
result in a decision-making process that
could unnecessarily delay recovery in
the wake of a disaster event for noncritical actions. The Revised Guidelines
recommend that the FFRMS–CISA
methodology account for projectspecific factors such as the risk to which
the action will be exposed, the
anticipated level of investment, and the
lifecycle of the action.37 For example, an
applicant might consider a construction
project that is in a coastal floodplain
and find that there are multiple
projections for what the sea level rise
may be in 100 years. The most
aggressive projection might indicate that
the project should be elevated 10 feet
above the 1 percent annual chance flood
elevation. However, the applicant might
decide that this project is not intended
to be functional for 100 years or that the
applicant’s budget might justify using a
lesser projection now and plan for
future upgrades to the structure or
facility. There may be a way to
standardize this type of decision-making
process as the FFRMS–CISA is more
broadly used; however, the current lack
of a standardized methodology for
making these decisions and the need to
engage in such project-specific
considerations in conjunction with
stakeholders could result in uncertainty
and delay. In light of the above
concerns, FEMA requests comment
regarding how FEMA could implement
35 See
Revised Guidelines at Appendix H, 15.
Revised Guidelines at 55.
37 See Revised Guidelines at 55.
36 See
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the FFRMS–CISA for non-critical
actions using a publicly-accessible,
standardized, predictable, flexible, and
cost-effective methodology.
FEMA also considered whether it
should alter its proposal for use of the
FFRMS–CISA in relation to the FFRMS–
FVA (or FFRMS–0.2PFA). FEMA
specifically welcomes comment on each
of the potential alternatives outlined
below. FEMA could choose a more
protective approach in which it would
determine the elevations established
under FFRMS–CISA, FFRMS–FVA and
the FFRMS–0.2PFA for critical actions
and only allow the applicant to use the
highest of the three elevations. This
approach would ensure that applicants
were building to the most protective
level, would avoid potential
inconsistencies with FEMA’s policy to
encourage adoption of freeboard
standards by local communities, and
would prevent a scenario where an
applicant was allowed to build to a
lower elevation than previously
required for critical actions under
FEMA’s implementation of Executive
Order 11988.38 FEMA believes that its
proposed policy is sufficiently
protective and would be less expensive
to administer and implement than the
alternative approach described above,
but nonetheless welcomes comment on
this alternative approach.
Also alternatively, FEMA could
choose to allow use of the FFRMS–
CISA, even if the resulting elevation is
lower than the application of the
FFRMS–FVA. This approach would give
FEMA and its grantees more flexibility
in implementing the standard, would
enable FEMA and its grantees to build
to an elevation based on the best
available science taking criticality into
account, and would provide a pathway
to relief for those areas that experience
declining flood risks.39 FEMA believes
that the need for standardization,
administrability, and adequate
protection all counsel in favor of its
policy, but welcomes comments on this
alternative approach as well.
FEMA is not proposing to use the
FFRMS–0.2PFA because of the limited
national availability of information on
the 0.2 percent annual chance flood
elevation and the additional costs
38 There may be some areas of the country where
application of the FFRMS–CISA and the FFRMS–
FVA could result in a lower elevation than the
FFRMS–0.2PFA which under existing regulations is
the elevation requirement for critical actions.
39 While FEMA believes that the average flood
risk will generally continue to increase nationwide
due to climate change, there is considerable
uncertainty in projecting flood risk at more granular
levels. Some areas may experience declines in flood
risk due to reduced rainfall or other unpredictable
changes to the floodplain.
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associated with producing this
information when not available. The
FFRMS–0.2PFA floodplain, like the
FFRMS–FVA floodplain, would have a
greater horizontal extent and require
higher elevation standards when
compared to the 1 percent annual
chance floodplain. However, while most
areas of the country have 1 percent
annual chance floodplain information
and the necessary topographical
information to determine the horizontal
extent under the FVA, far fewer are
mapped with 0.2 percent annual chance
floodplain information. This is because
although all FEMA-mapped flood zones
have either detailed or approximate 1
percent annual chance floodplain
boundaries, FEMA estimates that only
18 percent of mapped flood zones have
detailed floodplain boundaries of the
0.2 percent annual chance floodplain.40
Finally, in coastal areas, the FFRMS
requires Federal agencies to use the
FFRMS–FVA as the minimum elevation,
when not using the FFRMS–CISA,
because the 0.2 percent annual chance
flood information depicted on FEMA
FIRMs and in the FISs in coastal areas
consider storm-surge hazards, but not
wave action.41 FEMA recognizes that
the FFRMS–0.2PFA may result in a
higher elevation than the FFRMS–FVA
in some circumstances. However, based
on the foregoing reasons, FEMA expects
it will be clearer, less costly, and
provide more certainty to stakeholders,
if FEMA selects the FFRMS–FVA as the
primary approach.
Based on the foregoing reasons, FEMA
proposes to combine approaches and
use the FFRMS–FVA to establish the
floodplain for non-critical actions and
allow the use of the FFRMS–FVA
floodplain or the FFRMS–CISA for
critical actions, but only if the elevation
established under the FFRMS–CISA is
higher than the elevation established
under the FFRMS–FVA. This proposal
balances flexibility with
standardization, is consistent with
FEMA’s encouragement to communities
to adopt higher floodplain management
standards, reflects the priority that
FEMA places on ensuring adequate
planning for critical actions, and may
yield important lessons with respect to
potential future applications of the
FFRMS–CISA.
In addition to seeking comments on
FEMA’s proposed approach to
implementation generally, FEMA
specifically seeks public comments on
the impact of the proposed elevation
40 FEMA riverine flood hazard data inventory
information comes from the Coordinated Needs
Management Strategy dataset.
41 See Revised Guidelines at 57.
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requirement on the accessibility of
covered facilities under the Fair
Housing Act, the Americans with
Disabilities Act (ADA), the Architectural
Barriers Act (ABA), and Section 504 of
the Rehabilitation Act of 1973. Elevating
buildings as a flood damage mitigation
strategy will likely have a negative
impact on affected communities’
disabled and elderly populations, unless
those buildings are made accessible.
Although all ADA title II and III
facilities, ABA facilities, and Section
504 covered facilities are subject to
accessibility requirements, single-family
properties are generally not subject to
accessibility requirements unless they
are public housing (ADA title II) or a
social service establishment (ADA title
III). Consequently, even if the homes of
people with disabilities are made
accessible, a community’s single- and
multi-family housing stock may become
largely inaccessible through elevation
requirements. If the only accessible
homes in a community are those
currently occupied by people with
disabilities, those people will likely be
isolated. As occupants age or become
disabled, they may have no option to
remain in their homes or to age in place
because adding an accessible route into
an existing single- or multi-family
building will be costly or impossible. It
is therefore crucial for community
sustainability and integration of people
with disabilities that those buildings
that are subject to accessibility
requirements be made to comply.
In light of the substantial community
impact of elevating housing and other
buildings, along with the challenges
associated with the traditional options
for making elevated buildings accessible
(i.e., elevators, lifts, and ramps), FEMA
invites comments on strategies it could
employ to increase the accessibility of
properties so affected in the event the
proposed increase in elevation is
adopted. Additionally, FEMA invites
comments on the cost and benefits of
such strategies, including data that
supports the costs and benefits.
Determining the Corresponding
Horizontal Extent of the FFRMS
Floodplain
Once an agency has made the
determination that an action is a
Federally Funded Project that requires
use of the FFRMS floodplain, and then
made a determination which of the
FFRMS approaches to apply, the agency
must then decide where the FFRMS
floodplain lies. There are no federally
produced maps depicting the boundary
of the FFRMS-floodplain established by
the FVA or CISA, and FEMA maps
depicting the 0.2 percent annual
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floodplain are only available in some
areas. However, a map of the FFRMS
floodplain is not required to determine
if the location of a proposed Federally
Funded Project is within the FFRMS
floodplain. The floodplain
determination can generally be made by
comparing the ground elevation at the
proposed site to the elevation
established using the applicable FFRMS
approach. If the ground elevation is less
than the FFRMS elevation, than the site
is in the FFRMS floodplain. Therefore,
in order to complete the floodplain
determination, FEMA intends to rely on
two-dimensional information on a map
to determine the location of the
proposed site relative to the FFRMS
floodplain. To do so, FEMA will need
point information on (1) the FFRMS
elevation and (2) the ground elevation of
the proposed site. Once FEMA
establishes the FFRMS elevation and the
ground elevation based on available
information, FEMA would compare the
two values to determine if the proposed
FEMA Federally Funded Project
location is in the FFRMS floodplain.
Establishing the FFRMS Elevation
Under Each of the Approaches
In order to make the floodplain
determination and establish the proper
elevation under each approach, FEMA
intends to leverage its existing processes
in each of its grant programs for
ensuring compliance with Executive
Order 11988. Although the specifics of
the processes may vary somewhat from
program to program, FEMA generally
uses the following steps. During the
initial stages of project development,
FEMA informs applicants of all
applicable Federal, State and local
requirements which might apply to their
projects to include Executive Order
11988 and the 8-step process. Once
applicants have identified potential
projects, FEMA works with them to
assess the proposed project location and
determine whether it is in the
floodplain and therefore whether it is
necessary to apply the 8-step process.
FEMA is available to assist applicants
with the 8-step process and FEMA
reviews the project application to
ensure that the project scope of work is
in compliance with Executive Order
11988 requirements. FEMA will
continue to perform these steps in its
implementation of Executive Order
13690 and the FFRMS. When making
the floodplain determination under the
FFRMS, FEMA intends to investigate
what flood information is available in
order to select the best available
information.42 FEMA would rely on a
42 See
§ 9.7(c)(1)(iii) of this proposed rule.
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range of available data to establish the
FFRMS elevation for each of the
approaches.
The FFRMS–CISA elevation is
established using the best available,
actionable climate-informed science.
The Revised Guidelines provide
guidance to agencies on the application
of the CISA approach in coastal and
riverine areas.43 In particular, FEMA
will use Appendix H of the Revised
Guidelines titled ‘‘Climate-Informed
Science Approach and Resources’’ to
guide its decision-making. Appendix H
outlines guidance on risk-based framing
(i.e., how agencies may consider current
and future flood risks over the lifetime
of the investment/project) followed by
specific considerations and methods to
consider climate change. Because the
CISA uses a scenario-based analysis to
establish an elevation by assessing a
range of possible future conditions and
considering the nature of the affected
action, the anticipated lifecycle of the
action, and the tolerance for risk
associated with the action, use of the
CISA would be based on project-specific
decisions. FEMA may consider
information presented by the applicant
or any other Federal agency in this
evaluation and will ultimately
determine whether the methodology is
appropriate for the action being
considered and meets the relevant
criteria.
FEMA recognizes that the FFRMS–
CISA is a new and developing process
and that there is uncertainty in the
considerations and factors that will
come up during an FFRMS–CISA
analysis. As such, FEMA is not able to
develop an exhaustive set of regulatory
criteria for determining whether a given
methodology or elevation is appropriate.
However, FEMA recognizes that
regulatory transparency reduces
uncertainty for its grantees, and it will
consider providing further guidance and
information in the future as the agency’s
experience in implementing FFRMS–
CISA grows.
Appendix H of the Revised
Guidelines provides the following
criteria to define the CISA, which FEMA
will consider when developing further
guidance and information: (1) Uses
existing sound science and engineering
methods (e.g., hydrologic and hydraulic
analysis and methodologies) as have
historically been used to implement
Executive Order 11988, but
supplemented with best available
climate-related scientific information
when appropriate (depending on the
43 See
the Revised Guidelines at Appendix H
‘‘Climate-Informed Science Approach and
Resources.’’
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57413
agency-specific procedures and type of
federal action); (2) is consistent with the
climate science and related information
found in the latest National Climate
Assessment report or other bestavailable, actionable science; (3)
combines information from different
disciplines (e.g., new perspectives from
the atmospheric sciences,
oceanographic sciences, coastal
sciences, and hydrologic sciences in the
context of climate change) in addition to
traditional science and engineering
approaches; and, (4) includes impacts
from projected land cover and land use
changes (which may alter hydrology due
to increased impervious surface), longterm coastal and/or riverine erosion,
and vertical land movement (for
determining local changes to sea level)
expected over the lifecycle of the action.
The FFRMS describes the FFRMS–
FVA elevation as the addition of 2 or 3
feet to the 1 percent annual chance
flood elevation. FEMA would leverage
the process described in 44 CFR
9.7(c)(1)(iii) to search for the best
available flood hazard information to
establish the 1 percent annual chance
flood elevation. This process recognizes
that information on flood hazards at
proposed sites may range from detailed
data obtained from FEMA flood studies,
to information which approximates the
geographic area of the floodplain, to
areas with no information. Where FEMA
has issued a detailed study, FEMA
could obtain the 1 percent annual
chance flood elevation from the FIRM or
FIS. In areas where FEMA has issued a
limited study, FEMA would then seek
detailed information from the list of
sources in 44 CFR 9.7(c)(1)(iii)(B)(1)–(8).
For example, where an effective FIRM
displays a 1 percent annual floodplain
with limited detail, local sources such
as a Floodplain Administrator, Flood
Control Districts, or Transportation
departments may have detailed
information on file which was produced
for development within the floodplain,
for watershed plans, or for infrastructure
designs. Where detailed information is
not available from FEMA studies or
other sources, but approximate flood
information is available from a FEMA
FIRM, FEMA may use simplified
methods to develop a 1 percent annual
chance flood elevation as presented in
FEMA publication 265, entitled
‘‘Managing Floodplain Development in
Approximate A zones: A Guide for
Obtaining and Developing Base (100Year) Flood Elevations.’’ 44 A 1 percent
44 FEMA, Managing Floodplain Development in
Approximate Zone A: A Guide for Obtaining and
Developing Base (100-Year) Flood Elevations
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annual chance flood elevation
developed using a simplified approach
may yield an acceptable level of
accuracy for the purpose of establishing
whether a proposed FEMA Federally
Funded Project is within the FFRMS–
FVA floodplain. Where no flood hazard
information is available, or where more
accurate information on the 1 percent
annual chance elevation is necessary for
the purposes of complying with other
sections of Part 9, such as § 9.11, FEMA
publication 265 also provides guidance
on detailed engineering methodologies
to develop a 1 percent annual chance
flood elevation. FEMA may rely on staff
engineers to complete the engineering
analysis, or FEMA may rely on
information submitted as part of an
application, where the applicant has
obtained design and engineering
services to develop the project scope of
work.
The FFRMS–0.2PFA elevation is the
elevation of the 0.2 percent annual
chance flood. If FEMA were to use this
approach in the future, FEMA could
follow the same process to establish the
0.2 percent annual chance flood
elevation as it would to establish the 1
percent annual chance flood elevation.
FEMA would first rely on the 0.2
percent annual chance flood elevation
reported in a FEMA FIS, then seek
information from additional sources,
before finally seeking the assistance of
an engineer.
Establishing the Ground Elevation
FEMA may use available topographic
information from the USGS to establish
the ground elevation for a proposed
location of a FEMA Federally Funded
Project. Additionally, FEMA may also
rely on information on the ground
elevation submitted by an applicant as
part of their project application.
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IV. Discussion of the Proposed Rule
As noted above, this proposed rule
would implement Executive Order
13690, the FFRMS, and the Revised
Guidelines as part of FEMA’s floodplain
management regulations. Below, we
provide a brief summary of a number of
the major provisions of the proposed
rule, followed by a section-by-section
description of these and other changes.
Major Provisions
Conforming Changes to Definitions
FEMA proposes to amend § 9.4 to
reflect the new definitions required by
Executive Order 13690 and the FFRMS.
As noted above, the most significant
definitional change introduced by
(1995), available at https://www.fema.gov/medialibrary/assets/documents/1911.
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Executive Order 13690 and the FFRMS
is the change to the meaning of
‘‘floodplain.’’ As discussed in more
detail below, in order to harmonize this
change in § 9.4 FEMA proposes to revise
a number of existing definitions, and
remove other definitions. In addition,
FEMA proposes to revise the remaining
sections of 44 CFR part 9 that refer
generally to the floodplain, or refer
specifically to the base (or 100-year)
floodplain or the 500-year floodplain,
for clarity.
Distinction Between ‘‘FEMA Federally
Funded Projects’’ and Other FEMA
Actions
As noted above, the first Step in the
8-step process is to determine whether
the proposed action is in the floodplain.
Because Executive Order 13690 and the
October 8, 2015 version of FFRMS
revise the definition of the ‘‘floodplain’’
that must be used for ‘‘Federally Funded
Projects,’’ FEMA proposes to revise the
first Step to require FEMA to first
determine whether the proposed action
falls within the definition of ‘‘FEMA
Federally Funded Project.’’ Under the
proposed rule, if FEMA determines that
the action is a FEMA Federally Funded
Project, i.e., if FEMA determines that the
action uses FEMA funds for new
construction, substantial improvement,
or to address substantial damage to a
structure or facility, the FFRMS
floodplain applies. If, on the other hand,
FEMA determines that the action does
not fall under the definition of a FEMA
Federally Funded Project, the 1 percent
annual chance floodplain (or the 0.2
percent annual chance floodplain for
critical actions) applies.
Emphasis on Nature-Based Approaches
Executive Order 13690 requires that
agencies use, where possible, natural
systems, ecosystem processes, and
nature-based approaches in the
development of alternatives for Federal
actions in the floodplain. FEMA
proposes to incorporate this
requirement into § 9.9, which addresses
the requirement to consider practicable
alternatives when determining whether
to locate an action in the floodplain.
This requirement applies regardless of
whether the proposed action is a FEMA
Federally Funded Project. To further
explain this requirement, FEMA
proposes to add a definition of ‘‘naturebased approaches,’’ meaning features
designed to mimic natural processes
and provide specific services such as
reducing flood risk and/or improving
water quality.
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Section-by-Section Analysis
A. Authority Citation
FEMA proposes to add a reference to
Executive Order 13690.
B. Section 9.1—Purpose of Part
FEMA proposes to add ‘‘as amended’’
to reflect Executive Order 13690’s
amendment of Executive Order 11988.
C. Section 9.2—Policy
FEMA proposes to add language to
paragraph 9.2(b)(3) to reflect the policy
statement from Executive Order 13690
that the United States must improve the
resilience of communities and Federal
assets against the impacts of flooding
based on the best-available and
actionable science. This statement of
policy is complementary to the
longstanding goals of Executive Order
11988 to reduce the risk of flood loss,
but reflects an updated Federal policy of
resilience and risk reduction that takes
the effects of climate change and other
threats into account.
D. Section 9.3—Authority
FEMA proposes to add reference to
Executive Order 13690, which amended
Executive Order 11988.
E. Section 9.4—Definitions
In Section 9.4, FEMA proposes to add
terms for ‘‘0.2 Percent Annual Chance
Flood,’’ ‘‘0.2 Percent Annual Chance
Floodplain,’’ ‘‘1 Percent Annual Chance
Flood or Base Flood,’’ ‘‘1 Percent
Annual Chance Flood Elevation or Base
Flood Elevation,’’ ‘‘1 Percent Annual
Chance Floodplain or Base Floodplain,’’
‘‘Associate Administrator,’’ ‘‘Emergency
Work,’’ ‘‘Federal Flood Risk
Management Standard (FFRMS),’’
‘‘Federal Flood Risk Management
Standard Floodplain,’’ ‘‘FEMA
Federally Funded Project,’’ FIMA, and
‘‘Nature-Based Approaches;’’ to remove
the definitions of ‘‘Base Flood,’’ ‘‘Base
Floodplain,’’ ‘‘Emergency Actions,’’
‘‘Five Hundred Year Floodplain,’’ and
‘‘Mitigation Directorate;’’ and to revise
the definitions of ‘‘Critical Action,’’
‘‘Floodplain,’’ ‘‘New Construction,’’
‘‘Orders,’’ and ‘‘Substantial
Improvement.’’
0.2 Percent Annual Chance Flood.
FEMA proposes to define the term ‘‘0.2
percent annual chance flood’’ to mean
the flood which has a 0.2 percent
chance of being equaled or exceeded in
any given year. This was previously
known as the ‘‘500-year flood.’’ FEMA
proposes to use the term ‘‘0.2 percent
annual chance flood’’ and discontinue
using that term interchangeably with the
term ‘‘500-year flood.’’ The term ‘‘500year flood’’ can cause confusion as it
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could be interpreted to mean that the
area will only flood once every 500
years, instead of reflecting its true
meaning, which is the annual risk of
flooding in the area.
0.2 Percent Annual Chance
Floodplain. FEMA proposes to define
the term ‘‘0.2 percent annual chance
floodplain’’ to mean the area subject to
flooding by the 0.2 percent annual
chance flood.
1 Percent Annual Chance Flood or
Base Flood. FEMA proposes to retitle
the current definition of ‘‘base flood’’ as
‘‘1 percent annual chance flood or base
flood.’’ This reflects the fact that
Executive Order 13690 uses the term
‘‘base flood’’ and the Revised Guidelines
use the term ‘‘1 percent annual chance
flood.’’ There is no substantive
difference between the two terms and
they may be used interchangeably. The
‘‘1 percent annual chance flood’’ means
the flood that has a 1 percent chance of
being equaled or exceeded in any given
year. In the current definition of ‘‘base
flood,’’ the term is also equated with the
‘‘100-year flood;’’ however, FEMA
proposes to discontinue use of the term
‘‘100-year flood’’ because this term can
cause confusion. It can be interpreted to
mean that the area will only flood once
every 100 years instead of reflecting its
true meaning, which is the annual risk
of flood in the area.
1 Percent Annual Chance Flood
Elevation or Base Flood Elevation.
FEMA proposes to define the term ‘‘1
percent annual chance flood elevation
or base flood elevation’’ to mean the
computed elevation to which floodwater
is anticipated to rise during the 1
percent annual chance flood or base
flood. FEMA also proposes to
incorporate the explanation from the
current definition of ‘‘base flood’’ about
how the term is used in the NFIP to
indicate the minimum level of flooding
to be used by a community in the
community’s floodplain management
regulations. The elevation indicates how
high to elevate a structure in order to
protect it from the risk of flooding in a
base flood.
1 Percent Annual Chance Floodplain
or Base Floodplain. FEMA proposes to
define the term ‘‘1 percent annual
chance floodplain or base floodplain’’ to
mean the area subject to flooding by the
1 percent annual chance flood or base
flood. A floodplain is generally a
lowland or flat area near water that has
a greater chance of flooding than higher
areas and areas farther from water. This
definition would describe the minimum
area that FEMA looks at when it
determines whether an action will take
place in a floodplain.
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Associate Administrator. FEMA
proposes to define ‘‘Associate
Administrator’’ as the Associate
Administrator of the Federal Insurance
and Mitigation Administration. This
reflects the current title of this position,
and adding it to the definitions section
allows for ease of use throughout Part 9,
rather than having to reprint the entire
title each time it is used.
Base Flood and Base Floodplain.
FEMA proposes to remove the
definitions of the ‘‘base flood’’ and
‘‘base floodplain’’ as FEMA proposes to
incorporate them in the definitions of
the ‘‘1 percent annual chance flood or
base flood’’ and ‘‘1 percent annual
chance floodplain or base floodplain.’’
Critical Action. FEMA proposes to
revise the definition of ‘‘critical action’’
to remove the requirement that the
minimum floodplain of concern in the
event of a critical action is the 500-year
floodplain. There would no longer be a
set requirement that an applicant use a
particular approach to establishing the
floodplain when the project is a critical
action. Instead, FEMA and the applicant
would follow the sequence described in
§ 9.7 when making the floodplain
determination. FEMA would be
required to determine whether the
project meets the new definition of
‘‘FEMA Federally Funded Project’’ in
§ 9.4. If the project is a Federally
Funded Project, then FEMA would
establish the floodplain by using one of
the FFRMS approaches (which require
the applicant to consider whether an
action is a critical action). If the project
is not a Federally Funded Project, then
FEMA would use, at a minimum, the 1
percent annual chance floodplain for
non-critical actions and the 0.2 percent
annual chance floodplain for critical
actions.
Emergency Work. The current
definition of ‘‘emergency actions’’ is
emergency work essential to save lives
and protect property and public health
and safety performed under certain
sections of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act (Stafford Act) and
corresponding FEMA regulations.
FEMA proposes to change the term to
‘‘emergency work’’ to clearly
differentiate between the work under
the specific sections of the Stafford Act
that was exempted entirely from the
requirements of Executive Order 11988
and the new exceptions to the
application of the FFRMS (which
include non-specific references to
emergency actions) created by Executive
Order 13690. FEMA also proposes to
update the citations to the specific
sections of the Stafford Act and FEMA
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regulations, as the citations are outdated
in the current definition.
Federal Flood Risk Management
Standard (FFRMS). FEMA proposes to
add a definition of ‘‘FFRMS,’’ which is
the Federal flood risk management
standard established by Executive Order
13690 to be incorporated into existing
processes used to implement Executive
Order 11988. FEMA proposes to add a
definition for FFRMS because this rule
proposes to implement it and therefore
refers to it throughout the proposed
changes to Part 9.
Federal Flood Risk Management
Standard (FFRMS) Floodplain. FEMA
proposes to define the ‘‘FFRMS
floodplain’’ consistent with the
definition in Executive Order 13690,
which is the floodplain that is
established using one of four
approaches: CISA, FVA, 0.2PFA, and
the elevation and flood hazard area that
result from using any other method
identified in an update to the FFRMS.
FEMA proposes to define the ‘‘CISA’’
as the elevation and flood hazard area
that result from using the best-available,
actionable hydrologic and hydraulic
data and methods that integrate current
and future changes in flooding based on
climate science. This approach will also
include an emphasis on whether the
action is a critical action as one of the
factors to be considered when
conducting the analysis.
FEMA proposes to define the ‘‘FVA’’
as the elevation and flood hazard area
(the horizontal extent of the floodplain)
that result from using the freeboard
value, reached by adding an additional
2 feet to the base flood elevation for
non-critical actions and by adding an
additional 3 feet to the base flood
elevation for critical actions.
FEMA proposes to define the
‘‘0.2PFA’’ as the area subject to flooding
by the 0.2 percent annual chance flood.
The 0.2 percent annual chance flood is
a flood that has a 0.2 percent chance of
happening in any given year. It is a
flood that covers greater area that is less
frequent than the 1 percent chance
floodplain.
Finally, FEMA proposes to add a
fourth approach, the elevation and flood
hazard area that result from using any
other method identified in an update to
the FFRMS.
FEMA Federally Funded Project.
FEMA proposes to add a definition of
‘‘FEMA Federally Funded Project’’ to
mean actions where FEMA funds are
used for new construction, substantial
improvement, or to address substantial
damage to a structure or facility.
FEMA’s proposed definition mirrors the
language in the FFRMS and the Revised
Guidelines.
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FIMA. FEMA proposes to revise the
definition of the Federal Insurance
Administration to mean the Federal
Insurance and Mitigation
Administration to reflect the current
title of the organization.
Five Hundred Year Floodplain. FEMA
proposes to remove the definition of the
five hundred year floodplain as a
standalone term and designated
floodplain and to instead substitute the
term to 0.2 percent annual chance
floodplain. The 0.2 percent annual
chance floodplain is the floodplain
covering an area where the chance of
flood is 0.2 percent in any given year.
Floodplain. FEMA currently defines
‘‘floodplain’’ as the lowland and
relatively flat areas adjoining inland and
coastal waters including, at a minimum,
that area subject to a 1 percent or greater
chance of flooding in any given year.
FEMA proposes to revise the definition
to remove the phrase ‘‘including, at a
minimum, the area subject to a one
percent or greater chance of flooding in
any given year.’’ This is because the
FFRMS expands the consideration from
the 1 percent annual chance (base)
floodplain.
The current definition also states that
wherever the term ‘‘floodplain’’ appears
in Part 9, if a critical action is involved,
‘‘floodplain’’ means the area subject to
inundation from a flood having a 0.2
percent chance of occurring in any
given year (500-year floodplain). FEMA
proposes to remove this provision from
the definition of floodplain because
there is no longer a set requirement that
an applicant use a particular approach
to establishing the floodplain when
there is a critical action. Instead, FEMA
and the applicant must follow the
sequence described in § 9.7 when
making the floodplain determination.
FEMA must determine whether the
project meets the new definition of
‘‘FEMA Federally Funded Project’’ in
§ 9.4. If the project is a FEMA Federally
Funded Project, then FEMA must
establish the floodplain by using one of
the FFRMS approaches (which require
the applicant to consider whether an
action is a critical action). If the project
does not meet the definition of FEMA
Federally Funded Project (i.e. the
project is not ‘‘new construction,
substantial improvement, or repairs to
address substantial damage to a
structure or facility’’), then FEMA must
use, at a minimum, the 1 percent annual
chance floodplain for non-critical
actions and the 0.2 percent annual
chance floodplain for critical actions.
FEMA proposes to add that the
floodplain may be more specifically
categorized as the 1 percent annual
chance (base) floodplain, the 0.2 percent
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annual chance floodplain, or the FFRMS
floodplain (as defined above).
‘‘Floodplain’’ is a flexible, general term,
but in establishing the correct
floodplain to use, it will be necessary to
determine whether the action is a
Federally Funded Project and whether it
is a critical action.
Mitigation Directorate. FEMA
proposes to remove the definition of the
‘‘Mitigation Directorate’’ as it is now
included in the definition of ‘‘FIMA.’’
Nature-Based Approaches. FEMA
proposes to add a definition of ‘‘naturebased approaches.’’ Executive Order
13690 added a provision requiring
agencies to use nature-based approaches
where possible and this term has not
previously been defined. FEMA
proposes to define nature-based
approaches as the features (sometimes
referred to as ‘‘green infrastructure’’)
designed to mimic natural processes
and provide specific services such as
reducing flood risk and/or improving
water quality. Nature-based approaches
are created by human design (in concert
with and to accommodate natural
processes) and generally, but not
always, must be maintained in order to
reliably provide the intended level of
service. Nature-based approaches are
sometimes referred to as green
infrastructure and may include, for
example, green roofs, or downspout
disconnection that reroutes drainage
pipes to rain barrels, cisterns, or
permeable areas instead of the storm
sewer. The proposed definition mirrors
the language of the WRC Revised
Guidelines.
New Construction. FEMA proposes to
remove the parenthetical ‘‘including the
placement of a mobile home’’ from the
definition of new construction because
retaining the clause would have
unintended effects, given the new
definition of FEMA Federally Funded
Projects. The application of the FFRMS
is required for any action which meets
the definition of ‘‘Federally Funded
Project.’’ ‘‘FEMA Federally Funded
Project’’ is defined as an action where
FEMA funds are used for new
construction, substantial improvement,
or to address substantial damage to a
structure or facility. If FEMA continued
to define the placement of a mobile
home as ‘‘new construction,’’ it would
be required to apply the FFRMS to any
placement of a mobile home. As
described further in the discussion of
§ 9.13, FEMA does not intend to require
the application of the FFRMS in the
placement of mobile homes for the
purpose of temporary housing.
Orders. FEMA proposes to revise the
definition of ‘‘orders’’ to include
Executive Order 13690.
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Substantial Improvement. FEMA
proposes to update the reference to the
Stafford Act, because the citation is
outdated in the current definition.
F. Section 9.5—Scope
FEMA proposes to add an effective
date provision to this section, indicating
that the revisions proposed to Part 9,
which implement the changes required
by Executive Order 13690 and the
FFRMS, would apply to new actions
that are commenced on or after the
effective date of the final rule. This is to
clarify that current Part 9, including use
of the base floodplain (or 500-year
floodplain for critical actions), would
still apply to actions that are in the
planning or development stage or
undergoing implementation as of the
effective date of the final rule revising
Part 9. Only new actions would be
subject to revised Part 9 so that the
changes would not be applied
retroactively to projects which have
already been reviewed for compliance
with Executive Order 11988 and may
have incurred designed expenses to
meet the current floodplain
management standards. Any new
actions would be subject to revised Part
9, including the changes required under
Executive Order 13690 and the FFRMS,
such as determining whether to use the
base floodplain or FFRMS floodplain for
the action and using nature-based
approaches to mitigate harm when
development in the floodplain is not
avoidable.
FEMA proposes to update the
citations to the Stafford Act sections and
references to organizations and titles in
paragraphs (c)–(g) as they are not
current. FEMA also proposes to update
paragraph (c)(8) as it refers to a defunct
title for the Individuals and Households
program and includes programs that no
longer exist.
FEMA also proposes to eliminate the
cross references in the last sentence of
paragraph 9.5(f)(1), because they relate
to regulatory provisions (44 CFR
9.9(e)(6) and 9.11(e)(4)) that FEMA
proposes to remove in this rule. FEMA
describes its rationale for eliminating
the cited text later in this preamble.
G. Section 9.6—Decision-Making
Process
Section 9.6 sets out the floodplain
management and wetlands protection
decision-making process to be followed
by FEMA in applying Executive Orders
11988 and 11990 to its actions. There
are eight Steps the agency must follow.
Step 1 states that FEMA will determine
whether the proposed action is located
in the 100-year floodplain or, for critical
actions, the 500-year floodplain. FEMA
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proposes to remove the specific
requirement to use the 100-year (1
percent annual chance) floodplain or
500-year (0.2 percent annual chance)
floodplain for critical actions and
instead use the general term
‘‘floodplain.’’ Instead, FEMA proposes
to refer the reader to section 9.7(c) of the
regulations, which describes (1) the
flexible framework that FEMA would
apply to FEMA Federally Funded
Project under Executive Order 13690
and the FFRMS, as well as (2) the
historical framework that FEMA would
continue to apply to actions that do not
qualify as FEMA Federally Funded
Projects.
H. Section 9.7—Determination of
Proposed Action’s Location
Paragraph (a) of section 9.7 states that
the purpose of the section is to establish
FEMA’s procedures for determining
whether any action as proposed is
located in or affects the base floodplain
(or the 500-year floodplain for a critical
action) or a wetland (i.e., Step 1 of the
8-step decision-making process
described in section 9.6). As in section
9.6, FEMA proposes to simply refer to
‘‘floodplain’’ rather than base floodplain
or 500-year floodplain, because
Executive Order 13690 and the FFRMS’s
flexible framework to determining
which floodplain is appropriate
depending on the type and criticality of
the action means the floodplain must be
established using the process set forth in
paragraph 9.7(c) and may be something
other than the floodplain established
using the 1 percent annual chance flood
or 0.2 percent annual chance flood.
Paragraph (b) of § 9.7 states that
information about the 100-year and 500year floods may be needed to comply
with the regulations in Part 9. FEMA
proposes to update this statement to
reflect that information about the 1
percent annual chance (base) floodplain,
0.2 percent annual chance floodplain,
and the FFRMS floodplain may be
needed.
Paragraph (c) of § 9.7 outlines the
sequence FEMA must follow in making
the floodplain determination. FEMA
proposes to implement the change to the
definition of floodplain required by
Executive Order 13690 and the FFRMS
in § 9.7(c), ‘‘Floodplain determination.’’
As an initial step, FEMA would
determine whether the project is a
FEMA Federally Funded Project as
defined in § 9.4. If the project is a FEMA
Federally Funded Project, FEMA would
establish the FFRMS floodplain and
associated flood elevation using one of
the four approaches outlined in the
proposed section. For example, FEMA
would likely be required to apply the
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FFRMS floodplain to construction
projects under FEMA’s Public
Assistance program authorized under
Section 406 of the Stafford Act, Hazard
Mitigation Grant Program authorized
under Section 404 of the Stafford Act,
and Flood Mitigation Assistance
Program authorized under Section 1366
of the National Flood Insurance Act.
However, it is likely that certain other
grant programs or actions would not be
required to apply the FFRMS
floodplain, because the actions funded
do not involve construction activities.
This may include grants provided for
disaster planning through FEMA’s PreDisaster Mitigation Program authorized
under Section 203 of the Stafford Act
and grants for planning and training
awarded through programs
administered by FEMA’s Protection and
National Preparedness Office. Each
grant program FEMA funds would be
required to determine whether the 1
percent annual chance, 0.2 percent
annual chance, or FFRMS floodplain
applies to the particular action.
FEMA proposes to implement the
FFRMS in its regulations by adopting
the flexible framework proposed in
Executive Order 13690 in its entirety,
instead of mandating a particular
approach. Under this proposal, FEMA
would provide additional guidance
(more readily capable of revisions and
updates) that addresses which approach
FEMA would use for different types of
actions and how FEMA would tailor its
application of the various approaches
depending on the type and criticality of
the action. Executive Order 13690
makes clear that the intent of providing
a flexible framework is to acknowledge
that the impacts of flooding are
anticipated to increase over time due to
the effects of climate change and other
threats. In order to determine what
those impacts may be, there is value in
using the best-available, actionable
hydrologic and hydraulic data and
methods that integrate current and
future changes in flooding based on
climate science, rather than relying
solely upon the 1 percent annual chance
flood standard, which does not account
for or provide any factor of safety to
mitigate against the possibility that
flood risk may increase over time.
Executive Order 13690 provides an
exception to use of the FFRMS when the
action is in the interest of national
security, where the action is an
emergency action, where application to
a Federal facility or structure is
demonstrably inappropriate, or where
the action is a mission-critical
requirement related to a national
security interest or an emergency action.
FEMA proposes to adopt these
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exceptions in their entirety. It is
important to note that an exception to
using the FFRMS under any of the
reasons listed in this section does not
exempt the action from the
requirements of Executive Order 11988
altogether. Instead, if one of FEMA’s
actions were excepted under this
provision, FEMA would still be required
to apply the 1 percent annual chance
floodplain for non-critical actions and
the 0.2 percent annual chance
floodplain for critical actions. FEMA
does have the authority to exempt
certain actions from any application of
the requirements of Executive Order
11988 and those actions which are
exempted are enumerated in Section
9.5(c).
FEMA proposes that if it determines
that the action is not a FEMA Federally
Funded Project, i.e., that the action does
not involve the use of FEMA funds for
new construction, substantial
improvement, or to address substantial
damage to a structure or facility, the
proposed action may be evaluated using
the 1 percent annual chance floodplain
for non-critical actions and the 0.2
percent annual chance floodplain for
critical actions. The sequence for
making that determination remains
relatively unchanged. The Regional
Administrator (RA) first consults the
FEMA FIRM, the FBFM and the FIS. If
neither a FIRM nor a FBFM is available,
the RA consults the FHBM. The
regulation provides a list of sources to
consult in the event the FHBM is not
available. FEMA proposes to update this
list of sources to those suggested in the
Revised Guidelines, which were
updated to reflect current titles and new
available resources.45 Finally, if none of
these sources have the information
necessary to comply with the Orders,
the RA seeks the services of an engineer
experienced in this type of work. If a
decision involves an area or location
within extensive Federal or State
holdings or a headwater area, and no
FIS, FIRM, FBFM, or FHBM is available,
FEMA seeks information from the land
administering agency before seeking
information and/or assistance from the
list of sources or an engineer.
Additionally, FEMA is proposing to
change the paragraph structure of § 9.7
for clarity.
I. Section 9.8—Public Notice
Requirements
The only proposed change is to
paragraph 9.8(c)(5)(ii), to correct a
typographical error.
45 FEMA proposes to update this list of sources
to reflect the WRC’s Revised Guidelines.
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J. Section 9.9—Analysis and
Reevaluation of Practicable Alternatives
FEMA proposes to add the
requirement to use natural systems,
ecosystem processes, and nature-based
approaches in the development of
alternatives for Federal actions in the
floodplain to § 9.9(b). Under § 9.9,
FEMA must make a preliminary
determination (Step 3 of the 8-step
process) as to whether the floodplain is
the only practicable location for the
action. Part of that analysis involves
considering whether there are
alternative actions that serve essentially
the same purpose as the proposed action
but which have less potential to affect
or be affected by a floodplain. Under
this proposed rule, during the course of
the aforementioned analysis, FEMA
would consider whether using natural
systems, ecosystem processes and
nature-based approaches might have
less of an effect on the floodplain.
FEMA proposes to remove paragraph
(d)(2) of § 9.9, which prohibits FEMA
from locating a proposed critical action
in the 500-year floodplain. This is
because under this proposed rule,
critical actions would no longer be
subject to a specific requirement related
to the 500-year floodplain. Instead,
FEMA would follow the sequence
described in § 9.7 when making the
floodplain determination. As noted
above, FEMA would determine whether
the project meets the new definition of
‘‘FEMA Federally Funded Project’’ in
§ 9.4. If FEMA determined that the
project is a FEMA Federally Funded
Project, then FEMA would establish the
floodplain by using one of the FFRMS
approaches (which require the applicant
to consider whether an action is a
critical action). If FEMA determined
that the project is not a FEMA Federally
Funded Project, then FEMA would use,
at a minimum, the 1 percent annual
chance floodplain for non-critical
actions and the 0.2 percent annual
chance floodplain for critical actions.
After FEMA completed that process, it
would apply the appropriate floodplain
to the remainder of the 8-step process.
Therefore, FEMA proposes to revise
paragraph (d)(1) to specify that the
‘‘floodplain’’ is the floodplain
established in § 9.7(c).
FEMA proposes to eliminate
paragraph 9.9(e)(6). Section 9.9(e)(6)
prohibits FEMA from providing a new
or renewed contract for flood insurance
for a structure if the Regional Director
has chosen the ‘‘no action’’ option
provided for in § 9.9(e)(5). This
provision was temporarily suspended
via a November 28, 1980 Federal
Register Notice of intent not to enforce
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certain regulation concerning denial of
flood insurance coverage. (45 FR 79069)
FEMA ultimately did not ever
implement this provision and does not
intend to do so now; therefore, FEMA is
proposing to remove it from the
regulation.
K. Section 9.11—Mitigation
FEMA proposes to remove the
reference to the base flood and the 500year flood from paragraph 9.11(c) and
instead reference the floodplain as
established in § 9.7(c) when describing
its intent to minimize potential harm to
lives and the investment at risk. Again,
this is because there is no longer a set
requirement related only to the base
floodplain or the 500-year floodplain
when there is a critical action. Instead,
FEMA must follow the sequence
described in § 9.7 when making the
floodplain determination.
In paragraph 9.11(d), FEMA proposes
to revise the text to reflect that the
minimization standards are applicable
to all of FEMA’s grant programs.
Currently, paragraph 9.11(d) states that
the minimization standards are
applicable to only FEMA’s
implementation of the Disaster Relief
Act of 1974. Some of FEMA’s grant
programs are authorized under other
legislation.
In paragraphs 9.11(d)(2) and
9.11(d)(3)(i)–(ii), FEMA proposes to
specifically require elevation of the
lowest floor of a building to the FFRMS
floodplain during the construction of
new or substantially improved
structures. As described above, FEMA
must follow the sequence described in
§ 9.7 when making the floodplain
determination. FEMA must determine
whether the project meets the new
definition of ‘‘FEMA Federally Funded
Project’’ in § 9.4. The definition of
‘‘FEMA Federally Funded Project’’ is an
action where FEMA funds are used for
new construction, substantial
improvement, or to address substantial
damage to a structure or facility.
‘‘Substantial Improvement’’ as defined
in § 9.4 includes all actions taken to
address substantial damage to a
structure or facility. Because paragraphs
9.11(d)(2) and 9.11(d)(3)(i)–(ii)
specifically reference new construction
or substantial improvement, FEMA
must establish the floodplain in these
circumstances by using one of the
FFRMS approaches (which require the
applicant to consider whether an action
is a critical action). FEMA multi-hazard
mitigation guidance can be consulted
for technical information on elevation
methods for new construction and the
retrofitting of existing structures with
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various types of foundations.46 For
example, in the case of structures with
basements, the structure may be
elevated on solid foundation walls by
creating a new masonry-enclosed area
on top of an abandoned and filled-in
basement or elevated on an open
foundation by filling in the old
basement.47 If the structure with a
basement is non-residential, the
applicant may elect to dry floodproof
the structure rather than elevate. In this
case, basements may be dry
floodproofed using the same techniques
as spaces above grade, including the
creation of continuous impermeable
walls, creating flood resistance in core
interior areas, adding sealants on
openings, installing flood shields for
openings in exterior walls, and
installing backflow valves and internal
drainage systems.48
For the same reasons as stated above,
in paragraph 9.11(d)(9), FEMA proposes
to remove the reference to the base flood
or, in the case of critical actions, the
500-year flood from paragraph 9.11(d)(9)
and instead reference the floodplain as
established in § 9.7(c) when describing
the requirements for the replacement of
building contents, material and
equipment.
FEMA proposes to revise paragraphs
9.11(e)(1) and (e)(2) by adding ‘‘and
Mitigation’’ to the title of the ‘‘Federal
Insurance Administration’’ to reflect the
current title of the organization, the
‘‘Federal Insurance and Mitigation
Administration.’’ FEMA also proposes
to revise paragraphs 9.11(e)(2)(ii),
9.11(e)(3)(i)(E), and 9.11(e)(3)(ii) by
replacing ‘‘FIA’’ with ‘‘FIMA’’ to again
reflect the change in title.
Finally, FEMA proposes to eliminate
paragraph 9.11(e)(4). Paragraph
9.11(e)(4) provides that where the
Regional Director has been precluded
from providing assistance for a new or
substantially improved structure in a
floodway, FEMA may not provide a new
or renewed policy of flood insurance for
that structure. As noted in the
regulation, this provision was
temporarily suspended via a November
28, 1980 Federal Register Notice of
intent not to enforce certain regulation
concerning denial of flood insurance
46 A catalogue of FEMA Building Science Branch
publications including descriptions of available
publications for natural hazards can be accessed at
https://www.fema.gov/media-library/assets/
documents/12909.
47 See FEMA, FEMA P–259 Engineering Principles
and Practices of Retrofitting Floodprone Residential
Structures (2012), available at https://www.fema.gov/
media-library/assets/documents/3001, at 5E–8.
48 FEMA, FEMA P–936, Flood Proofing of NonResidential Buildings (2013), available at https://
www.fema.gov/media-library/assets/documents/
34270, at 3–2.
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coverage. (45 FR 79069) FEMA
ultimately did not implement this
provision and does not intend to do so
now; therefore, FEMA is removing it
from the regulation.
L. Section 9.13—Particular Types of
Temporary Housing
FEMA proposes to specifically
designate the use of the 1 percent
annual chance (base) floodplain when
evaluating whether to take a temporary
housing action. See proposed
§ 9.13(d)(1). FEMA proposes to
specifically prohibit housing an
individual or family in the 1 percent
annual chance (base) floodplain, unless
the Regional Administrator has
complied with the provisions in
proposed § 9.9 to determine that the site
is the only practicable alternative. See
proposed § 9.13(d)(3). FEMA proposes
to designate the 1 percent annual
chance (base) floodplain as the
floodplain of choice when taking
temporary housing actions for several
reasons: (1) The temporary nature of the
assistance means there is not an
opportunity to improve community
resilience or floodplain management
long term, which is the intent of the
FFRMS; (2) expansion of the base
floodplain to the FFRMS floodplain and
prohibiting placement of temporary
housing in the FFRMS floodplain may
result in the temporary housing of
individuals and families many miles
from their homes, which is not
practicable; and (3) it is not always
feasible to elevate mobile homes, when
they are being placed as temporary
housing.
FEMA proposes to add the sentence
‘‘actual elevation levels will be based on
manufacturer specifications and
applicable Agency guidance’’ to reflect
the fact that it is not always feasible to
elevate mobile homes. See proposed
§ 9.13(d)(4)(i). Since mobile homes are
often the last resort for temporary
housing and they are being placed
temporarily, it is not always practicable
to elevate mobile homes to a given level.
However, the proposed rule would
require that such homes be elevated to
the fullest extent practicable.
In paragraph 9.13(d)(4)(ii), FEMA
proposes to substitute ‘‘44 CFR parts
59–60’’ for ‘‘44 CFR part 59 et seq.’’ to
be clear what specific sections of the
regulations the language references.
FEMA also proposes to require the
elevation of a mobile home to at least
the level of the FFRMS floodplain, if
FEMA intends to sell or otherwise
dispose of mobile homes in the FFRMS
floodplain. See proposed § 9.13(e)(2).
The reason for this requirement is that
any sale or disposal of a mobile home
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no longer constitutes temporary
housing; FEMA believes that any unit
intended for permanent placement
should be protected to the fullest extent
practicable, because the probability that
a flood will occur within the floodplain
is greater over the anticipated lifespan
of a permanent structure than a
temporary structure, and so the benefit
of hazard mitigation is greater to the
permanent structure than the temporary
structure. Further, any sale or disposal
of a mobile home must meet NFIP
requirements of residential structures by
elevating the lowest floor. Mobile homes
placed in the floodplain for the
purposes of temporary housing must
meet the criteria of the NFIP or any
more restrictive standards unless the
community has granted a variance. See
proposed § 9.13(d)(4)(ii).
Additionally, FEMA is proposing to
change the paragraph structure of § 9.13.
No substantive changes are intended as
a result of this restructuring.
M. Section 9.17—Instructions to
Applicants
In paragraph 9.17(a), FEMA proposes
to add ‘‘as amended’’ to reflect
Executive Order 13690’s amendment of
Executive Order 11988.
In paragraph 9.17(b), FEMA proposes
to update the reference to the WRC’s
1978 Guidelines to the full title for the
Revised Guidelines.
N. Section 9.18—Responsibilities
In paragraph 9.18(b), FEMA proposes
to update the references to the FIA and
the title of Associate Administrator.
In paragraph 9.18(b)(2), FEMA
proposes to add ‘‘as amended’’ to reflect
Executive Order 13690’s amendment of
Executive Order 11988.
O. Appendix A to Part 9—DecisionMaking Process for E.O. 11988
FEMA proposes to remove ‘‘Appendix
A to Part 9—Decision-Making Process
for E.O. 11988’’ in its entirety. The
graphic is no longer accurate. Further,
given that Executive Order 13690
deliberately created a flexible approach
to establishing the FFRMS and also
requires update of the FFRMS every 5
years, there is no utility to including the
appendix in regulation. Instead, FEMA
would include a revised version of the
appendix to include the new decisionmaking process and the definition of the
FFRMS floodplain in its policy
implementing the FFRMS.
V. Response to Leadership Intent
Comments
On November 17, 2015, FEMA’s
Federal Insurance and Mitigation
Administration released for public
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comment FEMA’s Overview of FEMA’s
Intent to Implement the FFRMS (Intent).
Continuing our commitment to an open,
collaborative, stakeholder-focused
process in implementing the FFRMS,
FEMA shared this framework for public
comment on FEMA’s Web site through
December 17, 2015.
FEMA received 12 comments in
response to the Intent. Of the 12
comments received, 10 comments were
supportive, 1 comment was opposed,
and 1 comment was not germane.49
The 10 comments received in support
of the Intent came from a variety of
sources, including local governments,
associations, environmental action
organizations, and commenters that
chose to reply in their private capacity.
Following is a discussion of the
comments submitted.
The adverse comment came from a
local government official. The official
stated that the CISA would be ‘‘a means
to extort money from citizens based on
a junk science forecasts/models of
which so called projections have been
outrageously inaccurate.’’ The
commenter did not provide any support
for the statement. FEMA disagrees with
the commenter’s assessment that
Climate-Informed Science Approach
(CISA) is based on ‘‘junk science
forecasts/models.’’ Scientists compare
models’ projections of historical climate
trends to the historical records climate
variables to measure the confidence of
the models’ abilities to accurately
predict future climate conditions.50
Many peer reviewed studies of climate
models have found in general that
climate model simulations of historical
global temperature and other climactic
variables are comparable to the
historical recorded observations of those
variables.51 These studies provide
confidence in accuracy of climate
models’ projections of future climate
conditions.
The 2014 United States National
Climate Assessment (Assessment)
concluded that ‘‘[g]lobal trends in
temperature and many other climate
variables provide consistent evidence of
49 The comments are available in the docket for
this rulemaking.
50 Risbey et al. 2014. Well-estimated global
surface warming in climate projections selected for
ENSO phase. ‘‘Nature Climate Change’’, 4, 835–840.
51 See Covey et al. 2003. An overview of results
from the coupled model intercomparison project
(CIMP). ‘‘Global and Planetary Change’’, 37, 103–
133; and Cubasch et al. 2013. Introduction. In:
‘‘Climate Change 2013: The Physical Science Basis.
Contribution of Working Group I to the Fifth
Assessment Report of the Intergovernmental Panel
on Climate Change’’ [Stocker et al. (eds)].
Cambridge University Press, Cambridge at 131.
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a warming planet.’’ 52 These trends ‘‘are
based on a wide range of observations,
analyzed by many independent research
groups around the world.’’ 53 The
Assessment reported that confidence is
very high 54 that global sea level has
risen during the past century and that it
will continue to rise, and there is
medium confidence that global sea level
rise will be in the range of 1–4 feet by
2100.55 The Assessment further reports
that although changes in overall
precipitation are uncertain in many U.S.
areas, there is high degree of certainty
that the heaviest precipitation events
will increase everywhere, and by large
amounts.56 The approaches to establish
a higher vertical elevation and
corresponding floodplain provided in
the FFRMS are intended to address
these future flood risks.
Within the 10 supportive comments,
the commenters provided suggestions
and asked questions concerning FEMA’s
proposed framework. One local
government agreed that the CISA should
be used in ‘‘calculating the [FFRMS]
flood level and floodplain,’’ but stated
that:
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[Allowing a different set of standards for
FFRMS and NFIP not only allows for noncompliance with the NFIP i[t] encourages it.
How will FEMA discipline a community for
not complying with the NFIP when they
provided the funding for the project under
FFRMS. This is a double standard and will
create legal issues if not revised.
FEMA disagrees that implementing
the FFRMS encourages noncompliance
with NFIP standards. FEMA
acknowledges that it is proposing to
provide an option to use the CISA for
critical facilities, but notes that under
this proposal, the CISA would only be
allowed if the elevation is higher than
the elevation established using the FVA.
This precaution would eliminate the
possibility that the CISA elevation used
for a FEMA Federally Funded Project
would be less than the base flood
elevation required as the minimum
standard of the NFIP. Additionally,
FEMA has complied and will continue
to comply with local floodplain
management standards that are more
restrictive. FEMA is not proposing to
amend § 9.11(d)(6), which prohibits
FEMA from taking any action that is
inconsistent with the NFIP standards or
52 Walsh et al. 2014: Ch. 2: Our Changing Climate.
‘‘Climate Change Impacts in the United States: The
Third National Climate Assessment,’’ J. M. Melillo,
Terese (T.C.) Richmond, and G. W. Yohe, Eds., U.S.
Global Change Research Program, 19–67.
53 Id.
54 ‘‘Very high’’ is the highest confidence level
used in the Assessment. See id. at 61.
55 Id. at 66.
56 Id. at 33.
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any more restrictive Federal, State, or
local floodplain management standards.
One commenter was concerned with
the issue of coordination between
Federal agencies, stating:
The Background [to the Intent document]
states that ‘‘Federal agencies have the
flexibility to select from the approaches of
the FFRMS to establish the floodplain for a
given action.’’ While flexibility may be
warranted, the interagency coordination
provision must come into play in
establishing the ‘‘floodplain’’ by various
agencies. The Framework language needs to
be revised from ‘‘. . . should coordinate
early . . .’’ to ‘‘. . . shall coordinate early.’’
This needs to be a required action whereby
the most protective, conservative delineation
of the floodplain is achieved and applied by
all [F]ederal agencies for all purposes.
FEMA agrees with this comment and
in the supplementary policy, FEMA
proposes that when FEMA is funding a
FEMA Federally Funded Project with,
or in the same area as, another Federal
agency, FEMA will coordinate with the
applicable Federal agency early in the
planning process.
Multiple commenters stated that the
use of the FVA may create a
disincentive to update flood maps.
Their concern was that the use of the
FFRMS–FVA rather than the FFRMS–
CISA might create a sense that flood
map updates and associated funding are
less critical because of the safety
standard provided by freeboard.
Commenters stated that:
[t]he freeboard provision is a positive,
protective step, however, it should not
become a default standard to replace updated
flood mapping.
FEMA disagrees with the statement
that using the FVA will eliminate the
desire to update flood maps. FEMA has
stated that the FFRMS will not affect
FEMA’s flood mapping standards.
While FEMA’s FIS and FIRMs may be
used as sources of best available
information to establish the FFRMS
elevation, the primary function of FIS
and FIRMs is not to establish the
FFRMS. The production of FIS and
FIRMs are managed for other purposes,
such as to serve the mission of the NFIP.
Two commenters requested that
FEMA address how changing flood
hazard information will be used in
establishing the FFRMS elevation. One
commenter stated:
[i]n all the talk I hear about flood
mitigation and resolution I never hear any
discussion as how standard measurements,
what you call base line, do not take into
account or even look at how those base lines
have moved due to erosion.
Another commenter asked:
On occasion, FEMA has issued Advisory
Base Flood Elevations (ABFEs) following a
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major flooding event, when it has been
determined that the effective [Base Flood
Elevations (BFEs)] significantly
underestimate the base flood [. . .] What will
FEMA consider to be the advisory ‘‘BFE’’
when adding freeboard under EO 13690?
Section 2(a)(1) of the Executive Order
directs agencies to use approaches based
on the best available information and
FEMA’s effective FIRM. Because flood
risk can change over time, FEMA’s
mapping program continually updates
its inventory of flood hazard
information. Flood zone designations
may be established or revised when new
and more accurate information becomes
available because of a FEMA-contracted
restudy or because the community
makes the information available to
FEMA. More accurate information may
include more accurate or updated
topographic information which would
capture changes in the ground elevation
due to factors including erosion.
Information from a preliminary FIRM or
ABFE may serve as best available
information if the information shows
that a site previously located outside the
floodplain is now in the floodplain, or
that the existing FEMA Base Flood
Elevation has increased. In response to
the commenter’s question, when
determining what is the appropriate
‘‘BFE’’ when adding freeboard under
Executive Order 13690, FEMA would
use the best available information.
One comment received from a local
government stated that the FVA is onesize fits-all, and the FVA would not
reflect local conditions when
establishing the FFRMS elevation.
FEMA uses the best available
information to establish the base flood
elevation, which reflects local flooding
conditions. Therefore, FEMA disagrees
with the comment that the FVA would
not reflect local conditions.
Five commenters stated that FEMA
should use the 0.2 percent annual
chance floodplain approach (500-year
floodplain) to establish the minimum
FFRMS elevation and floodplain for
critical actions. One commenter stated
that:
In some instances, the 500-year floodplain
may provide a higher elevation than the other
options, and in those instances the 500-year
floodplain should be used. Critical actions
are actions for which even a slight chance of
flooding would be too great. As such, an all
three FFRMS approaches should be
considered to achieve the highest level of
protection.
Another commenter stated the FVA
may provide too restrictive a standard
when the FVA elevation is higher than
the 0.2 percent annual chance
floodplain elevation:
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For example, in areas where the 500-year
water surface is less than 2 feet above the
100-year water surface, the freeboard value
approach may be overly conservative and go
well above the 500-year level protection.
FEMA recognizes that the FVA may
be more or less conservative than the
0.2PFA. However, FEMA is proposing
in the supplementary policy to select to
use the FVA but not the 0.2PFA. FEMA
feels it is more pragmatic to only
establish the elevation using one
approach to manage the level of effort
and costs needed to establish the
FFRMS elevation. Additionally, by
establishing only one FFRMS approach
as the default approach, FEMA believes
the supplementary policy would be
clearer for stakeholders and applicants
to identify which FFRMS approach
FEMA would require for FEMA
Federally Funded Projects. When using
the CISA, the supplementary policy
proposes that FEMA would evaluate if
the CISA methodology is appropriate to
the action being considered. In
accordance with the Revised
Guidelines, the CISA methodology
should consider the criticality of the
action. Flood elevations informed by the
CISA can be adjusted to be higher to
account for the increased consequences
associated with flood damage.57 This
consideration should assist FEMA in
making appropriate decisions about data
sources to use in the CISA analysis to
account for the flood risk to the FEMA
Federally Funded Project.
Four commenters generally stated
FEMA should require use of the CISA
for critical and/or non-critical actions.
Specifically, one commenter stated:
FEMA has an obligation to protect taxpayer
dollars and thus to use climate informed
science when its experts determine the data
is adequate to accurately calculate the
FFRMS flood level and floodplain.
Another commenter stated:
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
Failure to evaluate sea level rise over the
next several decades would be an egregious
oversight when deciding what to build,
where to build, and how to build in coastal
environments.
Executive Order 13690 and the
FFRMS do not prescribe a particular
approach regardless of the individual
circumstance. Instead, they
intentionally provide for flexibility in
application to allow Federal agencies to
develop an implementation approach
that meets the needs and mission of the
particular agency. FEMA had to take
into account many considerations when
making its determination, such as: (1)
Consistency: The need to create an
approach which would allow
57 Revised
Guidelines at 55.
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stakeholders and applicants to
consistently determine which standard
FEMA would apply to FEMA Federally
Funded Projects; (2) disaster
considerations: the ability to implement
the approaches in both a non-disaster
and post-disaster environment. In a
post-disaster environment, FEMA needs
to be able to make decisions quickly to
assist communities in their recovery.
Other considerations included cost as
well as resilience. FEMA balanced
consideration of the preference in the
FFRMS for the CISA against these
implementation considerations when
making the decision to propose optional
use of the CISA. FEMA is not proposing
to require the CISA for non-critical
projects; however, as the FFRMS is
reevaluated annually and updated in 5
years as required by Executive Order
13690, this may change.
Four commenters stated that FEMA
should comply with State, Tribal,
territorial, or local government flood
risk standards, when those standards are
more restrictive than the FFRMS. One
comment stated:
Any critical or non-critical FEMA actions
or FEMA-funded projects should thus
comply with all applicable [S]tate and local
floodplain protection standards.
FEMA has and will continue to
comply with more restrictive local
floodplain management standards.
FEMA is not proposing to amend
§ 9.11(d)(6), which prohibits FEMA
from taking an action if it is inconsistent
with any more restrictive Federal, State,
local, Tribal, and territorial, floodplain
management standards.
One comment received from an
environmental action organization
stated that:
The threshold for what constitutes
substantial improvement/damage should be a
maximum of 50%. A cumulative approach to
calculate substantial improvement/damage
over projects’ lifetimes should be utilized.
FEMA is not proposing to amend the
definition of substantial improvement in
§ 9.4. Substantial improvement is
defined as any repair, reconstruction or
other improvement of a structure or
facility, which has been damaged in
excess of, or the cost of which equals or
exceeds, 50 percent of the market value
of the structure or replacement cost of
the facility. FEMA is not proposing to
adopt a cumulative approach to
calculate substantial improvement
because FEMA does not track
improvements made by applicants,
without FEMA funding, to their own
public facilities. If a local community
has adopted a cumulative approach to
calculating substantial improvement or
substantial damage, FEMA will comply
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57421
with the more restrictive local standard
in accordance with § 9.11(d)(6).
Another commenter addressed use of
the emergency action exception of the
FFRMS:
While we support the provision in EO
13690 that exempts emergency action from
the Federal Flood Risk Management
Standard, we urge the agency to narrowly
define what constitutes an emergency action
[. . .] [P]ermanent work under the PA
Program (PA) [. . .] should not be classified
as emergency work for the purposes of
exemption.
FEMA is not proposing to exempt
permanent work (Categories C–G)
funded by the Public Assistance
program under the emergency action
exception of the FFRMS.
Two commenters encouraged FEMA
to address how structural flood risk
management systems will affect the
FFRMS floodplain. One commenter
stated:
Structural flood risk management systems
are intended to reduce flood risk—not
eliminate flood risk. As such, the agency
should evaluate flood risks if building behind
such structures, including the risk of flooding
should the structure fail or be breached.
FEMA will consider the factors
described in section 1.B.6 of the Revised
Guidelines, Structural Flood Risk
Management Systems, when
considering whether an action which is
landward of a structural flood risk
management system is in the FFRMS
floodplain. Per the direction in the
Revised Guidelines, flood control
structures’ status on effective FIRMs
will not be the sole resource used to
determine if a project is within the
FFRMS floodplain. FEMA
determinations of accreditation status,
Zone AR,58 and Zone A99 59 may not
convey the full hazard to projects
landward of a flood control structure.60
Additional information, as fully listed
in the Revised Guidelines, would need
to be gathered to inform the
determination of if the project is within
the FFRMS floodplain.
One commenter suggested FEMA
should adopt a comprehensive
definition of resilience, stating:
58 Zone AR is defined as the area of special flood
hazard that results from the decertification of a
previously accredited flood protection system that
is determined to be in the process of being restored
to provide base flood protection. Mandatory flood
insurance purchase requirements and floodplain
management standards apply. See 44 CFR
64.3(a)(1).
59 Zone A99 is defined as the area of special flood
hazard where enough progress has been made on
a protective system, such as dikes, dams, and
levees, to consider it complete for insurance rating
purposes. See 44 CFR 64.3(a)(1).
60 See Revised Guidelines at 58.
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The more comprehensive definition laid
out in [the Water Resources, Reform and
Development Act of 2014] provides
guidelines that FEMA can incorporate into its
guidance [and][. . .] gives more detail and
guidance to regulators and the regulated
community, thereby increasing certainty.
FEMA is not proposing to define
resilience in Part 9. There is no
universal definition of resilience, nor is
one associated with FEMA’s
implementation of Executive Order
13690. Section 9.11 requires FEMA to
minimize potential harm to the
investment at risk from flooding. With
the exception of specific minimization
standards in § 9.11(d), FEMA does not
specify the techniques which must be
used to achieve minimization of harm
and improve the resilience of actions
within the floodplain.
The same commenter also supported
the inclusion of structures and facilities
in the Revised Guidelines, stating:
FEMA has expanded the scope of the
guidelines by including their application to
[F]ederal ‘‘facilities,’’ in addition to
structures [. . .] By expanding the scope of
the guidelines to include roads and bridges,
FEMA has made an important step toward
establishing more resilient and disasterresistant communities located within
[F]ederal floodplains.
However, FEMA disagrees with the
comment that FEMA has expanded the
scope of the guidelines. Executive Order
11988 applies to Federal actions,
meaning (a) acquiring, managing and
disposing of Federal lands and facilities;
(b) providing federally undertaken,
financed or assisted construction and
improvements; and (c) conducting
Federal activities and programs affecting
land use, including, but not limited to,
water and related land resources,
planning, regulating and licensing
activities. The definition of action
encompasses providing federally
assisted construction to both structures
and facilities.
Finally, one commenter suggested
FEMA should incorporate the FFRMS
into agency regulations and procedures
within 18 months, requesting:
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[p]lease identify which regulations, and
guidance, documents will require
amendment.
FEMA has identified the regulations
which will require amendment to
implement Executive Order 13690 and
the FFRMS in this Notice of Proposed
Rulemaking.
VI. FFRMS FY 2016 Appropriations
Language
Section 750 of Division E of the
Consolidated Appropriations Act, 2016
(Act) (Pub. L. 114–113, 129 Stat. 2242)
provides that none of the funds made
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available under that Act or any other
Act could be used to (1) implement,
administer, carry out, modify, revise or
enforce Executive Order 13690 other
than for (a) acquiring, managing, or
disposing of Federal lands or facilities;
(b) providing federally undertaken,
financed, or assisted construction or
improvements; or (c) conducting
Federal activities or programs affecting
land use, including water and related
land resources planning, regulating, and
licensing activities; or (2) implement
Executive Order 13690 in a manner that
modifies the non-grant components of
the National Flood Insurance Program.
FEMA does not interpret this
prohibition on the use of appropriated
funds to have any effect on this
rulemaking or its policy development.
Paragraph 750(a)(1) effectively allows
for action to be taken to implement
Executive Order 13690 as long as it is
within the original scope of
responsibilities outlined in Section 1 of
Executive Order 11988. Subsection
(a)(2) prohibits FEMA from
implementing Executive Order 13690 in
a way that modifies the non-grant
components of the NFIP. Neither this
rulemaking nor FEMA’s policy
development goes beyond the scope of
Section 1 of Executive Order 11988 or
modifies the non-grant components of
the NFIP. Although FEMA has always
applied the 8-step decision-making
process to program-wide NFIP actions,
such actions do not qualify as FEMA
Federally Funded Projects under this
rule. Therefore, the prohibition on the
use of appropriated funds does not
apply to this Notice of Proposed
Rulemaking.
VII. Regulatory Analyses
A. Executive Order 12866, Regulatory
Planning and Review & Executive Order
13563, Improving Regulation and
Regulatory Review
Executive Orders 13563 and 12866
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has been designated a ‘‘significant
regulatory action’’ although not
economically significant, under section
3(f) of Executive Order 12866.
Accordingly, the rule has been reviewed
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by the Office of Management and
Budget.
As noted, FEMA is proposing to
amend 44 CFR part 9, ‘‘Floodplain
Management and Protection of
Wetlands’’ and issue a supplementary
policy to implement the Executive
Order 13690 and the FFRMS.
The FFRMS is a flexible framework to
increase resilience against flooding and
to help preserve the natural values of
floodplains. FEMA is proposing to
incorporate the FFRMS into its existing
processes, to ensure that the floodplain
for FEMA Federally Funded Projects is
expanded from the current base flood
level to a higher vertical elevation and
corresponding horizontal floodplain and
that, where possible, natural systems,
ecosystem processes, and nature-based
approaches would be used when
developing alternatives to locating
Federal actions in the floodplain.
FEMA estimates that for the 10-year
period after the rule goes into effect, the
benefits would justify the costs.
Flooding is the most common type of
natural disaster in the United States,
and floods are expected to be more
frequent and more severe over the next
century due to the projected effects of
climate change.61 The ocean has
warmed, polar ice has melted, and
porous landmasses have subsided.62
Global sea level has risen by about 8
inches since reliable record keeping
began in 1880 and is projected to rise
another 1 to 4 feet by 2100.63 Floods are
costly natural disasters; between 1980
and 2013, the United States suffered
more than $260 billion in flood-related
damages.64 This proposed rule would
help protect Federal investments from
future floods, and would help minimize
harm in floodplains, by changing how
FEMA defines the floodplain for FEMAfunded new construction and
substantial improvement (i.e.,
‘‘Federally Funded Projects’’). The
expected costs of this proposed rule are
primarily due to increased elevation or
floodproofing requirements of structures
in the FFRMS floodplain, with the
majority of these costs expected to be
incurred by FEMA itself through several
61 Walsh, J., D. Wuebbles, K. Hayhoe, J. Kossin,
K. Kunkel, G. Stephens, P. Thorne, R. Vose, M.
Wehner, J. Willis, D. Anderson, S. Doney, R. Feely,
P. Hennon, V. Kharin, T. Knutson, F. Landerer, T.
Lenton, J. Kennedy, and R. Somerville, 2014: Ch. 2:
Our Changing Climate. ‘‘Climate Change Impacts in
the United States: The Third National Climate
Assessment’’, J. M. Melillo, Terese (T.C.) Richmond,
and G. W. Yohe, Eds., U.S. Global Change Research
Program, 19–67. Doi.10.7930/J0KW5CXT. Page 20.
62 Ibid [page 21].
63 Ibid [page 21].
64 NOAA, National Weather Service. ‘‘Hydrologic
Information Center—Flood Loss Data’’. https://
www.nws.noaa.gov/hic/.
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$1,498,569
$23,637
$173,215
$15,156
$178,652
Administrative Requirement of Rule
57423
from the NFIP. Table 1 and Table 2
show the costs and benefits by program,
that FEMA has available, annualized for
the first 10 years. Most of the estimated
costs come from PA Category C, which
includes replacements of bridges.
22AUP4
Not estimated
Damage Avoidance
Potential Lives Saved
Increased Public Health and Safety
Decreased Cleanup Time
Protection of Critical Facilities
Reduction of Personal and Community Impacts
BILLING CODE 9111–66–P
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EP22AU16.014</GPH>
*Costs for roads not estimated
$2,593,108
3% Discount Rate
7% Discount Rate
Present Value Annualized
Present Value
Annualized
$2,027
$238
$1,669
$238
$14,417
$1,690
$11,871
$1,690
$48,157,391
$5,645,515
$39,651,737
$5,645,515
Not estimated
$2,211,974
$259,311
$1,821,290
$259,311
Not estimated
Not estimated
$1,278,309
$149,857
$1,052,532
$149,857
$20,163
$2,364
$16,602
$2,364
$151,286
$17,735
$128,615
$18,312
$13,112
$1,537
$10,972
$1,562
$170,923
$20,037
$161,503
$22,994
The cost components of this proposed
rule relate to grants under FEMA’s IA,
PA, HMA, and GPD programs, as well
as FEMA facilities and the Integrated
Public Alert Warning System (IPAWS).
To estimate the cost of the proposed
elevation requirements FEMA uses data
PO 00000
2
Undiscounted
$2,376
$16,901
$56,455,153
Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Proposed Rules
20:43 Aug 19, 2016
Cost
IAMHU
IAPHC
P A Category C
P A Category D
P A Category E
P A Category F
P A Category G
HMA Elevation
HMA Flood~roofing
FEMA Training
Flood~lain Determination
Implementation Costs
Benefits
IAMHU
IAPHC
P A Category C
P A Category D
P A Category E
P A Category F
P A Category G
HMA Elevation
HMA Floodproofing
FEMA Training
Floodplain Determination
Implementation Costs
grant programs, which will be either
passed through to taxpayers or result in
lower levels of Government services.
FEMA grant recipients would bear
approximately 25 percent of the project
costs for those grant programs that have
a cost-share requirement.
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22AUP4
prohibit the floodproofing of residential
structures. In these cases, elevation is
the only option. FEMA calculated the
cost of elevating structures under PHC
E:\FR\FM\22AUP4.SGM
Manufactured Housing Units (MHUs)
would be affected by the proposed rule.
Although floodproofing is a valid option
in some instances, FEMA regulations
PO 00000
Cost
IAMHU
IAPHC
P A Category C
P A Category D
P A Category E
P A Category F
P A Category G
HMA Elevation
HMA Flood~roofing
FEMA Training
Flood~lain Determination
Implementation Costs
Benefits
IAMHU
IAPHC
P A Category C
P A Category D
P A Category E
P A Category F
P A Category G
HMA Elevation
HMA Floodproofing
FEMA Training
Floodplain Determination
Implementation Costs
5
*Costs for roads not estimated
Undiscounted
$33,833
$240,712
$338,730,847
$34,371,967
$20,648,203
$32,562
$173,215
$15,156
$178,652
3% Discount Rate
Present Value Annualized
$28,861
$3,383
$205,332
$24,071
$288,944,283 $33,873,085
Not estimated
$29,319,985
$3,437,197
Not estimated
Not estimated
$17,613,336
$2,064,820
$277,761
$32,562
$151,286
$17,735
$13,112
$1,537
$170,923
$20,037
7% Discount Rate
Present Value
Annualized
$23,763
$3,383
$169,066
$24,071
$237,910,372
$33,873,085
$24,141,432
$3,437,197
$14,502,434
$228,702
$128,615
$10,972
$161,503
$2,064,820
$32,562
$18,312
$1,562
$22,994
Not estimated
Damage A voidance
Potential Lives Saved
Increased Public Health and Safety
Decreased Cleanup Time
Protection of Critical Facilities
Reduction of Personal and Community Impacts
Administrative Requirement of Rule
Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Proposed Rules
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BILLING CODE 9111–66–P
IA Projects
20:43 Aug 19, 2016
IA Permanent Housing Construction
(PHC) projects and sales of
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Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Proposed Rules
structures by adding the cost of
elevating projects between 1 foot and 3
feet above the BFE, depending on
location and type of project. FEMA
subtracted certain costs that it
determined to be part of the baseline.
Specifically, numerous States and
localities have existing freeboard
requirements that would result in
elevation costs and benefits regardless
of this proposed rule, so costs and
benefits for these areas were reduced
based on existing requirements. The
total PHC cost is estimated to range
between $1,690 and $24,071 per year for
FEMA (PHCs are funded fully by
FEMA). FEMA estimates that an average
of 2.22 PHCs per year would be subject
to FFRMS requirements. IA also
includes the sale of MHUs. The total
MHU cost is estimated to range between
$238 and $3,383 per year. FEMA
estimates that an average of 4.88 MHUs
per year would be subject to FFRMS
requirements. An MHU elevation must
be paid fully by an IA grant recipient
who ultimately purchases the MHU.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
PA Projects
PA Categories C, D, E, F, and G
projects would be affected by the
proposed rule, but FEMA is only able to
provide partial estimates of costs
associated with Categories C (Roads and
Bridges) and E (Public Buildings).
FEMA cannot estimate the costs of
improving flood resiliency of roads
because of the highly project-specific
nature of road projects, and numerous
options for making roads resilient.
Damage to roads during flood events can
be caused by erosion and scour,
inundation by floodwater, or debris
blockage, and can be worsened by issues
such as misaligned culverts, insufficient
culvert capacity, embankment erosion,
road and shoulder damage, and
obstructions that reduce culvert
capacity. A sampling of mitigation
actions that can improve the resiliency
of a road to flooding include installing
low water crossings, increasing culvert
size, installing a relief culvert, adding
rip rap to a road embankment to provide
slope protection, installing structures
such as aprons and baffle structures that
dissipate the energy of floodwater,
realigning culverts, and installing road
shoulder subsurface drains.65
FEMA considers all PA Category C
grants used to replace publicly-owned
bridges to be critical actions for the
purposes of this analysis. There are a
variety of techniques that can be used to
65 See FEMA, ‘‘FEMA B–797 Hazard Mitigation
Field Book: Roadways’’, (2010), available at https://
www.fema.gov/media-library/assets/documents/
19299.
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floodproof a bridge, but the specific
techniques depends on the specific
bridge, location, and circumstances.
FEMA estimates that the costs of this
proposed rule for Category C bridge
grants would range from a low of
$5,645,515 per year to a high of
$33,873,085 per year. FEMA estimates
that an average of 7.10 PA Category C
bridge projects per year would be
subject to FFRMS requirements. The
total cost to the PA program is estimated
to be between $5,904,826 and
$37,310,281 per year. With the 75
percent cost share, the cost to FEMA
would be between $4,428,620 and
$27,982,711 per year, while the cost to
grant recipients would be between
$1,476,207 and $9,327,570 per year.
FEMA used data from PA grant
approvals from 2006–2015 and used a
multi-step process to estimate the range
of costs for elevating Category E
structures. FEMA estimates that the
elevation cost for Category E non-critical
actions would be a low of $219,301 per
year and a high of $3,123,171 per year.
FEMA estimates that an average of 19.19
PA Category E projects per year would
be subject to FFRMS requirements. In
addition, FEMA estimates that the total
cost for Category E critical actions
would range from a low of $40,009 per
year to a high of $314,026 per year.
HMA Projects
FEMA used data from HMA grant
approvals for elevation and
floodproofing of structures from 2006–
2015 and a multi-step process to
estimate the range of costs for elevating
or floodproofing these structures. FEMA
estimates that the total cost for HMA
non-critical actions for elevation
projects would range from a low of
$138,999 per year to a high of
$1,979,591 per year. In addition, FEMA
estimates that the total cost for HMA
critical actions for elevation projects
would range from a low of $10,858 per
year to a high of $85,229 per year.
FEMA estimates that an average of 73.69
HMA elevation projects per year would
be subject to FFRMS requirements. The
total cost for HMA non-critical actions
for floodproofing projects would be a
low of $2,188 per year and a high of
$31,165 per year. In addition, FEMA
estimates that the total cost for HMA
critical actions for floodproofing
projects would be a low of $176 per year
and a high of $1,397 per year. FEMA
estimates that an average of 4.70 HMA
floodproofing projects per year would
be subject to FFRMS requirements.
FEMA estimates the total cost of this
rule for the HMA program to be between
$152,221 and $2,097,382 per year. With
the 75 percent cost share, the cost to
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57425
FEMA would be between $114,165 and
$1,573,037 per year, while the cost to
grant recipients would be between
$38,055 and $524,346 per year.
HMA also funds various other types
of projects, such as minor flood control,
property acquisition, generators, and
mitigation reconstruction, but FEMA is
unable to estimate the potential costs
associated with these projects because
the manner in which each applicant
meets the resiliency standards will be
fact-specific and dependent upon the
nature of the design and purpose of the
project. Additional minor mitigation
measures would have to be taken for
these projects, if located in the
expanded FFRMS floodplain. FEMA
requests public comments.
The costs of the proposed rule would
be from IA, PA, and HMA programs, as
well as administrative costs. FEMA
expects minimal costs associated with
GPD and IPAWS because these
programs do not fund new construction
or substantial improvement projects.
These projects are also by nature
typically resilient from flooding. FEMA
facilities may also be subject to
additional requirements due to the
implementation of the proposed rule.
FEMA estimates that the total
additional grants costs as a result of the
proposed rule would be between
$906,696 and $7.8 million per year for
FEMA and between $301,906 and $2.6
million per year for grant recipients due
to the increased elevation or
floodproofing requirements of FEMA
Federally Funded Projects.
In addition, FEMA expects to incur
some administrative costs as a result of
this proposed rule. FEMA estimates
initial training costs of around $100,000
the first two years after the rule is
implemented, and administrative and
training costs of around $16,000 per
year thereafter. FEMA estimates that the
total annual cost of this rule after year
two would be between $6.1 million and
$39.5 million.
FEMA estimates the quantified cost of
this proposed rule over the next 10
years would range between $60.1
million and $394.7 million. The present
value (PV) of these estimated costs using
a 7 percent discount rate would range
between $42.9 million and $277.3
million. The PV using a 3 percent
discount rate would range between
$52.0 million and $336.7 million. These
costs would be split between FEMA (75
percent) and recipients (25 percent) of
FEMA grants in the floodplain. The low
estimates of the 10-year costs of this
rule, discounted at 3 percent and 7
percent are presented in Table 3. The
high estimates of the 10-year costs of
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Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Proposed Rules
this rule, discounted at 3 percent and 7
percent are presented in Table 4.
TABLE 3—10-YEAR COST TOTALS USING 3 PERCENT AND 7 PERCENT DISCOUNT RATES (LOW ESTIMATE, 2015$)
FEMA Admin.
costs
Year
FEMA Grant
costs
Recipient cost
share
Undiscounted
annual costs
Annual costs
discounted at
3%
Annual costs
discounted at
7%
1 ...............................................................
2 ...............................................................
3 ...............................................................
4 ...............................................................
5 ...............................................................
6 ...............................................................
7 ...............................................................
8 ...............................................................
9 ...............................................................
10 .............................................................
$135,291
105,336
16,010
16,010
16,010
16,010
16,010
16,010
16,010
16,010
$4,544,475
4,544,475
4,544,475
4,544,475
4,544,475
4,544,475
4,544,475
4,544,475
4,544,475
4,544,475
$1,514,499
1,514,499
1,514,499
1,514,499
1,514,499
1,514,499
1,514,499
1,514,499
1,514,499
1,514,499
$6,194,265
6,164,310
6,074,984
6,074,984
6,074,984
6,074,984
6,074,984
6,074,984
6,074,984
6,074,984
$6,013,850
5,810,454
5,559,471
5,397,545
5,240,335
5,087,704
4,939,518
4,795,649
4,655,970
4,520,359
$5,789,033
5,384,147
4,958,997
4,634,576
4,331,380
4,048,019
3,783,195
3,535,696
3,304,389
3,088,214
Total ..................................................
368,707
45,444,751
15,144,992
60,958,451
52,020,854
42,857,646
Annualized ........................................
........................
........................
........................
........................
6,098,431
6,101,965
TABLE 4—10-YEAR COST TOTALS USING 3 PERCENT AND 7 PERCENT DISCOUNT RATES (HIGH ESTIMATE, 2015$)
FEMA Admin.
costs
Year
FEMA Grant
costs
Recipient cost
share
Undiscounted
annual costs
Annual costs
discounted at
3%
Annual costs
discounted at
7%
1 ...............................................................
2 ...............................................................
3 ...............................................................
4 ...............................................................
5 ...............................................................
6 ...............................................................
7 ...............................................................
8 ...............................................................
9 ...............................................................
10 .............................................................
$135,291
105,336
16,010
16,010
16,010
16,010
16,010
16,010
16,010
16,010
$29,579,819
29,579,819
29,579,819
29,579,819
29,579,819
29,579,819
29,579,819
29,579,819
29,579,819
29,579,819
$9,855,299
9,855,299
9,855,299
9,855,299
9,855,299
9,855,299
9,855,299
9,855,299
9,855,299
9,855,299
$39,570,409
39,540,454
39,451,128
39,451,128
39,451,128
39,451,128
39,451,128
39,451,128
39,451,128
39,451,128
$38,417,873
37,270,670
36,103,371
35,051,817
34,030,890
33,039,699
32,077,378
31,143,085
30,236,005
29,355,345
$36,981,691
34,536,164
32,203,872
30,097,077
28,128,109
26,287,953
24,568,180
22,960,916
21,458,800
20,054,953
Total ..................................................
368,707
295,798,190
98,552,993
394,719,890
336,726,132
277,277,715
Annualized ........................................
........................
........................
........................
........................
39,474,575
39,478,109
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
Benefits
FEMA anticipates that the benefits of
the proposed rule would justify the
costs. FEMA has provided qualitative
benefits, including the reduction in
damage to properties and contents from
future floods, potential lives saved,
public health and safety benefits,
reduced recovery time from floods, and
increased community resilience to
flooding.
FEMA believes this proposed rule
would result in savings in time and
money from a reduced recovery period
after a flood and increased safety of
individuals. Generally, if properties are
protected, there would be less damage,
resulting in less clean-up time. In
addition, higher elevations help to
protect people, leading to increased
safety. FEMA is unable to quantify these
benefits, but improving the resiliency of
bridges has significant qualitative
benefits, including: Protecting
evacuation and escape routes; limiting
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blockages of floodwaters passing under
the bridge that may lead to more severe
flooding upstream; and, avoiding the
cost of replacing the bridge again if it is
damaged during a subsequent flood.
Any estimates of these savings would be
dependent on the specific
circumstances and FEMA is not able to
provide a numeric value on these
savings.
A 2008 FEMA report analyzes
potential savings from damage
avoidance associated with including
freeboard in the construction of new
residential structures in coastal areas at
various freeboard levels.66 According to
this report, in some contexts a dollar
spent on elevation activities could result
in a $1.30 to $8.92 return on investment,
due to damage avoidance only. This
report shows that the benefits of
66 FEMA, ‘‘2008 Supplement to the 2006
Evaluation of the National Flood Insurance
Program’s Building Standards’’. https://
www.fema.gov/media-library-data/20130726-191125045-9876/2008_freeboard_report.pdf.
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incorporating freeboard exceed the costs
for certain projects located in coastal
flood zones. However, the report’s scope
is limited to new construction of houses
in coastal areas. Due to the relatively
narrow scope of the study, FEMA has
not used the results of this report to
estimate monetized benefits of freeboard
to the nationwide projects that would be
affected by this rule. FEMA requests
information and studies from the public
that examine the benefits of freeboard
for a more diverse set of projects, such
as non-residential structures, retrofitting
substantial improvement projects,
projects in non-coastal floodplains. If
FEMA receives additional information
that informs an estimate of the
monetized benefits of freeboard to a
broad range of structures, we may
provide a monetized estimate of benefits
in the final rule.
For more in-depth review of these
costs and benefits, please see the
Regulatory Evaluation, which can be
found in the docket for this rulemaking.
E:\FR\FM\22AUP4.SGM
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Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Proposed Rules
B. Regulatory Flexibility Act
This section considers the effects that
this proposed rule would have on small
entities as required by the Regulatory
Flexibility Act (RFA, 5. U.S.C. 601 et
seq., Pub. L. 96–354) as amended by the
Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA). The
RFA generally requires an agency to
prepare a regulatory flexibility analysis
of any rule subject to notice and
comment rulemaking requirements
under the Administrative Procedure Act
or any other statute unless the agency
certifies that the rule will not have a
‘‘significant economic impact on a
substantial number of small entities.’’ 5
U.S.C. 605(b). Small entities include
small businesses, small organizations,
and small governmental jurisdictions.
FEMA prepared an Initial Regulatory
Flexibility Analysis (IRFA) for this
proposed rule. This analysis is detailed
in this section and represents FEMA’s
assessment of the impacts of this
proposed rule on small entities. Section
1 outlines FEMA’s initial assessment of
small entities that would be affected by
the proposed regulations. Section 2
presents FEMA’s analysis and
summarizes the steps taken by FEMA to
comply with the RFA.
1. Initial Assessment of Small Entities
Affected by the Proposed Regulations
The proposed rule would affect FEMA
grant recipients that receive Federal
funds for new construction, substantial
improvement to structures, or to address
substantial damage to structures and
facilities. Many of these grants are
available to local governmental
jurisdictions and non-profit
organizations. FEMA does not provide
grants to for-profit businesses.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
2. Analysis and Steps Taken To Comply
With the Regulatory Flexibility Act
The following IRFA addresses the
following requirements of the RFA:
(1) A description of the reasons why
action by the agency is being
considered;
(2) a succinct statement of the
objectives of, and legal basis for, the
proposed rule;
(3) a description of and, where
feasible, an estimate of the number of
small entities to which the proposed
rule will apply;
(4) a description of the projected
reporting, recordkeeping and other
compliance requirements of the
proposed rule, including an estimate of
the classes of small entities which will
be subject to the requirement and the
type of professional skills necessary for
preparation of the report or record;
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(5) an identification, to the extent
practicable, of all relevant Federal rules
which may duplicate, overlap or
conflict with the proposed rule;
(6) a description of any significant
alternatives to the proposed rule which
accomplish the stated objectives of
applicable statutes and which minimize
any significant economic impact of the
proposed rule on small entities.
Consistent with the stated objectives of
applicable statutes, the analysis shall
discuss significant alternatives such as:
The establishment of differing
compliance or reporting requirements or
timetables that take into account the
resources available to small entities; the
clarification, consolidation, or
simplification of compliance and
reporting requirements under the rule
for such small entities; the use of
performance rather than design
standards; and an exemption from
coverage of the rule, or any part thereof,
for such small entities.
2.1 Description of the Reasons Why
Action by the Agency Is Being
Considered
On January 30, 2015, the President
issued Executive Order 13690, which
amended Executive Order 11988 and
established a new flood risk
management standard called the
FFRMS. Executive Order 13690 directs
agencies to issue or amend their existing
regulations and procedures to comply
with the Order; therefore, FEMA is
updating its regulations at 44 CFR part
9 and issuing an FFRMS policy.
The FFRMS is intended to reduce
flood risk by expanding the floodplain
with respect to Federally Funded
Projects, revising the definition of the
floodplain, adding a definition of
‘‘critical action,’’ and requiring agencies
to use natural systems, ecosystem
processes, and nature-based approaches
in the development of alternatives for
Federal actions in the floodplain.
2.2 Succinct Statement of the
Objectives of, and Legal Basis for, the
Proposed Rule
FEMA is responsible for publishing
information on floodplain areas and
identifying special hazards. FEMA is
also responsible for several grant
programs that use Federal funds to
assist in construction or reconstruction
following a disaster, as well as grants for
hazard mitigation and recovery. These
grants can potentially be used for
locations within a floodplain.
To meet the requirements of section
2(d) of Executive Order 11988, requiring
agencies to issue or amend existing
regulations and procedures to
implement the Executive Order, FEMA
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57427
promulgated regulations which are
located at 44 CFR part 9. FEMA is
revising 44 CFR part 9 to reflect the
changes to Executive Order 11988 made
via Executive Order 13690.
The objective of the proposed rule is
to revise the regulations for locating
FEMA Federally Funded Projects in an
expanded floodplain to reduce the risk
of flooding to those projects. In
addition, for actions that are determined
to be ‘‘critical actions’’ as defined by the
proposed rule, the proposed rule would
impose more stringent elevation and
resiliency requirements. This is
necessary to protect actions where even
a slight chance of flooding is too great.
The rule would also require the use of
nature-based approaches, where
possible, when considering alternatives
for development in the floodplain.
Nature-based approaches can include
both natural and engineered features.
The objective of requiring the use,
where possible, of nature-based
approaches is to help to restore the
floodplain’s natural processes. The use
of nature-based approaches may result
in reduced flood risks. In addition,
nature-based approaches have less
potential to degrade the natural and
beneficial values of floodplains. Some
examples of nature-based approaches
could include restoring wetland
functions along a coastal or riverine
system to create a living shoreline or
using green infrastructure measures to
reduce runoff.
2.3 Description Of and Where
Feasible, an Estimate of the Number of
Small Entities To Which the Proposed
Rule Will Apply
This rule would affect certain
recipients of FEMA grants. These would
primarily be PA and HMA grant
recipients, which include States, Tribal
governments, local governments and
certain non-profit organizations. The PA
grant recipients would include
Categories C, D, E, F, and G projects
however, FEMA is only able to provide
reasonable estimates of the number of
entities and costs associated with
Categories C (roads and bridges) and E
(public buildings). IA and GPD are not
discussed in this analysis. IA provides
grants directly to individuals and
individuals are not small entities as
defined in 5 U.S.C. 601(6). FEMA finds
that this rule would likely have no effect
on GPD grants because GPD projects are
not typically substantial improvement
or new construction.
PA provides grants to States, Tribal
governments, local governments and
certain non-profit organizations for
rebuilding, replacement, or repair of
public and non-profit facilities damaged
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Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Proposed Rules
by disasters. Where such rebuilding,
replacement or repair involves new
construction, substantial improvement,
and repair of substantial damage of
structures in the expanded FFRMS
floodplain, PA recipients would incur
additional costs to comply with
proposed elevation and floodproofing
requirements. Out of a population 67 of
20,341 individual PA Category E grant
recipients, a random sample of 96
recipients 68 shows that 79 projects
(approximately 82 percent) would meet
the definition of small entities under the
Regulatory Flexibility Act. This was
made up of 45 small governments, 33
private non-profits, and one Tribal
government. According to historical
data, there have been an average of 44
new construction, substantial
improvement, or repair of substantial
damage PA Category E projects annually
over the past 10 years with
approximately 19 of these located in the
1 percent annual chance floodplain or
expanded FFRMS floodplain. Therefore,
FEMA estimates that 16 small entities
would be affected each year through PA
Category E projects (19 × 82 percent). As
discussed earlier, FEMA did not include
Categories D, F, and G projects therefore
the total number of affected entities
could be higher.
HMA provides mitigation grants to
States, Tribal governments, local
governments and certain non-profit
organizations to, among other things,
relocate property outside of the
floodplain, or to elevate or floodproof
structures to the flood level. As noted in
the Regulatory Evaluation, HMA has
funded an average of 67 projects per
year from 2006–2015. Unlike PA grants,
the majority of HMA grants are for
projects located in the floodplain, so for
this analysis FEMA assumes that all
HMA projects are in the floodplain.
FEMA has estimated that the freeboard
requirements would expand the
floodplain by 16.8 percent based on
studies conducted in 24 U.S. counties
with varied topography. With the 16.8
percent expansion of the floodplain,
HMA would have an additional 11
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67 PA
Category C grant recipients (Roads &
Bridges) were not included in this population as the
dataset that FEMA used lists the project grantees
(States and Tribes), and not subgrantees (local
governments and private non-profits). Therefore
FEMA is not able to estimate the number of small
entities affected by Category C grants. Over the past
10 years, PA has funded the replacement of 71
bridges. FEMA requests data and/or comments to
determine how many bridge replacement project
grants go to small entities.
68 The population of PA Category E projects
includes all ‘‘Public Buildings’’ grants from 2006–
2015. Because of the large population, a random
sample of 96 projects was drawn, using a
confidence level of 95 percent and a 10 percent
confidence interval.
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projects per year (67 × 16.8 percent =
11) for a total of 78 projects located in
the 1 percent annual chance floodplain
or expanded FFRMS floodplain.
Assuming 82 percent 69 of HMA grant
recipients are small entities, the
proposed rule would affect
approximately 64 small entities per year
(78 projects × 82 percent).
2.4 Description of the Projected
Reporting, Recordkeeping, and Other
Compliance Requirements of the
Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will
Be Subject to the Requirement and the
Type of Professional Skills Necessary
for Preparation of the Report or Record
FEMA will not be changing the
application process for its grant
programs. The majority of the costs of
this proposed rule would fall on FEMA.
Small entities, like all entities, would be
subject to additional costs associated
with floodproofing, elevation of
structures, and flood resiliency
measures required by the proposed rule.
For the purposes of this analysis, and
based on historical data, FEMA presents
the costs such that most projects would
choose to elevate because of the
additional level of safety elevation
provides over floodproofing and a
historically higher number of projects
that involved elevation as opposed to
floodproofing.70 FEMA uses an NFIP
report to estimate the cost of the
proposed elevation requirements.71 The
report provides estimates for the cost of
elevating structures as a percentage of
total construction cost.
According to HMA data, the average
cost of floodproofing is 50 percent of the
cost of freeboard elevation.
Floodproofing involves sealing off areas
below the flood level so that water
cannot enter, or altering the use of these
areas so that flood waters may pass
through without causing serious
damage. Non-residential structures
where elevation is not feasible may be
floodproofed rather than elevated.
Additionally, floodproofing preexisting
69 In FEMA’s dataset, HMA recipients only
included project titles and not the name of the
grantee. This prevented FEMA from determining if
a grant recipient was a small entity. Since PA and
HMA provide funding to similar entities (States,
Tribal governments, local governments and certain
non-profit organizations) for disaster related
activity, FEMA used the percentages of small entity
grant recipients found in PA Category E as a proxy
for HMA small entities.
70 According to historical HMA data, there have
been an average of 63 elevation projects and only
4 floodproofing projects per year.
71 FEMA, ‘‘2008 Supplement to the 2006
Evaluation of the national Flood Insurance
Program’s Building Standards’’ Table 3. https://
www.fema.gov/media-library-data/20130726-191125045-9876/2008_freeboard_report.pdf.
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properties may be less costly than
elevating an existing property. So,
where a project may floodproof rather
than elevate, costs may be lower for
some projects than the costs presented
here. However, for existing properties
that choose to elevate rather than
floodproof, costs may be higher for some
projects than the costs presented here
because the NFIP report cost estimates
are for when freeboard is included in
the design of a structure. FEMA requests
comments on these assumptions.
The Federal cost-share of eligible PA
work is generally 75 percent, so PA
recipients would be required to fund 25
percent of the costs to comply with the
requirements of the proposed rule.72
FEMA estimates that the average annual
cost of the proposed rule for PA
Category E projects would be between
$13,648 and $180,905 73 per project.
Using the Federal cost share, each small
entity would have an average expected
cost between $3,412 ($13,648 × 25
percent cost share) and $45,226
($180,905 × 25 percent).
The cost-sharing arrangement for
HMA is 75 percent Federal and 25
percent recipient, so HMA recipients
would be required to fund 25 percent of
the costs to comply with the
requirements of the proposed rule.
FEMA estimates the average cost of the
proposed rule for HMA projects would
be between $1,952 and $26,890
annually.74 Using the Federal cost share,
each small entities would have an
average cost between $488 ($1,952 ×
0.25) and $6,722 ($26,890 × 0.25).
Reporting and recordkeeping is not
expected to change with the exception
of minor changes to FEMA’s Mitigation
Grant Program/e-Grants system. This is
an automated grant application and
management system that would have
one question changed as a result of this
proposed rule. FEMA would still make
the determination if a project would
take place in an FFRMS floodplain. (See
72 In extraordinary circumstances the Federal
share for PA may be 90 percent when actual Federal
obligations exceed a qualifying threshold. See 44
CFR 206.47.
73 According to the Regulatory Evaluation for this
proposed rule, FEMA estimates the average annual
cost for 19 PA Category E projects is between
$259,311 and $3,437,197. The estimated cost per
project is between $13,648 ($259,311/19) and
$180,905 ($3,437,197/19). For information about
how FEMA arrived at these estimates, please see the
Regulatory Evaluation for this proposed rule located
in the docket.
74 According to the Regulatory Evaluation for this
proposed rule, FEMA estimates the annual cost for
78 HMA projects is between $152,221 and
$2,097,382. The estimated cost per project is
between $1,952 ($152,221/78 projects) and $26,890
($2,097,382/78 projects). For information about how
FEMA arrived at these estimates, please see the
Regulatory Evaluation for this proposed rule located
in the docket.
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the Paperwork Reduction Act section of
this preamble below for information
about the proposed revision to this
collection of information.)
2.5 Identification, to the Extent
Practicable, of Relevant Federal Rules
Which may Duplicate, Overlap, or
Conflict With the Proposed Rule
This rule does not duplicate, overlap,
or conflict with other Federal rules as
the proposed rule only relates for FEMA
Federally Funded Projects. Existing
FEMA rules relating to compliance with
Executive Order 11988, Floodplain
Management are being modified to
comply with Executive Order 13690,
which amends Executive Order 11988.
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2.6 Description of Any Significant
Alternatives to the Proposed Rule
Which Accomplish the Stated
Objectives of Applicable Statutes and
Which Minimize Any Significant
Economic Impact of the Proposed Rule
on Small Entities
The standards proposed in this rule
represent FEMA’s efforts to implement
Executive Order 13690, which
establishes executive branch-wide
policy in this area. Small entities would
have the option to relocate outside of
the floodplain. This may be preferable
in cases where property can be obtained
and new facilities built for less cost than
elevating or floodproofing to the
freeboard level in the floodplain, and
the recipient has the ability to relocate.
Executive Order 13690 allows several
approaches to determine the FFRMS
floodplain, but FEMA is proposing to
adopt the FFRMS–FVA in most cases.
The FFRMS–FVA uses the most easily
attainable data for elevation and
floodproofing standards and is the most
consistent with existing State and local
regulations. As a result, FEMA’s
proposed approach would reduce the
burden on small entities by not
requiring a separate set of Federal
requirements that are more likely to be
different from existing State and local
requirements. Section F of this NPRM,
FEMA’s Implementation of Executive
Order 13690 and FFRMS, describes the
FFRMS approaches allowed by
Executive Order 13690 and FEMA’s
considerations when selecting between
the FFRMS approaches.
FEMA invites all interested parties to
submit data and information regarding
the potential economic impact that
would result from adoption of the
proposals in this proposed rule. FEMA
will consider all comments received in
the public comment process.
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C. Unfunded Mandates Reform Act
Pursuant to Section 201 of the
Unfunded Mandates Reform Act of 1995
(Public Law 104–4, 2 U.S.C. 1531), each
Federal agency shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and Tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law). Section 202 of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1532) further requires that before
promulgating any general notice of
proposed rulemaking that is likely to
result in the promulgation of any rule
that includes any Federal mandate that
may result in expenditure by State,
local, and Tribal governments, in the
aggregate, or by the private sector, of
$100 million or more (adjusted annually
for inflation) in any 1 year, and before
promulgating any final rule for which a
general notice of proposed rulemaking
was published, the agency shall prepare
a written statement detailing the effect
on State, local, and Tribal governments
and the private sector. The proposed
rule would not result in such an
expenditure, and thus preparation of
such a statement is not required.
D. National Environmental Policy Act
(NEPA) of 1969
Section 102 of the National
Environmental Policy Act of 1969
(NEPA), Public Law 91–190, 83 Stat.
852 (Jan. 1, 1970) (42 U.S.C. 4321 et
seq.) requires agencies to consider the
impacts of their actions on the quality
of the human environment. The Council
on Environmental Quality’s procedures
for implementing NEPA, 40 CFR 1500
through 1508, require Federal agencies
to prepare Environmental Impact
Statements (EIS) for major Federal
actions significantly affecting the
quality of the human environment. Each
agency can develop categorical
exclusions to cover actions that have
been demonstrated to not typically
trigger significant impacts to the human
environment individually or
cumulatively. Agencies develop
environmental assessments (EA) to
evaluate those actions that do not fit an
agency’s categorical exclusion and those
actions for which a categorical
exclusion applies but extraordinary
circumstances exist. At the end of the
EA process the agency will determine
whether to make a Finding of No
Significant Impact or whether to initiate
the EIS process.
Rulemaking is a major Federal action
subject to NEPA. Categorical exclusion
A3 included in the list of exclusion
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categories at Department of Homeland
Security Instruction Manual 023–01–
001–01, Revision 01, Implementation of
the National Environmental Policy Act,
Appendix A, issued November 6, 2014,
covers the promulgation of rules,
issuance of rulings or interpretations,
and the development and publication of
policies, orders, directives, notices,
procedures, manuals, and advisory
circulars. The purpose of this proposed
rule is to update the Floodplain
Management and Protection of Wetland
requirements to adopt the approaches
outlined in Executive Order 13690 to
establish the floodplain and associated
flood elevation that must be used in the
decision-making process to be followed
by FEMA in applying Executive Orders
11988 and 13690 to its actions. The
decision-making process requires FEMA
to determine whether a proposed action
is located in a wetland and/or the
floodplain. FEMA is required to take
mitigative measures, if it makes the
determination to carry out an action in
the floodplain. The rule would also add
a requirement to use natural systems,
ecosystem processes, and nature-based
approaches in the development of
alternatives for Federal actions in a
floodplain. The result of applying the
approaches outlined in Executive Order
13690 to establish the floodplain and
associated flood elevation may be
additional structures elevated or
structures elevated to a higher level.
Federal assistance for the
reconstruction, elevation, retrofitting,
upgrading to current codes and
standards, and improvements to preexisting facilities when the immediate
project area has already been disturbed
and when those actions do not alter
basic functions, do not exceed the
capacity of other system components, or
modify intended land use are
categorically excluded under
Department of Homeland Security
Instruction Manual 023–01–001–01,
Revision 01, Implementation of the
National Environmental Policy Act,
Appendix A (N7). New construction
upon or improvement of land where the
proposed use is compatible with
applicable planning and zoning
standards and coastal management
programs, the site is in a developed or
previously-disturbed site, the proposed
use will not substantially increase the
number of motor vehicles in the area,
the site and scale of construction are
consistent with nearby buildings, and
the construction or improvement will
not result in uses that exceed the
existing support infrastructure
capacities are categorically excluded
under Department of Homeland
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Security Instruction Manual 023–01–
001–01, Revision 01, Implementation of
the National Environmental Policy Act,
Appendix A (E2). No extraordinary
circumstances exist that will trigger the
need to develop an EA or EIS. See
Department of Homeland Security
Instruction Manual 023–01–001–01,
Revision 01, Implementation of the
National Environmental Policy Act,
section (V)(B)(2). An EA will not be
prepared because a categorical
exclusion applies to this rulemaking
action and no extraordinary
circumstances exist.
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E. Paperwork Reduction Act (PRA) of
1995
As required by the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13, 109 Stat. 163, (May 22,
1995) (44 U.S.C. 3501 et seq.), FEMA
may not conduct or sponsor, and a
person is not required to respond to, a
collection of information unless the
collection of information displays a
valid control number.
In this proposed rule, FEMA is
seeking a revision to the already existing
collection of information, OMB Control
Number 1660–0072, because FEMA is
proposing to replace question E.1. on
screenshot #10 in order to comply with
the proposed FFRMS requirements.
Currently, 1660–0072’s screenshot #10,
E.1. reads: ‘‘Does a Flood Insurance Rate
Map (FIRM), Flood Hazard Boundary
Map (FHBM), hydrologic study, or some
other source indicate that the project is
located in or will affect a 100-year
floodplain, a 500-year floodplain if a
critical facility, an identified regulatory
floodway, or an area prone to flooding?’’
We are proposing to change it to: ‘‘Does
a Flood Insurance Rate Map (FIRM),
Flood Hazard Boundary Map (FHBM),
hydrologic study, or some other source
indicate that the project is located in or
will affect a floodplain (including a base
floodplain, 500-year floodplain, or
FFRMS floodplain), an identified
regulatory floodway, or an area prone to
flooding?’’ This proposed rule serves as
the 60-day comment period for this
proposed change pursuant to 5 CFR
1320.11. FEMA invites the general
public to comment on the proposed
collection of information.
Collection of Information
Title: Mitigation Grant Program/eGrants.
Type of Information Collection:
Revision of a currently approved
collection.
OMB Number: 1660–0072.
FEMA Forms: FEMA Form 101–0–0–
1, Benefit Cost Determination; FEMA
Form 093–0–0–1, Environmental
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Review; FEMA Form 080–0–0–12,
Project Narrative-Sub-grant Application.
Abstract: The FEMA pre-disaster
mitigation grant programs—FMA and
PDM—both utilize an automated grant
application and management system
known as e-Grants to apply for these
grants. These programs provide funding
to allow for the reduction or elimination
of the risks to lives and property from
hazards. The e-Grants system also
provides the mechanism to provide
quarterly reports of the financial status
of the project and the final closeout
report.
Affected Public: State, local and
Tribal Governments.
Estimated Number of Respondents:
56.
Estimated Number of Responses:
5,264.
Estimated Total Annual Burden
Hours: 43,848.
Estimated Cost: There are no
operation and maintenance, or capital
and start-up costs associated with this
collection of information.
Comments
Comments may be submitted as
indicated in the ADDRESSES caption
above. Comments are solicited to (a)
evaluate whether the proposed data
collection is necessary for the proper
performance of the agency, including
whether the information shall have
practical utility; (b) evaluate the
accuracy of the agency’s estimate of the
burden of the proposed collection of
information, including the validity of
the methodology and assumptions used;
(c) enhance the quality, utility, and
clarity of the information to be
collected; and (d) minimize the burden
of the collection of information on those
who are to respond, including through
the use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
F. Privacy Act
Under the Privacy Act of 1974, 5
U.S.C. 552a, an agency must determine
whether implementation of a proposed
regulation would result in a system of
records. A ‘‘record’’ is any item,
collection, or grouping of information
about an individual that is maintained
by an agency, including, but not limited
to, his/her education, financial
transactions, medical history, and
criminal or employment history and
that contains his/her name, or the
identifying number, symbol, or other
identifying particular assigned to the
individual, such as a finger or voice
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print or a photograph. See 5 U.S.C.
552a(a)(4). A ‘‘system of records’’ is a
group of records under the control of an
agency from which information is
retrieved by the name of the individual
or by some identifying number, symbol,
or other identifying particular assigned
to the individual. An agency cannot
disclose any record, which is contained
in a system of records, except by
following specific procedures.
In accordance with DHS policy,
FEMA has completed a Privacy
Threshold Analysis for this proposed
rule. This proposed rule does not affect
the 1660–0072 OMB Control Number’s
current compliance with the Privacy Act
of 1974, as amended, or the EGovernment Act of 2002. OMB Control
Number 1660–0072 is covered by the
DHS/FEMA/PIA–006—FEMA National
Emergency Management Information
System Mitigation Electronic Grants
Management System Privacy Impact
Assessment (PIA). As a result, no update
to DHS/FEMA/PIA–006 is necessary.
OMB Control Number 1660–0072 is
covered under the System of Records
Notice (SORN) for DHS/FEMA–009
Hazard Mitigation, Disaster Public
Assistance, and Disaster Loan Programs,
79 FR 16015, Mar. 24, 2014. This
proposed rule does not create a new
system of records and no update to this
SORN is necessary.
G. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, ‘‘Consultation
and Coordination With Indian Tribal
Governments,’’ 65 FR 67249, Nov. 9,
2000, applies to agency regulations that
have Tribal implications, that is,
regulations that have substantial direct
effects on one or more Indian Tribes, on
the relationship between the Federal
Government and Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes. Under
this Executive Order, to the extent
practicable and permitted by law, no
agency shall promulgate any regulation
that has Tribal implications, that
imposes substantial direct compliance
costs on Indian Tribal governments, and
that is not required by statute, unless
funds necessary to pay the direct costs
incurred by the Indian Tribal
government or the Tribe in complying
with the regulations are provided by the
Federal Government, or the agency
consults with Tribal officials.
FEMA has reviewed this proposed
rule under Executive Order 13175 and
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has determined that this rule does not
have a substantial direct effect on one or
more Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes.
Part 9 applies to FEMA disaster and
non-disaster assistance programs,
including PA, Individual Assistance,
HMA, and grants processed by GPD.
Pursuant to section 8 of Executive Order
11988, Part 9 does not apply to
assistance provided for emergency work
essential to save lives and protect
property and public health and safety,
performed pursuant to sections 403 and
502 of the Stafford Act, as amended (42
U.S.C. 5170b and 5192).
Indian Tribes have the same
opportunity to participate in FEMA’s
grant programs as other eligible
participants, and participation is
voluntary. The requirements of this rule
do not affect Tribes differently than
other grant recipients. Therefore, FEMA
does not expect this proposed rule to
have a substantial direct effect on one or
more Indian Tribes or impose
substantial direct compliance costs on
Indian Tribal governments, but will
consider any information provided in
comments to inform its analysis of this
issue as part of a final rule.
Notwithstanding FEMA’s conclusion
that this proposed rule does not have
tribal implications, FEMA recognizes
the importance of engaging with Tribes
with respect to the FFRMS. FEMA
therefore summarizes below the
extensive engagement process that
precedes this rule, including significant
engagement with Tribal leaders. As
noted above, in the aftermath of
Hurricane Sandy, the President issued
Executive Order 13632,75 which created
the Federal Interagency Hurricane
Sandy Rebuilding Task Force (Sandy
Task Force). This Task Force was
chaired by the Secretary of HUD, who
led the effort in coordination with
multiple Federal partners, as well as an
advisory group composed of State, local,
and Tribal elected leaders.
In June 2013, the President issued a
Climate Action Plan which directs
agencies to take the appropriate actions
to reduce risk to Federal investments,
specifically directing agencies to build
on the work done by the Sandy Task
Force and update their flood risk
reduction standards for ‘‘federallyfunded projects’’ to ensure that
‘‘projects funded with taxpayer dollars
last as long as intended.’’ In November
2013, the Climate Task Force convened,
with 26 Governors, mayors, and local
75 77
76 The 1978 Guidelines were the original
interpretation of Executive Order 11988.
FR 74341, Dec. 14, 2012.
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and Tribal leaders serving as members.
After a year-long process of receiving
input from across State, local, Tribal
and territorial governments; private
businesses; trade associations; academic
organizations; civil society; and other
stakeholders, the Task Force provided a
recommendation to the President in
November 2014 that, in order to ensure
resiliency, Federal agencies, when
taking actions in and around
floodplains, should include
considerations of the effects of climate
change, including sea level rise, more
frequent and severe storms, and
increasing river flood risks.
Executive Order 13690 amended
Executive Order 11988 and established
the FFRMS. It also set forth a process by
which additional input from
stakeholders could be solicited and
considered before agencies took any
action to implement the FFRMS. It
required FEMA to publish, on behalf of
the MitFLG, an updated draft version of
the 1978 Guidelines 76 revised to
incorporate the changes required by
Executive Order 13690 and the FFRMS
in the Federal Register for notice and
comment. After the MitFLG received
and adjudicated the comments,
Executive Order 13690 required the
MitFLG to submit to the WRC
recommendations for finalizing the draft
Guidelines.
FEMA, on behalf of MitFLG,
published a Federal Register notice for
a 60-day notice and comment period
seeking comments on a draft of the
Revised Guidelines, 80 FR 6530, Feb. 5,
2015. Additionally, on February 27,
2015, FEMA wrote to Tribal Leaders
specifically asking for their comments
regarding the Executive Order
establishing the FFRMS.
In response to multiple requests, the
MitFLG extended the comment period
for an additional 30 days to end on May
6, 2015. The Administration also
attended or hosted over 25 meetings
across the country with State, local, and
Tribal officials (including 26 mayors)
and interested stakeholders to discuss
Executive Order 13690 and the
Guidelines. The MitFLG held 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 Guidelines.
There were Tribal representatives at
both the Ames, Iowa and Sacramento,
California listening sessions; however,
the specific Tribes that they were
representing were not identified. The
MitFLG published notice of these public
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57431
listening sessions in the Federal
Register.
The public comment period closed on
May 6, 2015. Two Tribes submitted
formal comments on the Guidelines
during the Federal Register comment
period. The MitFLG adjudicated all
comments and presented its
adjudication and recommendations to
the WRC as required. The WRC issued
the Revised Guidelines on October 8,
2015 and the corresponding Notice
published in the October 22, 2015
Federal Register at 80 FR 64008.
FEMA welcomes Tribal comments on
all aspects of this proposed rule.
H. Executive Order 13132, Federalism
Executive Order 13132, ‘‘Federalism,’’
64 FR 43255, Aug. 10, 1999, sets forth
principles and criteria that agencies
must adhere to in formulating and
implementing policies that have
federalism implications, that is,
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ Federal
agencies must closely examine the
statutory authority supporting any
action that would limit the
policymaking discretion of the States,
and to the extent practicable, must
consult with State and local officials
before implementing any such action.
FEMA has reviewed this proposed
rule under Executive Order 13132 and
has determined that this rule does not
have a substantial direct effect on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, and therefore does
not have federalism implications as
defined by the Executive Order.
Part 9 applies to FEMA disaster and
non-disaster assistance programs,
including Public Assistance, Individual
Assistance, HMA, and grants processed
from GPD. Pursuant to section 8 of
Executive Order 11988, Part 9 does not
apply to assistance provided for
emergency work essential to save lives
and protect property and public health
and safety, performed pursuant to
section 403 and 502 of the Stafford Act,
as amended (42 U.S.C. 5170b and 5192).
The proposed rule does not significantly
affect the rights, roles, and
responsibilities of States, and involves
no preemption of State law nor does it
limit State policymaking discretion.
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I. Executive Order 12898,
Environmental Justice
Under Executive Order 12898,
‘‘Federal Actions To Address
Environmental Justice in Minority
Populations and Low-Income
Populations,’’ (59 FR 7629, Feb. 16,
1994), as amended by Executive Order
12948, (60 FR 6381, Feb. 1, 1995),
FEMA incorporates environmental
justice into its policies and programs.
The Executive Order requires each
Federal agency to conduct its programs,
policies, and activities that substantially
affect human health or the environment,
in a manner that ensures that such
programs, policies, and activities do not
have the effect of excluding persons
from participation in programs, denying
persons the benefits of programs, or
subjecting persons to discrimination
because of race, color, national origin or
income level.
FEMA does not expect this rule to
have a disproportionately high and
adverse human health or environmental
effect on low income or minority
populations, but will consider any
information provided in comments to
inform its analysis of this issue as part
of a final rule.
J. Executive Order 12630, Taking of
Private Property
This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, ‘‘Governmental Actions
and Interference With Constitutionally
Protected Property Rights’’ (53 FR 8859,
Mar. 18, 1988).
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K. Executive Order 12988, Civil Justice
Reform
This NPRM meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, ‘‘Civil Justice
Reform’’ (61 FR 4729, Feb. 7, 1996), to
minimize litigation, eliminate
ambiguity, and reduce burden.
L. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
This NPRM will not create
environmental health risks or safety
risks for children under Executive Order
13045, ‘‘Protection of Children From
Environmental Health Risks and Safety
Risks’’ (62 FR 19885, Apr. 23, 1997).
M. Federal Participation in the
Development and Use of Voluntary
Consensus Standards and in Conformity
Assessment Activities, OMB Circular A–
119
‘‘Voluntary consensus standards’’ are
standards developed or adopted by
voluntary consensus standards bodies,
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both domestic and international. These
standards include provisions requiring
that owners of relevant intellectual
property have agreed to make that
intellectual property available on a nondiscriminatory, royalty-free or
reasonable royalty basis to all interested
parties. OMB Circular A–119 directs
agencies to use voluntary consensus
standards in their regulatory actions in
lieu of government-unique standards
except where inconsistent with law or
otherwise impractical. The policies in
the Circular are intended to reduce to a
minimum the reliance by agencies on
government-unique standards.
Consistent with President Obama’s
Climate Action Plan,77 the National
Security Council staff coordinated an
interagency effort to create a new flood
risk reduction standard for Federally
Funded Projects. The views of
Governors, mayors, and other
stakeholders were solicited and
considered as efforts were made to
establish a new flood risk reduction
standard for Federally Funded Projects.
The FFRMS is the result of these efforts.
List of Subjects in 44 CFR Part 9
Flood plains and Reporting and
recordkeeping requirements.
For the reasons discussed in the
preamble, FEMA proposes to amend 44
CFR part 9, as follows:
PART 9—FLOODPLAIN MANAGEMENT
AND PROTECTION OF WETLANDS
1. The authority citation for part 9 is
revised to read as follows:
■
Authority: E.O. 11988 of May 24, 1977. 3
CFR, 1977 Comp., p. 117; E.O. 11990 of May
24, 1977, 3 CFR, 1977 Comp. p. 121;
Reorganization Plan No. 3 of 1978, 43 FR
41943, 3 CFR, 1978 Comp., p. 329; E.O.
12127 of March 31, 1979, 44 FR 19367, 3
CFR, 1979 Comp., p. 376; E.O. 12148 of July
20, 1979, 44 FR 43239, 3 CFR, 1979 Comp.,
p. 412, as amended; 42 U.S.C. 5201; E.O.
13690, 80 FR 6425.
■
2. Revise § 9.1 to read as follows:
§ 9.1
Purpose of part.
This regulation sets forth the policy,
procedure, and responsibilities to
implement and enforce Executive Order
11988, Floodplain Management, as
amended, and Executive Order 11990,
Protection of Wetlands.
■ 3. Amend § 9.2 by revising paragraph
(b)(3) to read as follows:
77 The White House, ‘‘President Obama’s Climate
Action Plan, 2nd Anniversary Progress Report—
Continuing to cut carbon, pollution, protect
American communities, and lead internationally.’’
June 2015. https://www.whitehouse.gov/sites/
default/files/docs/cap_progress_report_final_w_
cover.pdf.
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§ 9.2
Policy.
*
*
*
*
*
(b) * * *
(3) Reduce the risk of flood loss to life
and property and improve the resilience
of communities and Federal assets
against the impacts of flooding based on
the best-available and actionable
science;
*
*
*
*
*
■ 4. In § 9.3:
■ a. Amend paragraph (a) by adding
‘‘and was amended by Executive Order
13690, January 30, 2015,’’ to the end of
the phrase; and
■ b. Revise the third sentence of
paragraph (d).
The revision reads as follows:
§ 9.3
Authority.
*
*
*
*
*
(d) * * * Section 2(d) of Executive
Order 11988 and Section 3(c) of
Executive Order 13690 require issuance
of new or amended regulations and
procedures to satisfy their substantive
and procedural provisions. * * *
■ 5. In § 9.4:
■ a. Add in alphanumeric order
definitions for ‘‘0.2 Percent Annual
Chance Flood,’’ ‘‘0.2 Percent Annual
Chance Floodplain,’’ ‘‘1 Percent Annual
Chance Flood or Base Flood,’’ ‘‘1
Percent Annual Chance Flood Elevation
or Base Flood Elevation,’’ ‘‘1 Percent
Annual Chance Floodplain or Base
Floodplain,’’ and ‘‘Associate
Administrator;’’
■ b. Remove the definitions of ‘‘Base
Flood’’ and ‘‘Base Floodplain;’’
■ c. Revise the definition of ‘‘Critical
Action;’’
■ d. Remove the definition of
‘‘Emergency Actions;’’
■ e. Add in alphabetical order
definitions for ‘‘Emergency Work,’’
‘‘Federal Flood Risk Management
Standard (FFRMS),’’ ‘‘Federal Flood
Risk Management Standard
Floodplain,’’ ‘‘FEMA Federally Funded
Project,’’ and ‘‘FIMA;’’
■ f. Remove the definitions of ‘‘Five
Hundred Year Floodplain’’ and ‘‘FIA,’’
■ g. Revise the definition of
‘‘Floodplain;’’
■ h. Remove the definition of
‘‘Mitigation Directorate;’’
■ i. Add in alphabetical order a
definition for ‘‘Nature-Based
Approaches;’’ and
■ j. Revise the definitions of ‘‘New
Construction,’’ ‘‘Orders,’’ and
‘‘Substantial Improvement.’’
The additions and revisions read as
follows:
§ 9.4
Definitions.
0.2 Percent Annual Chance Flood
means the flood which has a 0.2 percent
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chance of being equaled or exceeded in
any given year.
0.2 Percent Annual Chance
Floodplain means the area subject to
flooding by the 0.2 percent annual
chance flood.
1 Percent Annual Chance Flood or
Base Flood means the flood that has a
1 percent chance of being equaled or
exceeded in any given year.
1 Percent Annual Chance Flood
Elevation or Base Flood Elevation means
the computed elevation to which
floodwater is anticipated to rise during
the 1 percent annual chance or base
flood. The specific term ‘‘base flood
elevation’’ or BFE is used in the
National Flood Insurance Program
(NFIP) and shown on FEMA Flood
Insurance Rate Maps (FIRMs) and on the
flood profiles in the FEMA Flood
Insurance Study (FIS) Reports to
indicate the minimum level of flooding
to be used by a community in its
floodplain management regulations.
1 Percent Annual Chance Floodplain
or Base Floodplain means the area
subject to flooding by the 1 percent
annual chance or base flood.
*
*
*
*
*
Associate Administrator means the
Associate Administrator of the Federal
Insurance and Mitigation
Administration.
*
*
*
*
*
Critical Action means an action for
which even a slight chance of flooding
is too great. Critical actions include, but
are not limited to, those which create or
extend the useful life of structures or
facilities:
(1) Such as those which produce, use
or store highly volatile, flammable,
explosive, toxic or water-reactive
materials;
(2) Such as hospitals and nursing
homes, and housing for the elderly,
which are likely to contain occupants
who may not be sufficiently mobile to
avoid the loss of life or injury during
flood and storm events;
(3) Such as emergency operation
centers, or data storage centers which
contain records or services that may
become lost or inoperative during flood
and storm events; and
(4) Such as generating plants, and
other principal points of utility lines.
*
*
*
*
*
Emergency Work means work
essential to save lives and protect
property and public health and safety
performed under sections 403 and 502
of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act of 1988
(42 U.S.C. 5170b and 5192). See 44 CFR
part 206, subpart C.
*
*
*
*
*
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Federal Flood Risk Management
Standard (FFRMS) means the Federal
flood risk management standard
established by Executive Order 13690 to
be incorporated into existing processes
used to implement Executive Order
11988.
Federal Flood Risk Management
Standard (FFRMS) Floodplain means
the floodplain established using one of
the following approaches:
(1) Climate-Informed Science
Approach (CISA)—the elevation and
flood hazard area that result from using
a climate-informed science 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. This approach will also
include an emphasis on whether the
action is a critical action as one of the
factors to be considered when
conducting the analysis;
(2) Freeboard Value Approach
(FVA)—the elevation and flood hazard
area that result from using the freeboard
value, reached by adding an additional
2 feet to the base flood elevation for
non-critical actions and by adding an
additional 3 feet to the base flood
elevation for critical actions;
(3) 0.2 Percent Annual Chance Flood
Approach (0.2PFA)—the area subject to
flooding by the 0.2 percent annual
chance flood; or
(4) The elevation and flood hazard
area that result from using any other
method identified in an update to the
FFRMS.
FEMA Federally Funded Project
means actions where FEMA funds are
used for new construction, substantial
improvement, or to address substantial
damage to a structure or facility.
*
*
*
*
*
FIMA means the Federal Insurance
and Mitigation Administration.
*
*
*
*
*
Floodplain means the lowland and
relatively flat areas adjoining inland and
coastal waters. The floodplain may be
more specifically identified as the 1
percent annual chance (base) floodplain,
the 0.2 percent annual chance
floodplain, or the FFRMS floodplain.
‘‘Floodplain’’ does not include areas
subject only to mudflow until FIMA
adopts maps identifying ‘‘M’’ Zones.
*
*
*
*
*
Nature-Based Approaches means the
features (sometimes referred to as
‘‘green infrastructure’’) designed to
mimic natural processes and provide
specific services such as reducing flood
risk and/or improving water quality.
Nature-based approaches are created by
human design (in concert with and to
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57433
accommodate natural processes) and
generally, but not always, must be
maintained in order to reliably provide
the intended level of service.
New Construction means the
construction of a new structure or
facility or the replacement of a structure
or facility which has been totally
destroyed.
*
*
*
*
*
Orders means Executive Order 11988,
Floodplain Management, as amended by
Executive Order 13690, and Executive
Order 11990, Protection of Wetlands.
*
*
*
*
*
Substantial Improvement means any
repair, reconstruction or other
improvement of a structure or facility,
which has been damaged in excess of,
or the cost of which equals or exceeds,
50% of the market value of the structure
or replacement cost of the facility
(including all ‘‘public facilities’’ as
defined in the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act of 1988) before the repair
or improvement is started, or if the
structure or facility has been damaged
and is proposed to be restored, before
the damage occurred. If a facility is an
essential link in a larger system, the
percentage of damage will be based on
the relative cost of repairing the
damaged facility to the replacement cost
of the portion of the system which is
operationally dependent on the facility.
The term ‘‘substantial improvement’’
does not include any alteration of a
structure or facility listed on the
National Register of Historic Places or a
State Inventory of Historic Places.
*
*
*
*
*
■ 6. In § 9.5:
■ a. Revise paragraph (a)(3) and the last
sentence in paragraph (c) introductory
text, and paragraphs (c)(1) through (12);
■ b. Remove paragraphs (c)(13) and (14);
■ c. Revise the last sentence of
paragraph (d) introductory text,
paragraphs (d)(1) through (3), paragraph
(d)(4) introductory text, the second
sentence of paragraph (e), paragraph
(f)(1), paragraph (f)(2) introductory text,
and the fourth and fifth sentences of
paragraph (g) introductory text.
The revisions read as follows:
§ 9.5
Scope.
(a) * * *
(3) The amendments to this part
incorporating the changes required by
Executive Order 13690 and the FFRMS
apply to new actions commenced on or
after.
*
*
*
*
*
(c) * * * The provisions of these
regulations do not apply to the
following (all references are to the
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Robert T. Stafford Disaster Relief and
Emergency Assistance Act of 1988,
Public Law 93–288, as amended, except
as noted):
(1) Assistance provided for emergency
work essential to save lives and protect
property and public health and safety
performed pursuant to sections 403 and
502;
(2) Emergency Support Teams
(section 303);
(3) Unemployment Assistance
(section 410);
(4) Emergency Communications
(section 418);
(5) Emergency Public Transportation
(section 419);
(6) Fire Management Assistance
(Section 420);
(7) Community Disaster Loans
(section 417), except to the extent that
the proceeds of the loan will be used for
repair of facilities or structures or for
construction of additional facilities or
structures;
(8) The following Federal Assistance
to Individuals and Households Program
(section 408) categories of financial
assistance:
(i) Housing needs or expenses, except
for restoring, repairing or building
private bridges, purchase of mobile
homes and provision of structures as
minimum protective measures;
(ii) Personal property needs or
expenses;
(iii) Transportation expenses;
(iv) Medical/dental expenses;
(v) Funeral expenses;
(vi) Flood insurance premium;
(vii) Temporary Housing.
(9) Use of existing resources in the
temporary housing assistance program
[section 408], except that Step 1 (§ 9.7)
shall be carried out;
(10) Debris removal (section 407),
except those grants involving nonemergency disposal of debris within a
floodplain or wetland;
(11) Repairs or replacements under
section 406, of less than $5,000 to
damaged structures or facilities;
(12) Placement of families in existing
resources and Temporary Relocation
Assistance provided to those families so
placed under the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, Public Law 96–510.
(d) * * * The references are to the
Robert T. Stafford Disaster Relief and
Emergency Assistance Act of 1988,
Public Law 93–288, as amended.
(1) Actions performed under the
Federal Assistance to Individuals and
Households Program (section 408) for
restoring or repairing a private bridge,
except where two or more individuals
or families are authorized to pool their
grants for this purpose.
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(2) Small project grants (section 422),
except to the extent that Federal funding
involved is used for construction of new
facilities or structures.
(3) Replacement of building contents,
materials and equipment. (sections 406
and 422).
(4) Repairs under section 406 to
damaged facilities or structures, except
any such action for which one or more
of the following is applicable:
*
*
*
*
*
(e) * * * This finding will be made
in consultation with the Federal
Insurance and Mitigation
Administration and the Council on
Environmental Quality as provided in
section 2(d) of Executive Order 11988.
* * *
(f) The National Flood Insurance
Program (NFIP). (1) Most of what is
done by FIMA in administering the
National Flood Insurance Program is
performed on a program-wide basis. For
all regulations, procedures or other
issuances making or amending program
policy, FIMA shall apply the 8-step
decision-making process to that
program-wide action. The action to
which the 8-step process must be
applied is the establishment of
programmatic standards or criteria, not
the application of programmatic
standards or criteria to specific
situations. Thus, for example, FIMA
would apply the 8-step process to a
programmatic determination of
categories of structures to be insured,
but not to whether to insure each
individual structure. The two prime
examples of where FIMA does take site
specific actions which would require
individual application of the 8-step
process are property acquisition under
section 1362 of the National Flood
Insurance Act of 1968, as amended, and
the issuance of an exception to a
community under § 60.6(b) of this
chapter.
(2) The provisions set forth in this
regulation are not applicable to the
actions enumerated below except that
the FIMA Associate Administrator shall
comply with the spirit of the Orders to
the extent practicable:
*
*
*
*
*
(g) * * * The references are to the
Robert T. Stafford Disaster Relief and
Emergency Assistance Act of 1988,
Public Law 93–288. The above
requirements apply to repairs, under
section 406, between $5,000 and
$25,000 to damaged structures of
facilities except for:
*
*
*
*
*
■ 7. In § 9.6, in paragraph (b), revise
Step 1 to read as follows:
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§ 9.6
Decision-making process.
*
*
*
*
*
(b) * * *
Step 1. Determine whether the
proposed action is located in a wetland
and/or a floodplain; and whether it has
the potential to affect or be affected by
a floodplain or wetland (see § 9.7);
*
*
*
*
*
■ 8. In § 9.7, revise paragraphs (a), (b),
and (c) to read as follows:
§ 9.7 Determination of proposed action’s
location.
(a) The purpose of this section is to
establish Agency procedures for
determining whether any action as
proposed is located in or affects a
floodplain or a wetland.
(b) Information needed. (1) The
Agency shall obtain enough information
so that it can fulfill the requirements of
the Orders to:
(i) Avoid floodplain and wetland
locations unless they are the only
practicable alternatives; and
(ii) Minimize harm to and within
floodplains and wetlands. In all cases,
FEMA shall determine whether the
proposed action is located in a
floodplain or wetland. In the absence of
a finding to the contrary, FEMA may
assume that a proposed action involving
a facility or structure that has been
flooded is in the floodplain. Information
about the 1 percent annual chance
(base) floodplain, 0.2 percent annual
chance floodplain, and FFRMS
floodplain and location of floodways
and coastal high hazard areas may also
be needed to comply with these
regulations, especially § 9.11.
(2) The following additional flooding
characteristics shall be identified by the
Regional Administrator as appropriate:
(i) Velocity of floodwater;
(ii) Rate of rise of floodwater;
(iii) Duration of flooding;
(iv) Available warning and evacuation
time and routes;
(v) Special problems:
(A) Levees;
(B) Erosion;
(C) Subsidence;
(D) Sink holes;
(E) Ice jams;
(F) Debris load;
(G) Pollutants;
(H) Wave heights;
(I) Groundwater flooding;
(J) Mudflow.
(c) Floodplain determination. (1) In
making the floodplain determination,
FEMA shall follow this sequence:
(i) Determine whether the project is a
FEMA Federally Funded Project as
defined in § 9.4. If the project is a FEMA
Federally Funded Project, FEMA shall
establish the FFRMS floodplain and
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associated flood elevation by using one
of the following approaches:
(A) Climate-Informed Science
Approach (CISA): The elevation and
flood hazard area that result from using
a climate-informed science 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. This approach will also
include an emphasis on whether the
action is a critical action as one of the
factors to be considered when
conducting the analysis;
(B) Freeboard Value Approach (FVA):
The elevation and flood hazard area that
result from using the freeboard value,
reached by adding an additional 2 feet
to the base flood elevation as
determined using the process defined in
paragraph (c)(1)(iii) of this section for
non-critical actions and by adding an
additional 3 feet to the base flood
elevation as determined in paragraph
(c)(1)(iii) of this section for critical
actions;
(C) 0.2 Percent Annual Chance Flood
Approach (0.2PFA): The area subject to
flooding by the 0.2 percent annual
chance flood; or
(D) The elevation and flood hazard
area that result from using any other
method identified in an update to the
FFRMS.
(ii) Notwithstanding any other
provision of FEMA regulations, FEMA
may select among and prioritize the
approaches in paragraph (c)(1)(i) of this
section by separate policy. In addition,
FEMA may provide an exception to
using the FFRMS floodplain for FEMA
Federally Funded Projects and instead
use the 1 percent annual chance (base)
floodplain for non-critical actions or the
0.2 percent annual chance floodplain for
critical actions where the action is in
the interest of national security, where
the action is an emergency action,
where application to a Federal facility
or structure is demonstrably
inappropriate, or where the action is a
mission-critical requirement related to a
national security interest or an
emergency action.
(iii) If the project is not a FEMA
Federally Funded Project as defined in
§ 9.4, FEMA shall use, at a minimum,
the 1 percent annual chance floodplain
for non-critical actions and the 0.2
percent annual chance floodplain for
critical actions. FEMA shall establish
the floodplain and associated elevation
by following this sequence:
(A) The Regional Administrator shall
consult the FEMA Flood Insurance Rate
Map (FIRM), the Flood Boundary
Floodway Map (FBFM), and the Flood
Insurance Study (FIS).
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(B) If a detailed map (FIRM or FBFM)
is not available, the Regional
Administrator shall consult a FEMA
Flood Hazard Boundary Map (FHBM). If
data on flood elevations, floodways, or
coastal high hazard areas are needed, or
if the map does not delineate the flood
hazard boundaries in the vicinity of the
proposed site, the Regional
Administrator shall seek the necessary
detailed information and assistance
from other sources, such as the
following Sources of Maps and
Technical Information:
(1) U.S. Department of Agriculture:
Natural Resources Conservation Service;
(2) Department of Defense: U.S. Army
Corps of Engineers;
(3) Department of Commerce:
National Oceanic and Atmospheric
Administration;
(4) Department of Homeland Security:
FEMA;
(5) Department of the Interior: Bureau
of Reclamation; U.S. Fish and Wildlife
Service; United States Geological
Survey;
(6) Tennessee Valley Authority;
(7) Department of Transportation;
(8) Environmental Protection Agency;
(9) General Services Administration;
or
(10) States and Regional Agencies.
(C) If the sources listed do not have
or know of the information necessary to
comply with the Orders’ requirements,
the Regional Administrator shall seek
the services of a Federal or other
engineer experienced in this type of
work.
(2) If the determination of the
floodplain involves an area or location
within extensive Federal or State
holdings or a headwater area, and an
FIS, FIRM, FBFM, or FHBM is not
available, the Regional Administrator
shall seek information from the land
administering agency before information
and/or assistance is sought as described
in paragraph (c)(1)(iii)(B) of this section.
If none of these sources has information
or can provide assistance, the services of
an experienced Federal or other
engineer shall be sought as described in
paragraph (c)(1)(iii)(C) of this section.
*
*
*
*
*
■ 9. In § 9.8, revise paragraph (c)(5)(ii)
to read as follows:
§ 9.8
Public notice requirements.
*
*
*
*
*
(c) * * *
(5) * * *
(ii) Based on the factors in paragraph
(c)(3) of this section, a map of the area
or other identification of the floodplain
and/or wetland areas which is of
adequate scale and detail so that the
location is discernible; instead of
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57435
publication of such map, FEMA may
state that such map is available for
public inspection, including the
location at which such map may be
inspected and a telephone number to
call for information;
*
*
*
*
*
■ 10. In § 9.9:
■ a. In paragraph (b)(2), remove ‘‘; and’’
and add a period in its place and add
a sentence to the end of paragraph
(b)(2);
■ b. Revise paragraph (d)(1);
■ c. Remove paragraph (d)(2);
■ d. Redesignate paragraph (d)(3) as
paragraph (d)(2); and
■ e. Lift the suspension of paragraph
(e)(6) and remove the paragraph.
The addition and revision read as
follows:
§ 9.9 Analysis and reevaluation of
practicable alternatives.
*
*
*
*
*
(b) * * *
(2) * * * In developing the
alternative actions, the Agency shall
use, where possible, natural systems,
ecosystem processes, and nature-based
approaches; and
*
*
*
*
*
(d) * * *
(1) The Agency shall not locate the
proposed action in the floodplain as
established by § 9.7(c) or in a wetland if
a practicable alternative exists outside
the floodplain or wetland.
■ 11. In § 9.11:
■ a. Revise paragraph (c)(1);
■ b. Revise the first sentence of
paragraph (d) introductory text, the
second sentence of paragraph (d)(2), and
paragraphs (d)(3) and (d)(9);
■ c. Revise paragraphs (e)(1), (e)(2)
introductory text, and (e)(2)(ii)
introductory text;
■ d. Revise the last sentence in the
undesignated paragraph following the
National Flood Insurance Program
address in paragraph (e)(3)(i)(E);
■ e. Revise paragraph (e)(3)(ii); and
■ f. Lift the suspension of paragraph
(e)(4) and remove the paragraph.
The revisions read as follows:
§ 9.11
Mitigation.
*
*
*
*
*
(c) * * *
(1) Potential harm to lives and the
investment at risk in the floodplain as
established in § 9.7(c);
*
*
*
*
*
(d) * * * The Agency shall apply at
a minimum, the following standards to
its actions to comply with the
requirements of paragraphs (b) and (c),
of this section (except as provided in
§ 9.5(c), (d), and (g) regarding categories
of partial or total exclusion). * * *
*
*
*
*
*
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(2) * * * There shall be no
construction of a new or substantially
improved structure in a coastal high
hazard area unless it is elevated on
adequately anchored pilings or
columns, and securely anchored to such
piles or columns so that the lowest
portion of the structural members of the
lowest floor (excluding the pilings or
columns) is elevated to or above the
FFRMS floodplain.* * *
(3) Elevation of structures. (i) There
shall be no new construction or
substantial improvement of structures
unless the lowest floor of the structures
(including basement) is at or above the
level of the FFRMS floodplain.
(ii) There shall be no new
construction or substantial
improvement of structures involving a
critical action unless the lowest floor of
the structure (including the basement) is
at or above the level of the FFRMS
floodplain.
(iii) If the subject structure is
nonresidential, FEMA may, instead of
elevating the structure, approve the
design of the structure and its attendant
utility and sanitary facilities so that
below the flood level the structure is
water tight with walls substantially
impermeable to the passage of water and
with structural components having the
capability of resisting hydrostatic and
hydrodynamic loads and effects of
buoyancy.
(iv) The provisions of paragraphs
(d)(3)(i), (ii), and (iii) of this section do
not apply to the extent that the Federal
Insurance and Mitigation
Administration has granted an
exception under § 60.6(b) of this chapter
(formerly 24 CFR 1910.6(b)), or the
community has granted a variance
which the Regional Administrator
determines is consistent with § 60.6(a)
of this chapter (formerly 24 CFR
1910.6(a)). In a community which does
not have a FIRM in effect, FEMA may
approve a variance from the standards
of paragraphs (d)(3)(i), (ii), and (iii) of
this section, after compliance with the
standards of § 60.6(a) of this chapter.
*
*
*
*
*
(9) In the replacement of building
contents, materials and equipment, the
Regional Administrator shall require as
appropriate, disaster proofing of the
building and/or elimination of such
future losses by relocation of those
building contents, materials and
equipment outside or above the
floodplain as established in § 9.7(c).
(e) * * *
(1) The Federal Insurance and
Mitigation Administration shall make
identification of all coastal high hazard
areas a priority;
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(2) Beginning October 1, 1981, the
Federal Insurance and Mitigation
Administration of FEMA may only
provide flood insurance for new
construction or substantial
improvements in a coastal high hazard
area if:
*
*
*
*
*
(ii) The structure is rated by FEMA–
FIMA based on a system which reflects
the capacity to withstand the effects of
the 100-year frequency flood including,
but not limited to, the following factors:
*
*
*
*
*
(3)(i) * * *
(E) * * * Unless a property owner is
seeking an adjustment of the rate
prescribed by FEMA–FIMA, this
information need not be submitted.
(ii) FIMA shall notify communities
with coastal high hazard areas and
federally related lenders in such
communities, of the provisions of this
paragraph. Notice to the lenders may be
accomplished by the Federal
instrumentalities to which the lenders
are related.
*
*
*
*
*
■ 12. In § 9.13,
■ a. Revise paragraph (d)(1) and the first
sentence of paragraph (d)(3)
introductory text;
■ b. Add a sentence to the end of
paragraph (d)(4)(i); and
■ c. Revise the first sentence of
paragraph (d)(4)(ii), and revise
paragraph (e).
The revisions and addition read as
follows:
§ 9.13 Particular types of temporary
housing.
*
*
*
*
*
(d) * * *
(1) The temporary housing action
shall be evaluated in accordance with
the provisions of § 9.7 to determine if it
is in or affects the 1 percent annual
chance (base) floodplain or wetland.
*
*
*
*
*
(3) An individual or family shall not
be housed in the 1 percent annual
chance (base) floodplain or wetland
unless the Regional Administrator has
complied with the provisions of § 9.9 to
determine that such site is the only
practicable alternative. * * *
*
*
*
*
*
(4) * * *
(i) * * * Actual elevation levels will
be based on manufacturer specifications
and applicable Agency guidance.
(ii) No mobile home or readily
fabricated dwelling may be placed if
such placement is inconsistent with the
criteria of the National Flood Insurance
Program (44 CFR parts 59–60) or any
PO 00000
Frm 00036
Fmt 4701
Sfmt 4702
more restrictive Federal, State, or local
floodplain management standard. * * *
*
*
*
*
*
(e)(1) FEMA shall not sell or
otherwise dispose of mobile homes or
other readily fabricated dwellings which
would be located in floodways or
coastal high hazard areas. FEMA shall
not sell or otherwise dispose of mobile
homes or other readily fabricated
dwellings which would be located in
floodplains or wetlands unless there is
full compliance with the 8-step process.
Given the vulnerability of mobile homes
to flooding, a rejection of a nonfloodplain location alternative and of
the no-action alternative shall be based
on—
(i) A compelling need of the family or
individual to buy a mobile home for
permanent housing; and
(ii) A compelling requirement to
locate the unit in a floodplain.
(2) FEMA shall not sell or otherwise
dispose of mobile homes or other
readily fabricated dwellings in the
FFRMS floodplain unless they are
elevated at least to the level of the
FFRMS floodplain.
(3) The Regional Administrator shall
notify the Assistant Administrator for
Mitigation of each instance where a
floodplain location has been found to be
the only practicable alternative for a
mobile home sale.
■ 13. In § 9.17, revise the first sentence
of paragraph (a) and paragraph (b)
introductory text to read as follows:
§ 9.17
Instructions to applicants.
(a) * * * In accordance with
Executive Orders 11988, as amended,
and 11990, the Federal executive
agencies must respond to a number of
floodplain management and wetland
protection responsibilities before
carrying out any of their activities,
including the provision of Federal
financial and technical assistance.
* * *
(b) Responsibilities of Applicants.
Based upon the guidance provided by
the Agency under § 9.16, that guidance
included in the U.S. Water Resources
Council’s ‘‘Guidelines for Implementing
Executive Order 11988, Floodplain
Management, and Executive Oder
13690, Establishing a Federal Flood Risk
Management Standard and a Process for
Further Soliciting and Considering
Stakeholder Input,’’ and based upon the
provisions of the Orders and this
regulation, applicants for Agency
assistance shall recognize and reflect in
their application:
*
*
*
*
*
■ 14. In § 9.18, revise the second
sentence of paragraph (b)(1) and the first
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sentence of paragraph (b)(2) to read as
follows:
§ 9.18
Responsibilities.
*
*
*
*
(b) * * *
(1) * * * When a decision of a
Regional Administrator relating to
disaster assistance is appealed, the
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Associate Administrator for FIMA may
make determinations under these
regulations on behalf of the Agency.
(2) Prepare and submit to the Office
of Chief Counsel reports to the Office of
Management and Budget in accordance
with section 2(b) of Executive Order
11988, as amended, and section 3 of
Executive Order 11990. * * *
PO 00000
Frm 00037
Fmt 4701
Sfmt 9990
57437
Appendix A to Part 9 [Removed]
■
15. Remove appendix A to part 9.
Dated: August 15, 2016.
W. Craig Fugate,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2016–19810 Filed 8–19–16; 8:45 am]
BILLING CODE 9111–66–P
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[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)]
[Proposed Rules]
[Pages 57401-57437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19810]
[[Page 57401]]
Vol. 81
Monday,
No. 162
August 22, 2016
Part V
Department of Homeland Security
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Federal Emergency Management Agency
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44 CFR Part 9
Updates to Floodplain Management and Protection of Wetlands
Regulations To Implement Executive Order 13690 and the Federal Flood
Risk Management Standard; Proposed Rule
Federal Register / Vol. 81 , No. 162 / Monday, August 22, 2016 /
Proposed Rules
[[Page 57402]]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 9
[Docket ID: FEMA-2015-0006]
RIN 1660-AA85
Updates to Floodplain Management and Protection of Wetlands
Regulations To Implement Executive Order 13690 and the Federal Flood
Risk Management Standard
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Emergency Management Agency (FEMA) proposes to
amend its regulations on ``Floodplain Management and Protection of
Wetlands'' to implement Executive Order 13690, which establishes the
Federal Flood Risk Management Standard (FFRMS). FEMA also proposes a
supplementary policy (FEMA Policy: 078-3) that would further clarify
how FEMA applies the FFRMS.
DATES: Comments must be received no later than October 21, 2016.
ADDRESSES: You may submit comments, identified by Docket ID: FEMA-2015-
0006, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of
Chief Counsel, Federal Emergency Management Agency, 8NE-1604, 500 C
Street SW., Washington, DC 20472-3100.
To avoid duplication, please use only one of these methods. All
comments received will be posted without change to https://www.regulations.gov, including any personal information provided. For
instructions on submitting comments, see the Public Participation
portion of the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Kristin Fontenot, Director, Office of
Environmental Planning and Historic Preservation, Federal Insurance and
Mitigation Administration, DHS/FEMA, 400 C Street SW., Suite 313,
Washington, DC 20472-3020. Phone: 202-646-2741; Email:
Kristin.Fontenot@fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
III. Background
A. Executive Order 11988, ``Floodplain Management''
B. 44 CFR Part 9, ``Floodplain Management and Protection of
Wetlands''
C. Reevaluation of the 1 Percent Chance or 100-Year Flood
Standard
D. Issuance of Executive Order 13690 and the Federal Flood Risk
Management Standard (FFRMS), and Revision of the 1978 Guidelines
E. Substantive Components of the FFRMS
F. FEMA's Implementation of Executive Order 13690 and FFRMS
IV. Discussion of the Proposed Rule
A. Authority Citation
B. Section 9.1--Purpose of Part
C. Section 9.2--Policy
D. Section 9.3--Authority
E. Section 9.4--Definitions
F. Section 9.5--Scope
G. Section 9.6--Decision-Making Process
H. Section 9.7--Determination of Proposed Action's Location
I. Section 9.8--Public Notice Requirements
J. Section 9.9--Analysis and Reevaluation of Practicable
Alternatives
K. Section 9.11--Mitigation
L. Section 9.13--Particular Types of Temporary Housing
M. Section 9.17--Instructions to Applicants
N. Section 9.18--Responsibilities
O. Appendix A to Part 9--Decision-Making Process for E.O. 11988
V. Response to Leadership Intent Comments
VI. FFRMS FY 2016 Appropriations Language
VII. Regulatory Analyses
A. Executive Order 12866, Regulatory Planning and Review &
Executive Order 13563, Improving Regulation and Regulatory Review
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. National Environmental Policy Act (NEPA) of 1969
E. Paperwork Reduction Act (PRA) of 1995
F. Privacy Act
G. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13132, Federalism
I. Executive Order 12898, Environmental Justice
J. Executive Order 12630, Taking of Private Property
K. Executive Order 12988, Civil Justice Reform
L. Executive Order 13045, Protection of Children From
Environmental Health Risks and Safety Risks
M. Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities, OMB
Circular A-119
Table of Abbreviations
0.2PFA--0.2 Percent Annual Chance Flood Approach
ABA--Architectural Barriers Act
ADA--Americans With Disabilities Act
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
CISA--Climate-Informed Science Approach
CRS--Community Rating System
EA--Environmental Assessment
EIS--Environmental Impact Statement
FBFM--Flood Boundary Floodway Map
FEMA--Federal Emergency Management Agency
FFRMS--Federal Flood Risk Management Standard
FHBM--Flood Hazard Boundary Map
FIMA--Federal Insurance & Mitigation Administration
FIRM--Flood Insurance Rate Map
FIS--Flood Insurance Study
FMA--Flood Mitigation Assistance
FVA--Freeboard Value Approach
GPD--Grant Programs Directorate
HMA--Hazard Mitigation Assistance
HUD--Department of Housing and Urban Development
IA--Individual Assistance
IPAWS--Integrated Public Alert Warning System
IRFA--Initial Regulatory Flexibility Analysis
MHU--Manufactured Housing Unit
MitFLG--Mitigation Framework Leadership Group
NEPA--National Environmental Policy Act of 1969
NFIA--National Flood Insurance Act, as Amended
NFIP--National Flood Insurance Program
NMF--National Mitigation Framework
NOAA--National Oceanic and Atmospheric Administration
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PA--Public Assistance
PDM--Pre-Disaster Mitigation
PHC--Permanent Housing Construction
PIA--Privacy Impact Assessment
PRA--Paperwork Reduction Act of 1995
PV--Present Value
RFA--Regulatory Flexibility Act
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
SORN--System of Records Notice
Stafford Act--Robert T. Stafford Disaster Relief and Emergency
Assistance Act, as Amended
USGS--United States Geological Survey
WRC--Water Resources Council
I. Public Participation
We encourage you to participate in this rulemaking by submitting
comments and related materials. We will consider all comments and
materials received during the comment period.
If you submit a comment, identify the agency name and the Docket ID
for this rulemaking, indicate the specific section of this document to
which each comment applies, and give the reason for each comment. You
may submit your comments and materials by electronic means, mail, or
delivery to the address under the ADDRESSES section. Please submit your
comments and materials by only one means.
Regardless of the method used for submitting comments or material,
all submissions will be posted, without change, to the Federal e-
Rulemaking Portal at www.regulations.gov, and will
[[Page 57403]]
include any personal information you provide. Therefore, submitting
this information makes it public. You may wish to read the Privacy Act
notice that is available via a link on the homepage of
www.regulations.gov.
Viewing comments and documents: For access to the docket to read
background documents or comments received, go to the Federal e-
Rulemaking Portal at https://www.regulations.gov. Background documents
and submitted comments may also be inspected at the Office of Chief
Counsel, Federal Emergency Management Agency, 500 C Street SW., 8NE-
1604, Washington, DC 20472-3100.
II. Executive Summary
The Federal Emergency Management Agency (FEMA) is proposing to
amend 44 CFR part 9 ``Floodplain Management and Protection of
Wetlands'' and issue a supplementary policy to implement the Federal
Flood Risk Management Standard (FFRMS) that was established by
Executive Order 13690. 44 CFR part 9 describes the 8-step process FEMA
uses to determine whether a proposed action would be located within or
affect a floodplain, and if so, whether and how to continue with or
modify the proposed action. Executive Order 13690 and the FFRMS changed
the Executive Branch-wide guidance for defining the ``floodplain'' with
respect to ``federally funded projects'' (i.e., actions involving the
use of Federal funds for new construction, substantial improvement, or
to address substantial damage to a structure or facility). For FEMA
Federally Funded Projects, FEMA proposes to use the updated definition
of ``floodplain'' contained in the FFRMS. As discussed further below,
the FFRMS allows the agency to define ``floodplain'' using any of three
``approaches.'' In many cases, each of these approaches would result in
a larger floodplain and a requirement to design projects such that they
are resilient to a higher vertical elevation. For actions that do not
meet the definition of FEMA Federally Funded Project, FEMA would
continue to use the historical definition of floodplain, i.e., the area
subject to a one percent or greater chance of flooding in any given
year (or the area subject to a 0.2 percent annual chance of flooding in
any given year for critical actions). Finally, the proposed rule would
require the use, where possible, of natural systems, ecosystem
processes, and nature-based approaches in the development of
alternatives for all actions proposed in a floodplain.
FEMA estimates that for the 10-year period after the rule goes into
effect, the benefits would justify the costs. Flooding is the most
common and costly type of natural disaster in the United States, and
floods are expected to be more frequent and more severe over the next
century due in part to the projected effects of climate change. This
proposed rule would ensure that FEMA Federally Funded Projects are
designed to be resilient to both current and future flood risks.
III. Background
Below, FEMA describes in more specific detail the basis for this
proposed rule. Section III.A. describes Executive Order 11988 and the
Water Resources Council's 1978 ``Floodplain Management Guidelines''
(1978 Guidelines). Executive Order 11988 along with the 1978 Guidelines
established an 8-step decision-making process by which Federal agencies
carry out Executive Order 11988's direction to avoid the long- and
short-term adverse impacts associated with the occupancy and
modification of the floodplain and avoid the direct or indirect support
of floodplain development whenever there is a practicable alternative.
Section III.B. describes FEMA implementing regulations at 44 CFR part
9, which closely follow the model decision-making process. Section
III.C. describes how lessons learned from major events, including
Hurricane Sandy, prompted reevaluation of the prevailing standard for
determining whether a proposed action was located within a floodplain.
Section III.D. describes the development of Executive Order 13690
and the Federal Flood Risk Management Standard. Lessons learned from
major flood events, including Hurricane Sandy, prompted reevaluation of
the prevailing standard. Pursuant to direction from the President's
Climate Action Plan and to build on the work of the Hurricane Sandy
Rebuilding Task Force, the Mitigation Framework Leadership Group
developed the Federal Flood Risk Management Standard. Subsequently, the
President issued Executive Order 13690 to establish the Federal Flood
Risk Management Standard, and to amend Executive Order 11988. Executive
Order 13690 directs agencies to issue or amend their existing
regulations and procedures to comply with the Order. Section III.E.
describes the substantive components of the Federal Flood Risk
Management Standard and Section III.F. describes FEMA's proposed
approach to implement the required changes.
A. Executive Order 11988, ``Floodplain Management''
The President issued Executive Order 11988, (42 FR 26951, May 25,
1977) in furtherance of the National Flood Insurance Act of 1968, as
amended (42 U.S.C. 4001 et seq.); the Flood Disaster Protection Act of
1973, as amended (Pub. L. 93-234, 87 Stat. 975); and the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.).\1\
Executive Order 11988 requires Federal agencies to avoid, to the extent
possible, the long- and short-term adverse impacts associated with the
occupancy and modification of floodplains, where there is a practicable
alternative. It requires each Federal agency to provide leadership and
take action to reduce the risk of flood loss, to minimize the impact of
floods on human safety, health, and welfare, and to restore and
preserve the natural and beneficial values served by floodplains in
carrying out its responsibilities for: (1) Acquiring, managing, and
disposing of Federal lands and facilities; (2) providing federally
undertaken, financed, or assisted construction and improvements; and
(3) conducting Federal activities and programs affecting land use,
including but not limited to water and related land resources planning,
regulating, and licensing activities. It states that each agency has a
responsibility to evaluate the potential effects of any actions it may
take in a floodplain; to ensure that its planning, programs, and budget
requests reflect consideration of flood hazards and floodplain
management; and to prescribe procedures to implement the policies and
requirements of the Executive Order.
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\1\ The National Flood Insurance Act and the Flood Disaster
Protection Act establish a multi-purpose program to provide flood
insurance, minimize the damage caused by flood losses, and guide the
development of proposed construction, where practicable, away from
floodplains. NEPA requires Federal agencies to analyze the
environmental impacts of proposed actions and evaluate alternatives
to those actions, which includes the evaluation of floodplains.
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In order to meet these requirements, each agency, before taking an
action, must determine whether the proposed action will occur in a
floodplain.\2\ Prior to being revised in 2015, Executive Order 11988
defined the word ``floodplain'' to include, at a minimum, the ``area
subject to a one percent or
[[Page 57404]]
greater chance of flooding in any given year.'' \3\ The Executive Order
defines agency ``action'' to include actions that the agency takes
directly (such as when a Federal agency builds a new facility for its
own operations) as well as actions that a non-Federal entity takes
using Federal funding (such as a State or local government building a
new facility using Federal grant funding).
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\2\ Any action FEMA takes, including its provision of grants for
disaster assistance, first undergoes an analysis pursuant to
Executive Order 11988 (unless the action is specifically exempted
from the requirements of the Order). The grant recipient, therefore,
generally provides information to FEMA about the practicability of
alternatives outside the floodplain and other information to assist
in the analysis.
\3\ This is also referred to as the 100-year floodplain or the
base floodplain.
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If the action will occur in a floodplain, the agency must consider
alternatives to avoid adverse effects and incompatible development in
the floodplain. If the agency finds that the only practicable
alternative requires the action to occur in the floodplain, the agency
must, prior to taking the action, design or modify the action in order
to minimize potential harm to or within the floodplain. Additionally,
the agency must prepare and circulate a notice containing an
explanation of why the action is proposed to be located in the
floodplain. Particularly relevant to FEMA, the Executive Order also
requires agencies to provide appropriate guidance to applicants for
grant funding to encourage them to evaluate the effects of their
proposals in floodplains prior to submitting grant applications.
Executive Order 11988 requires agencies to prepare implementing
procedures in consultation with the Water Resources Council (WRC),\4\
FEMA, and the Council on Environmental Quality (CEQ). As noted, in
1978, the WRC issued ``Floodplain Management Guidelines,'' (1978
Guidelines), the authoritative interpretation of Executive Order
11988.\5\ The 1978 Guidelines provided a section-by-section analysis,
defined key terms, and outlined an 8-step decision-making process for
carrying out the directives of Executive Order 11988.
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\4\ The Water Resources Council, established by statute (42
U.S.C. 1962a-1), is charged with maintaining a continuing study and
preparing an assessment biennially, or at such less frequent
intervals as the Council may determine, of the adequacy of supplies
of water necessary to meet the water requirements in each water
resource region in the United States and the national interest
therein; and maintaining a continuing study of the relation of
regional or river basin plans and programs to the requirements of
larger regions of the Nation and of the adequacy of administrative
and statutory means for the coordination of the water and related
land resources policies and programs of the several Federal
agencies. It is responsible for appraising the adequacy of existing
and proposed policies and programs to meet such requirements, and
making recommendations to the President with respect to Federal
policies and programs.
\5\ 43 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines
can be found at this link: https://portal.hud.gov/hudportal/documents/huddoc?id=DOC_14216.pdf.
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B. 44 CFR Part 9, ``Floodplain Management and Protection of Wetlands''
FEMA promulgated regulations implementing Executive Order 11988 at
44 CFR part 9, ``Floodplain Management and Protection of Wetlands.''
\6\ Part 9 closely follows the 1978 Guidelines in setting forth FEMA's
policy and procedures for floodplain management relating to disaster
planning, response and recovery, and hazard mitigation. Part 9 applies
to FEMA disaster and non-disaster assistance programs, including Public
Assistance (PA), Individual Assistance (IA), Hazard Mitigation
Assistance (HMA), and grants processed by FEMA's Grant Programs
Directorate (GPD) (involving grants for preparedness activities).
Pursuant to section 8 of Executive Order 11988, Part 9 does not apply
to assistance provided for emergency work essential to save lives and
protect property and public health and safety, performed pursuant to
sections 403 and 502 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended (42 U.S.C. 5170b and 5192). In
addition, FEMA does not apply Part 9 to non-grant, site-specific
actions under the National Flood Insurance Program (NFIP),\7\ such as
the issuance of individual flood insurance policies, the adjustment of
claims, or the issuance of individual flood insurance maps. FEMA does
not apply Part 9 to site-specific actions under the NFIP because the
establishment of programmatic criteria, rather than the application of
the programmatic criteria to individual situations, is the action with
the potential to influence/affect floodplains.\8\
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\6\ 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.
\7\ A complete list of FEMA programs to which part 9 does not
apply appears at 44 CFR 9.5. The exemption for actions under the
NFIP is located at 44 CFR 9.5(f).
\8\ For example, part 9 requires FEMA to apply the 8-step
process to a programmatic determination of categories of structures
to be insured, but does not require FEMA to apply an 8-step review
to a determination of whether to insure each individual structure.
See 45 FR 59520, Sept. 9, 1980 (59523).
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As noted, Part 9 outlines the 8-step decision-making process FEMA
follows in applying Executive Order 11988 to its actions:
Step (1) Floodplain determination (44 CFR 9.7). Under Step 1, FEMA
must determine if a proposed agency action is located in or affects the
base floodplain (or, for critical actions, the 500-year floodplain).
The base floodplain is the area subject to inundation by the base
flood, which is that flood which has a 1 percent chance of occurrence
in any given year (also known as the 1 percent annual chance flood or
100-year flood). A ``critical action'' is any activity for which even a
slight chance of flooding would be too great.\9\ The minimum floodplain
of concern for critical actions is 500-year floodplain, which is the
area subject to inundation from a flood having a 0.2 percent chance of
occurring in any given year. The 500-year floodplain generally covers a
larger area than the base floodplain. FEMA's regulations state that in
each instance where the 8-step process refers to the base floodplain,
an agency should substitute the 500-year floodplain for the base
floodplain if the proposed action is a critical action.
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\9\ The concept of critical actions evolved during the drafting
of the 1978 Guidelines and reflects a concern that the impacts of
floods on human safety, health, and welfare for many activities
could not be minimized unless a higher degree of protection than the
base flood was provided. See Interagency Task Force on Floodplain
Management, Further Advice on Executive Order 11988 Floodplain
Management (1980) available at https://www.gsa.gov/graphics/pbs/FEDERAL_EMERGENCY_MANAGEMENT_AGENCY_R2F-a8-k_0Z5RDZ-i34K-pR.pdf.
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FEMA follows a specific regulatory sequence in order to make its
floodplain determination. First, FEMA must consult the Flood Insurance
Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and the Flood
Insurance Study (FIS) for the area. A FIRM is an official, detailed map
issued by the NFIP, showing elevations and boundaries of the 1 percent
annual chance floodplain and the 0.2 percent annual chance
floodplain.\10\ The FBFM is a version of a flood map that shows only
the floodway \11\ and flood boundaries. An FIS report is an
examination, evaluation and determination of flood hazards and, if
appropriate, corresponding water surface elevations. If a FIRM is not
available, FEMA must obtain a Flood Hazard Boundary Map (FHBM) which is
a less detailed map than a FIRM and shows the approximate areas of the
base floodplain. If data on flood elevations, floodways, or coastal
high hazard areas are needed, or if the map does not delineate the
flood hazard boundaries in the vicinity of the proposed site, FEMA must
seek detailed information from a list of sources included in the
[[Page 57405]]
regulations. See 44 CFR 9.7(c)(1)(ii). If the sources listed do not
have or know of detailed information and are unable to assist in
determining whether or not the proposed site is in the base floodplain,
FEMA must seek the services of a licensed consulting engineer
experienced in this type of work. If, however, a decision involves an
area or location within extensive Federal or State holdings or a
headwater area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA will
seek information from the land administering agency before seeking
information and/or assistance from the list of sources included in the
regulations. Then, if none of the sources listed has information or can
provide assistance, FEMA will seek the services of an experienced
Federal or other engineer.
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\10\ FEMA estimates that only 18 percent of mapped flood zones
have detailed floodplain boundaries of the 0.2 percent annual chance
floodplain.
\11\ The floodway is the channel of a river or other watercourse
and the adjacent land areas that must be reserved in order to
discharge the base flood without cumulatively increasing the water
surface elevation more than a designated height. See 44 CFR 59.1.
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Step (2) Early public review (44 CFR 9.8). FEMA must make public
its intent to locate a proposed action in the base floodplain. FEMA
must provide adequate information to enable the public to have an
impact on the decision outcome for all proposed actions having
potential to affect, adversely, or be affected by floodplains. For each
action having national significance for which notice is provided, FEMA
uses the Federal Register as the minimum means for notice, and will
provide notice by mail to national organizations reasonably expected to
be interested in the action. 44 CFR 9.8(c)(5) describes the contents of
the public notice, such as a description of the action, the degree of
hazard involved, a map of the area, or other identification of the
floodplain, and identification of the responsible agency official.
Step (3) Practicable alternatives (44 CFR 9.9). If the action is in
the floodplain, FEMA will identify and evaluate practicable
alternatives to carrying out a proposed action in floodplains,
including the following: Alternative sites outside the floodplain;
alternative actions which serve essentially the same purpose as the
proposed action, but which have less potential to affect or be affected
by the floodplain; and ``no action.'' The floodplain site itself must
be a practicable location in light of the other factors. Under 44 CFR
9.9(c), FEMA will analyze several factors in determining the
practicability of the alternatives described in 44 CFR 9.9(b), namely
natural environment, social concerns, economic aspects, and legal
constraints. 44 CFR 9.9(d) states that FEMA will not locate the
proposed action in the floodplain, if a practicable alternative exists
outside the floodplain or wetland. For critical actions, FEMA will not
locate the proposed action in the 500-year floodplain, if a practicable
alternative exists outside the 500-year floodplain. Even if no
practicable alternative exists outside the floodplain, in order to
carry out the action the floodplain or wetland must itself be a
practicable location in light of the review required under Step 3.
Step (4) Impact of chosen alternative (44 CFR 9.10). FEMA must
identify if the action has impacts in the floodplain or directly or
indirectly supports floodplain development that has additional impacts
in the floodplain. If the proposed action is outside the floodplain and
has no identifiable impacts or support, the action can be implemented
(Step 8). 44 CFR 9.10(b) provides that FEMA will identify the potential
direct and indirect adverse impacts associated with the occupancy and
modification of floodplains and the potential direct and indirect
support of floodplain development that could result from the proposed
action. FEMA's identification of such impacts shall be to the extent
necessary to comply with the requirements of Executive Order 11988 to
avoid floodplain locations unless they are the only practicable
alternatives and to minimize harm to and within floodplains and
wetlands.
Step (5) Minimize impacts (44 CFR 9.11). If the proposed action has
identifiable impacts in the base floodplain or directly or indirectly
supports development in the floodplain, FEMA must minimize these
effects and restore and preserve the natural and beneficial floodplain
values served by floodplains. 44 CFR 9.11(b) states generally that FEMA
will design or modify its actions so as to minimize harm to or within
the floodplain; will minimize destruction, loss, or degradation of
wetlands; will restore and preserve natural and beneficial floodplain
values; and will preserve and enhance natural and beneficial wetland
values. Pursuant to 44 CFR 9.11(c), FEMA will more specifically
minimize potential harm to lives and the investment at risk from the
base flood, or, in the case of critical actions, from the 500-year
flood; potential adverse impacts the action may have on others; and
potential adverse impacts the action may have on floodplain values.
Pursuant to 44 CFR 9.11(d), FEMA will not allow new construction or
substantial improvement in a floodway, and will not allow new
construction in a coastal high hazard area, except for a functionally
dependent use \12\ or a structure or facility which facilitates an open
space use. For a structure which is a functionally dependent use, or
which facilitates an open space use, FEMA will not allow construction
of a new or substantially improved structure in a coastal high hazard
area unless it is elevated on adequately anchored pilings or columns,
and securely anchored to such piles or columns so that the lowest
portion of the structural members of the lowest floor (excluding the
pilings or columns) is elevated to or above the base flood level (the
500-year flood level for critical actions) (including wave height).
Regarding elevation of structures, 44 CFR 9.11(d)(3) states that there
will be no new construction or substantial improvement of structures
unless the lowest floor of the structures (including basement) is at or
above the level of the base flood, and there will be no new
construction or substantial improvement of structures involving a
critical action unless the lowest floor of the structure (including the
basement) is at or above the level of the 500-year flood.
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\12\ A functionally dependent use means a use which cannot
perform its intended purpose unless it is located or carried out in
close proximity to water (e.g., bridges and piers). See 44 CFR 9.4.
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Step (6) Reevaluate alternatives (44 CFR 9.9). FEMA must reevaluate
the proposed action. Pursuant to 44 CFR 9.9(e), upon determination of
the impact of the proposed action to or within the floodplain and of
what measures are necessary to comply with the requirement to minimize
harm to and within the floodplains, FEMA will determine whether: the
action is still practicable at a floodplain site in light of the
exposure to flood risk and the ensuing disruption of natural values,
the floodplain site is the only practicable alternative, there is a
potential for limiting the action to increase the practicability of
previously rejected non-floodplain sites and alternative actions, and
minimization of harm to or within the floodplain can be achieved using
all practicable means. Pursuant to 44 CFR 9.9(e)(2), FEMA will take no
action in a floodplain unless the importance of the floodplain site
clearly outweighs the requirement of Executive Order 11988 to avoid
direct or indirect support of floodplain development; reduce the risk
of flood loss; minimize the impact of floods on human safety, health,
and welfare; and restore and preserve floodplain values.
Step (7) Findings and public explanation (44 CFR 9.12). If FEMA
finds that the only practicable alternative is to take the action in
the floodplain, it must give public notice of the reasons for this
finding. 44 CFR
[[Page 57406]]
9.12(e) describes the requirements for the content of such notice, such
as a statement of why the proposed action must be located in an area
affecting or affected by a floodplain or wetland, a description of all
significant facts considered in making this determination,
identification of the responsible official, and a map of the relevant
area.
Step (8) Implementation (Multiple sections of 44 CFR and applicable
program guidance). FEMA may implement the proposed action after it
allows a reasonable period for public response and reviews the
implementation and post-implementation to ensure compliance with the
minimization standards in 44 CFR 9.11. Implementation of the
requirements of Executive Order 11988 is integrated into the specific
regulations and procedures of the grant program under which the action
is proposed to take place. After the proposed action is implemented,
the FEMA program providing the funding determines, under its applicable
regulations and procedures, whether the grant recipient has completed
the prescribed mitigation.
C. Reevaluation of the 1 Percent Chance or 100-Year Flood Standard
In the aftermath of Hurricane Sandy, the President issued Executive
Order 13632,\13\ which created the Federal Interagency Hurricane Sandy
Rebuilding Task Force (Sandy Task Force). The Sandy Task Force was
chaired by the Secretary of the Department of Housing and Urban
Development (HUD), which led the effort in coordination with multiple
Federal partners. The Sandy Task Force was supported by an advisory
group composed of State, local, and Tribal elected leaders. Pursuant to
direction from Executive Order 13632 to remove obstacles to resilient
rebuilding, the Sandy Task Force reevaluated the 1 percent chance/100-
year standard. In April 2013, the Sandy Task Force announced a new
Federal flood risk reduction standard which required elevation or other
flood-proofing to 1 foot above \14\ the best available and most recent
base flood elevation and applied that standard to all Federal disaster
recovery investments in Sandy-affected communities.\15\ The Sandy Task
Force called for all major Sandy rebuilding projects in Sandy-affected
communities using Federal funding to be elevated or otherwise flood-
proofed according to this new flood risk reduction standard.
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\13\ 77 FR 74341, Dec. 14, 2012.
\14\ This is also known as ``freeboard.'' ``Freeboard'' is a
factor of safety usually expressed in feet above a flood level for
purposes of floodplain management. Freeboard tends to compensate for
the many unknown factors that could contribute to flood heights
greater than the height calculated for a selected size flood and
floodway conditions, such as wave action, bridge openings, and the
hydrologic effect of urbanization of the watershed. See
www.fema.gov/freeboard.
\15\ HUD release entitled, ``Federal Government Sets Uniform
Flood Risk Reduction Standard for Sandy Rebuilding Projects,'' April
4, 2013.
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In May 2013, DHS issued the National Mitigation Framework (NMF) to
establish a common platform and forum for coordinating and addressing
how the Nation manages risk through mitigation capabilities.\16\ The
NMF established the Mitigation Framework Leadership Group (MitFLG) to
promote coordination of mitigation efforts across the Federal
Government. Its goal is broader than the goal of the Sandy Task Force,
as it focuses on enabling achievement of a secure and resilient Nation
by developing, employing and coordinating core mitigation capabilities
to reduce the loss of life and property. The MitFLG is responsible for
assessing the effectiveness of mitigation core capabilities as they are
developed and deployed across the Nation. The MitFLG facilitates
information exchange, coordinates policy implementation recommendations
on national-level issues, and oversees the successful implementation of
the NMF. The MitFLG is composed of representatives from the Department
of Agriculture, the Department of Commerce, the Department of Defense,
the Department of Energy, the Environmental Protection Agency, the
General Services Administration, the Department of Health and Human
Services, DHS, HUD, the Department of the Interior, the Department of
Justice, the Small Business Administration, and the Department of
Transportation. FEMA also chairs the MitFLG.\17\
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\16\ Department of Homeland Security, National Mitigation
Framework (2013), available at https://www.fema.gov/media-library-data/20130726-1914-25045-9956/final_national_mitigation_framework_20130501.pdf. Mitigation reduces
the impact of disasters by supporting protection and prevention
activities, easing response, and speeding recovery to create better
prepared and more resilient communities. This Framework describes
mitigation roles across the whole community.
\17\ See National Mitigation Framework, p. 30.
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In June 2013, the President issued a Climate Action Plan \18\ that
directs agencies to take appropriate actions to reduce risk to Federal
investments, specifically directing agencies to build on the work done
by the Sandy Task Force and to update their flood risk reduction
standards for ``federally-funded . . . projects'' to ensure that
``projects funded with taxpayer dollars last as long as intended.''
\19\ In November 2013, the President's State, Local, and Tribal Leaders
Task Force on Climate Preparedness and Resilience (Climate Task Force)
convened, with 26 Governors, mayors, and local and Tribal leaders
serving as members. After a year-long process of receiving input from
State, local, Tribal, and territorial governments; private businesses;
trade associations; academic organizations; civil society; and other
stakeholders, the Task Force provided a recommendation to the President
in November 2014. In order to ensure resiliency, Federal agencies, when
taking actions in and around floodplains, should include considerations
of the effects of climate change, including sea level rise, more
frequent and severe storms, and increasing river flood risks. The
Climate Task Force also recommended that the best available climate
data should be used in siting and designing projects receiving Federal
funding, and that margins of safety, such as freeboard and setbacks,
should be included.\20\
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\18\ Executive Office of the President, The President's Climate
Action Plan (2013), available at https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf.
\19\ See The President's Climate Action Plan at 15.
\20\ President's State, Local, and Tribal Leaders Task Force on
Climate Preparedness and Resilience, Recommendations to the
President, (2014), available at https://www.whitehouse.gov/sites/default/files/docs/task_force_report_0.pdf at 7.
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D. Issuance of Executive Order 13690 and the Federal Flood Risk
Management Standard, and Revision of the 1978 Guidelines
The MitFLG developed the FFRMS reflecting the best available
science, lessons learned, and input and recommendations gathered from
the Sandy Task Force, the Climate Action Plan, and the Climate Task
Force. As a result of MitFLG's efforts, on January 30, 2015, the
President issued Executive Order 13690, ``Establishing a Federal Flood
Risk Management Standard (FFRMS) and a Process for Further Soliciting
and Considering Stakeholder Input.'' \21\ Executive Order 13690 amended
Executive Order 11988 and established the FFRMS. It also set forth a
process by which additional input from stakeholders is solicited and
considered before agencies implement the FFRMS. It required FEMA to
publish, on behalf of the MitFLG, an updated version of the
Implementing Guidelines (revised to incorporate the changes required by
Executive Order 13690 and the FFRMS) in the Federal Register for notice
and comment. After receipt and adjudication of comments, Executive
Order 13690 required the MitFLG to submit to the WRC
[[Page 57407]]
recommendations for finalizing the draft Guidelines. Finally, Executive
Order 13690 required the WRC to issue final Guidelines to provide
guidance to agencies on the implementation of Executive Order 11988, as
amended, consistent with the FFRMS. After the completion of this
process, Executive Order 13690 directs agencies to issue or amend their
existing regulations and procedures to comply with the Order. The
MitFLG is required to reassess the FFRMS annually, after seeking
stakeholder input, and provide recommendations to the WRC to update the
FFRMS if warranted. The WRC is required to update the FFRMS at least
every 5 years.
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\21\ 80 FR 6425 Feb. 4, 2015.
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FEMA, on behalf of MitFLG, published a Federal Register notice for
a 60-day notice and comment period seeking comments on a draft of the
Revised Guidelines on February 5, 2015.\22\ In response to multiple
requests, the MitFLG later extended the comment period for an
additional 30 days to end on May 6, 2015.\23\ Periodically during the
public comment period, the Administration (through FEMA and CEQ) sent
advisories to representatives from Governors' offices nationwide
announcing the issuance of Executive Order 13690 and inviting comments
on the draft Revised Guidelines. The Administration also attended or
hosted over 25 meetings across the country with State, local, and
Tribal officials (including 26 mayors) and interested stakeholders to
discuss Executive Order 13690 and the draft Revised Guidelines. The
MitFLG held 9 public listening sessions across the country \24\ that
were attended by over 700 participants from State, local, and Tribal
governments and other stakeholder organizations to facilitate feedback
on the draft Revised Guidelines. The MitFLG published notice of these
public listening sessions in the Federal Register.\25\
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\22\ 80 FR 6530, Feb. 5, 2015.
\23\ 80 FR 16018, Mar. 26, 2015.
\24\ The meetings were held in Iowa, Mississippi, California,
Virginia (Hampton Roads), Virginia (Fairfax), New York, Texas,
Washington, and via webinar.
\25\ 80 FR 19090, Apr. 9, 2015.
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The public comment period closed on May 6, 2015. The MitFLG
received over 2700 \26\ comments. The MitFLG adjudicated the comments
and presented its recommendations to the WRC, as required by Executive
Order 13690. The WRC issued the final Revised Guidelines on October 8,
2015.\27\ The Revised Guidelines contain an updated version of the
FFRMS (located at Appendix G of the Revised Guidelines), reiterate key
concepts from the 1978 Guidelines, and explain the new concepts
resulting from the Executive Order 13690 and the FFRMS. In response to
public comments, the FFRMS was updated to clarify the distinction
between actions and Federally Funded Projects.
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\26\ The MitFLG received approximately 556 separate submissions,
which raised over 2700 separate issues and positions. Written
comments were received at a series of 8 in-person listening sessions
across the country (135 submissions); verbal comments were shared
during the public comment periods of these same listening sessions
(74 commenters); comments were submitted through the FFRMS email
address (20 submissions); comments were submitted through
regulations.gov (326 submissions); and comments were submitted as
part of a petition of support (1 submission).
\27\ Available in the docket for this rulemaking at
www.regulations.gov under Docket ID FEMA-2015-0006.
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E. Substantive Components of the FFRMS
The FFRMS is a flexible framework to increase resilience against
flooding and help preserve the natural values of floodplains.
Incorporating this standard into existing agency processes will ensure
that agencies expand management from the current base flood level to a
higher vertical elevation and corresponding horizontal floodplain so
that Federally Funded Projects will last as long as intended. In
addition, the FFRMS encourages the use of natural features and nature-
based approaches in the development of alternatives for all Federal
actions.
Under the FFRMS, an agency may establish the floodplain for
Federally Funded Projects using any of the following approaches: (1)
Climate-Informed Science Approach (CISA): Utilizing the best-available,
actionable hydrologic and hydraulic data and methods that integrate
current and future changes in flooding based on climate science; (2)
Freeboard Value Approach (FVA): Freeboard (base flood elevation + X,
where X is 3 feet for critical actions and 2 feet for other actions);
(3) 0.2 percent annual chance Flood Approach (0.2PFA): 0.2 percent
annual chance flood (also known as the 500-year flood); or (4) the
elevation and flood hazard area that result from using any other method
identified in an update to the FFRMS.\28\ Each of the approaches is
described in further detail below.
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\28\ See Executive Order 13690 Section 2(i), 80 FR 6425, Feb. 4,
2015 (6426).
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FFRMS Approach 1: CISA
The FFRMS states that the CISA is the preferred approach, and that
Federal agencies should use this approach when data to support such an
analysis are available. For areas vulnerable to coastal flood hazards,
the CISA includes the regional sea-level rise variability and lifecycle
of the Federal action. This includes use of the Department of
Commerce's National Oceanic and Atmospheric Administration's (NOAA's)
or similar global mean sea-level-rise scenarios. These scenarios would
be adjusted to the local relative sea-level conditions and would be
combined with surge, tide, and wave data using state-of-the-art science
in a manner appropriate to policies, practices, criticality, and
consequences (risk).\29\ 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).
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\29\ The Revised Guidelines expand further upon the methods for
calculating sea-level rise for areas vulnerable to coastal flood
hazards in Section II (C) of Appendix H, ``Climate-Informed Science
Approach and Resources.''
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The CISA for critical actions would utilize the same methodology as
used for non-critical actions that are subject to Executive Order
11988, but with an emphasis on criticality as one of the factors for
agencies to consider when conducting the analysis.
FFRMS Approach 2: FVA
The FFRMS defines freeboard values as an additional 2 feet added to
the base flood elevation, or, for critical actions, an additional 3
feet added to the base flood elevation. In other words, the floodplain
established by the FFRMS-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, as well as a corresponding increase in
the horizontal extent of the floodplain. The increased horizontal
extent will not be the same in every case. As shown in the next two
illustrations, when the same vertical increase is applied in multiple
Federally Funded Projects 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 Federally Funded Project. FFRMS-FVA Illustration A
reflects an area with relatively flat topography on either side of the
flooding source (i.e., river or stream) channel. This is generally
representative of coastal plains, portions of the Midwest, and other
areas with less variation in topography. FFRMS-FVA Illustration B
reflects an area with steep topography on either side of the
[[Page 57408]]
flooding source channel. This is representative of mountainous areas or
areas with changes in elevation near the flooding source. With the same
addition of 2 feet to the base flood elevation applied to both example
locations, the increase to the horizontal extent of the floodplain in
FFRMS-FVA Illustration A is comparatively larger than the increase to
the horizontal extent of the floodplain in FFRMS-FVA Illustration B.
These illustrations visually depict the fact that the horizontal
increase to the floodplain will not be uniform when applying the same
increase to establish the FVA and will vary depending on local
topography.
BILLING CODE 9111-66-P
[GRAPHIC] [TIFF OMITTED] TP22AU16.011
[[Page 57409]]
[GRAPHIC] [TIFF OMITTED] TP22AU16.012
BILLING CODE 9111-66-C
FFRMS Approach 3: 0.2PFA
Agencies may use available 0.2 percent annual chance (or ``500-
year'') flood data as the basis of the FFRMS elevation and
corresponding floodplain extent. The FFRMS notes that the 0.2 percent
annual chance flood hazard data produced by FEMA in coastal areas only
considers storm-surge hazards; these data do not include local wave
action or storm-induced erosion that are considered in the computation
of base flood elevations. The FFRMS encourages 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 for the proposed investment.
FFRMS Approach 4: Update to FFRMS
Executive Order 13690 requires the MitFLG to reassess the FFRMS
annually, after seeking stakeholder input, and provide recommendations
to the WRC to update the FFRMS if
[[Page 57410]]
warranted. It requires the WRC to update the FFRMS at least every 5
years.
Further Guidance on Application of the FFRMS Approaches To Establishing
the Floodplain
The FFRMS states that when an agency does not use CISA in a coastal
flood hazard area, the agency must use, at a minimum, the applicable
FVA (i.e., the base flood elevation plus 3 feet for critical actions,
or the base flood elevation plus 2 feet for other actions). In cases
where the FEMA 0.2 percent annual chance flood elevation does not
include wave height, or a wave height has not been determined, the
FFRMS notes that the result will likely either be lower than the
current base flood elevation or the base flood elevation plus
applicable freeboard. The FFRMS states that the 0.2 percent annual
chance elevation should not be used in these cases.
When actionable science is not available and an agency opts not to
follow the CISA for riverine flood hazard areas, the FFRMS states that
an agency may also select either the FVA, or 0.2 percent annual chance
flood elevation approach, or a combination of approaches, as
appropriate. It states that the agency is not required to use the
higher of the elevations, but may opt to do so.
F. FEMA's Implementation of Executive Order 13690 and FFRMS
When Executive Order 13690 was issued, FEMA evaluated the
application of Executive Order 13690 and the FFRMS with respect to its
existing authorities and programs. The FFRMS establishes a flexible
standard to improve resilience against the impact of flooding--to
design for the intended life of the Federal investment. FEMA supports
this principle. With more than $260 billion in flood damages across the
Nation since 1980, it is necessary to take action to responsibly use
Federal funds, and FEMA must ensure it does not needlessly make
repeated Federal investments in the same structures after flooding
events. In addition, the FFRMS will help support the thousands of
communities across the Country that have strengthened their State and
local floodplain management codes and standards to ensure that
infrastructure and other community assets are resilient to flood risk.
FEMA recognizes that the need to make structures resilient also
requires a flexible approach to adapt for the needs of the Federal
agency, local community, and the circumstances surrounding each project
or action.
FEMA intends to implement Executive Order 13690, the FFRMS, and the
Revised Guidelines through this proposed rule and supplementary policy,
which would (1) add or revise definitions to be consistent with those
included in Executive Order 13690 and the Revised Guidelines; (2)
incorporate the use of the FFRMS approaches for establishing the
floodplain into FEMA's existing 8-step process; and (3) include the
requirement to consider the use of nature-based approaches where
possible when developing alternatives for developing in the floodplain.
Making the Initial Floodplain Determination
As stated above, Executive Order 13690 and the FFRMS changed the
definition of ``floodplain'' with respect to ``Federally Funded
Projects'' (i.e., actions involving the use of Federal funds for new
construction, substantial improvement, or to address substantial damage
to a structure or facility). The FFRMS allows the agency to define
``floodplain'' using any of three approaches. For actions which do not
meet the definition of a Federally Funded Project, an agency should
continue to use the historical definition of floodplain, i.e. the area
subject to a 1 percent or greater chance of flooding in any given year
(or the area subject to a 0.2 percent annual chance of flooding in any
given year for critical actions). This means that one of the first
steps an agency must take is to determine whether to use the FFRMS
definition of the floodplain or the historical definition of the
floodplain. Figure 1 illustrates the process by which FEMA would decide
which floodplain would apply to an action or FEMA Federally Funded
Project.
[GRAPHIC] [TIFF OMITTED] TP22AU16.013
[[Page 57411]]
Selection Between the FFRMS Approaches
Executive Order 13690 requires the MitFLG to reassess the FFRMS
annually, after seeking stakeholder input, and provide recommendations
to the WRC to update the standard if warranted based on accurate and
actionable science that takes into account changes to climate and other
changes in flood risk. At a minimum, Executive Order 13690 requires an
update to the FFRMS at least every 5 years.\30\ This requires a
balancing approach in selecting between the FFRMS approaches: Agencies
must be flexible enough to account for updates to the FFRMS and yet
also implement a framework that is standardized enough to be easily
understood by and consistently applied to stakeholders.
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\30\ See Executive Order 13690 Section 4(b), 80 FR 6425, Feb. 4,
2015 (6426).
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Consistent with the flexibility built into Executive Order 13690,
FEMA proposes to implement the FFRMS by adopting the flexible framework
proposed in Executive Order 13690 in its entirety instead of mandating
a particular approach in its regulations. Under this proposal, FEMA
would provide additional guidance (more readily capable of revisions
and updates) that addresses which approach FEMA would use for different
types of actions and how FEMA would tailor its application of the
various approaches depending on the type and criticality of the action.
Specifically, FEMA's supplementary policy selects the use of the FFRMS-
FVA to establish the floodplain for non-critical actions. For critical
actions, FEMA would allow the use of the FFRMS-FVA floodplain or the
FFRMS-CISA, but only if the elevation established under the FFRMS-CISA
is higher than the elevation established under the FFRMS-FVA.
FEMA proposes to use the FFRMS-FVA as the baseline approach for
both critical and non-critical FEMA Federally Funded Projects for
several reasons. First, a choice to use the FFRMS-FVA would reflect the
practical need for standardization at this stage of implementation. The
FFRMS-FVA elevation is computed using the 1 percent annual chance
elevation, and FEMA may use the same historical sequence it has
followed to determine the 1 percent annual chance elevation for the
purposes of establishing the FFRMS-FVA elevation. This would still
allow for the use of widely available FEMA products such as FIRMs,
FBFMs, and FISs. By following the same historical sequence and
utilizing known mapping products, FEMA staff would need relatively
minimal additional training to be able to use these products to
determine the horizontal extent of the FFRMS-FVA floodplain. In
addition, the familiarity of the process and products to be used in
most projects would benefit stakeholders by providing a consistent
methodology which stakeholders would similarly be able to use to
determine where FEMA will require application of the FFRMS. Second,
requiring the use of the FFRMS-FVA as the minimum elevation for
critical actions would be consistent with FEMA's policy to encourage
communities to adopt higher standards, including freeboard standards,
than the minimum floodplain management criteria under the NFIP.\31\
Generally, adoption of a freeboard tends to compensate for the many
unknown factors that could contribute to flood heights greater than the
height calculated for a selected size flood and floodway conditions,
such as wave action, bridge openings, and the hydrological effect of
urbanization of the watershed.\32\ Consistent with FEMA's policy, 22
States and an additional 596 localities have adopted freeboard
requirements ranging from 1 to 3 feet.\33\ FEMA supports that adoption
by requiring that all of its projects are consistent with more
restrictive Federal, State, or local floodplain management
standards.\34\
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\31\ See 44 CFR 60.1(d).
\32\ See 44 CFR 59.1.
\33\ Association of State Floodplain Managers, States and Other
Communities in FEMA CRS with Building Freeboard Requirements,
(2015), available at https://www.floods.org/ace-files/documentlibrary/FloodRiskMngmtStandard/States_with_freeboard_and_CRS_Communities_with_Freeboard_in_Other_states_2-27-15.pdf.
\34\ See 44 CFR 9.11(d)(6).
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FEMA considered proposing the use of the FFRMS-CISA instead of
FFRMS-FVA to reflect the FFRMS's designation of the FFRMS-CISA as the
preferred approach and to reflect that the FFRMS-FVA sets a general
level of protection, whereas FFRMS-CISA uses a more site-specific
approach to predict flood risk based on future conditions.
However, there are several reasons why that course of action is not
appropriate at this time. First, actionable climate data are not
currently available for all locations. For coastal floodplains, one of
the primary considerations associated with the FFRMS-CISA is
determining what the projected future sea level rise will be for the
area in which the project will be completed. There are multiple
interagency reports, published scientific journals, and agency tools
that provide scenario-based projections of sea level rise for coastal
floodplains. However, FEMA is not aware of an analogous approach for
riverine floodplains that accounts for uncertainties due to climate
change with respect to projected future precipitation and associated
flooding.\35\ Instead, the Revised Guidelines suggest the agency would
need to conduct a hydrology study that is informed by expected changes
in climate and land use factors and incorporate this analysis into its
current method for determining the floodplain.\36\ FEMA expects that
more data will be developed supporting broader-based inland and
riverine application of the FFRMS-CISA as agencies implement the FFRMS
and that this data will be considered and incorporated into future
updates of the FFRMS. FEMA requests comment on the availability of
actionable, planning, and project-scale climate data with respect to
coastal and riverine floodplains.
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\35\ See Revised Guidelines at Appendix H, 15.
\36\ See Revised Guidelines at 55.
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Second, in addition to the data challenges, there are a number of
factors to be considered in deciding how to apply the FFRMS-CISA that
might result in a decision-making process that could unnecessarily
delay recovery in the wake of a disaster event for non-critical
actions. The Revised Guidelines recommend that the FFRMS-CISA
methodology account for project-specific factors such as the risk to
which the action will be exposed, the anticipated level of investment,
and the lifecycle of the action.\37\ For example, an applicant might
consider a construction project that is in a coastal floodplain and
find that there are multiple projections for what the sea level rise
may be in 100 years. The most aggressive projection might indicate that
the project should be elevated 10 feet above the 1 percent annual
chance flood elevation. However, the applicant might decide that this
project is not intended to be functional for 100 years or that the
applicant's budget might justify using a lesser projection now and plan
for future upgrades to the structure or facility. There may be a way to
standardize this type of decision-making process as the FFRMS-CISA is
more broadly used; however, the current lack of a standardized
methodology for making these decisions and the need to engage in such
project-specific considerations in conjunction with stakeholders could
result in uncertainty and delay. In light of the above concerns, FEMA
requests comment regarding how FEMA could implement
[[Page 57412]]
the FFRMS-CISA for non-critical actions using a publicly-accessible,
standardized, predictable, flexible, and cost-effective methodology.
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\37\ See Revised Guidelines at 55.
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FEMA also considered whether it should alter its proposal for use
of the FFRMS-CISA in relation to the FFRMS-FVA (or FFRMS-0.2PFA). FEMA
specifically welcomes comment on each of the potential alternatives
outlined below. FEMA could choose a more protective approach in which
it would determine the elevations established under FFRMS-CISA, FFRMS-
FVA and the FFRMS-0.2PFA for critical actions and only allow the
applicant to use the highest of the three elevations. This approach
would ensure that applicants were building to the most protective
level, would avoid potential inconsistencies with FEMA's policy to
encourage adoption of freeboard standards by local communities, and
would prevent a scenario where an applicant was allowed to build to a
lower elevation than previously required for critical actions under
FEMA's implementation of Executive Order 11988.\38\ FEMA believes that
its proposed policy is sufficiently protective and would be less
expensive to administer and implement than the alternative approach
described above, but nonetheless welcomes comment on this alternative
approach.
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\38\ There may be some areas of the country where application of
the FFRMS-CISA and the FFRMS-FVA could result in a lower elevation
than the FFRMS-0.2PFA which under existing regulations is the
elevation requirement for critical actions.
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Also alternatively, FEMA could choose to allow use of the FFRMS-
CISA, even if the resulting elevation is lower than the application of
the FFRMS-FVA. This approach would give FEMA and its grantees more
flexibility in implementing the standard, would enable FEMA and its
grantees to build to an elevation based on the best available science
taking criticality into account, and would provide a pathway to relief
for those areas that experience declining flood risks.\39\ FEMA
believes that the need for standardization, administrability, and
adequate protection all counsel in favor of its policy, but welcomes
comments on this alternative approach as well.
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\39\ While FEMA believes that the average flood risk will
generally continue to increase nationwide due to climate change,
there is considerable uncertainty in projecting flood risk at more
granular levels. Some areas may experience declines in flood risk
due to reduced rainfall or other unpredictable changes to the
floodplain.
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FEMA is not proposing to use the FFRMS-0.2PFA because of the
limited national availability of information on the 0.2 percent annual
chance flood elevation and the additional costs associated with
producing this information when not available. The FFRMS-0.2PFA
floodplain, like the FFRMS-FVA floodplain, would have a greater
horizontal extent and require higher elevation standards when compared
to the 1 percent annual chance floodplain. However, while most areas of
the country have 1 percent annual chance floodplain information and the
necessary topographical information to determine the horizontal extent
under the FVA, far fewer are mapped with 0.2 percent annual chance
floodplain information. This is because although all FEMA-mapped flood
zones have either detailed or approximate 1 percent annual chance
floodplain boundaries, FEMA estimates that only 18 percent of mapped
flood zones have detailed floodplain boundaries of the 0.2 percent
annual chance floodplain.\40\ Finally, in coastal areas, the FFRMS
requires Federal agencies to use the FFRMS-FVA as the minimum
elevation, when not using the FFRMS-CISA, because the 0.2 percent
annual chance flood information depicted on FEMA FIRMs and in the FISs
in coastal areas consider storm-surge hazards, but not wave action.\41\
FEMA recognizes that the FFRMS-0.2PFA may result in a higher elevation
than the FFRMS-FVA in some circumstances. However, based on the
foregoing reasons, FEMA expects it will be clearer, less costly, and
provide more certainty to stakeholders, if FEMA selects the FFRMS-FVA
as the primary approach.
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\40\ FEMA riverine flood hazard data inventory information comes
from the Coordinated Needs Management Strategy dataset.
\41\ See Revised Guidelines at 57.
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Based on the foregoing reasons, FEMA proposes to combine approaches
and use the FFRMS-FVA to establish the floodplain for non-critical
actions and allow the use of the FFRMS-FVA floodplain or the FFRMS-CISA
for critical actions, but only if the elevation established under the
FFRMS-CISA is higher than the elevation established under the FFRMS-
FVA. This proposal balances flexibility with standardization, is
consistent with FEMA's encouragement to communities to adopt higher
floodplain management standards, reflects the priority that FEMA places
on ensuring adequate planning for critical actions, and may yield
important lessons with respect to potential future applications of the
FFRMS-CISA.
In addition to seeking comments on FEMA's proposed approach to
implementation generally, FEMA specifically seeks public comments on
the impact of the proposed elevation requirement on the accessibility
of covered facilities under the Fair Housing Act, the Americans with
Disabilities Act (ADA), the Architectural Barriers Act (ABA), and
Section 504 of the Rehabilitation Act of 1973. Elevating buildings as a
flood damage mitigation strategy will likely have a negative impact on
affected communities' disabled and elderly populations, unless those
buildings are made accessible. Although all ADA title II and III
facilities, ABA facilities, and Section 504 covered facilities are
subject to accessibility requirements, single-family properties are
generally not subject to accessibility requirements unless they are
public housing (ADA title II) or a social service establishment (ADA
title III). Consequently, even if the homes of people with disabilities
are made accessible, a community's single- and multi-family housing
stock may become largely inaccessible through elevation requirements.
If the only accessible homes in a community are those currently
occupied by people with disabilities, those people will likely be
isolated. As occupants age or become disabled, they may have no option
to remain in their homes or to age in place because adding an
accessible route into an existing single- or multi-family building will
be costly or impossible. It is therefore crucial for community
sustainability and integration of people with disabilities that those
buildings that are subject to accessibility requirements be made to
comply.
In light of the substantial community impact of elevating housing
and other buildings, along with the challenges associated with the
traditional options for making elevated buildings accessible (i.e.,
elevators, lifts, and ramps), FEMA invites comments on strategies it
could employ to increase the accessibility of properties so affected in
the event the proposed increase in elevation is adopted. Additionally,
FEMA invites comments on the cost and benefits of such strategies,
including data that supports the costs and benefits.
Determining the Corresponding Horizontal Extent of the FFRMS Floodplain
Once an agency has made the determination that an action is a
Federally Funded Project that requires use of the FFRMS floodplain, and
then made a determination which of the FFRMS approaches to apply, the
agency must then decide where the FFRMS floodplain lies. There are no
federally produced maps depicting the boundary of the FFRMS-floodplain
established by the FVA or CISA, and FEMA maps depicting the 0.2 percent
annual
[[Page 57413]]
floodplain are only available in some areas. However, a map of the
FFRMS floodplain is not required to determine if the location of a
proposed Federally Funded Project is within the FFRMS floodplain. The
floodplain determination can generally be made by comparing the ground
elevation at the proposed site to the elevation established using the
applicable FFRMS approach. If the ground elevation is less than the
FFRMS elevation, than the site is in the FFRMS floodplain. Therefore,
in order to complete the floodplain determination, FEMA intends to rely
on two-dimensional information on a map to determine the location of
the proposed site relative to the FFRMS floodplain. To do so, FEMA will
need point information on (1) the FFRMS elevation and (2) the ground
elevation of the proposed site. Once FEMA establishes the FFRMS
elevation and the ground elevation based on available information, FEMA
would compare the two values to determine if the proposed FEMA
Federally Funded Project location is in the FFRMS floodplain.
Establishing the FFRMS Elevation Under Each of the Approaches
In order to make the floodplain determination and establish the
proper elevation under each approach, FEMA intends to leverage its
existing processes in each of its grant programs for ensuring
compliance with Executive Order 11988. Although the specifics of the
processes may vary somewhat from program to program, FEMA generally
uses the following steps. During the initial stages of project
development, FEMA informs applicants of all applicable Federal, State
and local requirements which might apply to their projects to include
Executive Order 11988 and the 8-step process. Once applicants have
identified potential projects, FEMA works with them to assess the
proposed project location and determine whether it is in the floodplain
and therefore whether it is necessary to apply the 8-step process. FEMA
is available to assist applicants with the 8-step process and FEMA
reviews the project application to ensure that the project scope of
work is in compliance with Executive Order 11988 requirements. FEMA
will continue to perform these steps in its implementation of Executive
Order 13690 and the FFRMS. When making the floodplain determination
under the FFRMS, FEMA intends to investigate what flood information is
available in order to select the best available information.\42\ FEMA
would rely on a range of available data to establish the FFRMS
elevation for each of the approaches.
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\42\ See Sec. 9.7(c)(1)(iii) of this proposed rule.
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The FFRMS-CISA elevation is established using the best available,
actionable climate-informed science. The Revised Guidelines provide
guidance to agencies on the application of the CISA approach in coastal
and riverine areas.\43\ In particular, FEMA will use Appendix H of the
Revised Guidelines titled ``Climate-Informed Science Approach and
Resources'' to guide its decision-making. Appendix H outlines guidance
on risk-based framing (i.e., how agencies may consider current and
future flood risks over the lifetime of the investment/project)
followed by specific considerations and methods to consider climate
change. Because the CISA uses a scenario-based analysis to establish an
elevation by assessing a range of possible future conditions and
considering the nature of the affected action, the anticipated
lifecycle of the action, and the tolerance for risk associated with the
action, use of the CISA would be based on project-specific decisions.
FEMA may consider information presented by the applicant or any other
Federal agency in this evaluation and will ultimately determine whether
the methodology is appropriate for the action being considered and
meets the relevant criteria.
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\43\ See the Revised Guidelines at Appendix H ``Climate-Informed
Science Approach and Resources.''
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FEMA recognizes that the FFRMS-CISA is a new and developing process
and that there is uncertainty in the considerations and factors that
will come up during an FFRMS-CISA analysis. As such, FEMA is not able
to develop an exhaustive set of regulatory criteria for determining
whether a given methodology or elevation is appropriate. However, FEMA
recognizes that regulatory transparency reduces uncertainty for its
grantees, and it will consider providing further guidance and
information in the future as the agency's experience in implementing
FFRMS-CISA grows.
Appendix H of the Revised Guidelines provides the following
criteria to define the CISA, which FEMA will consider when developing
further guidance and information: (1) Uses existing sound science and
engineering methods (e.g., hydrologic and hydraulic analysis and
methodologies) as have historically been used to implement Executive
Order 11988, but supplemented with best available climate-related
scientific information when appropriate (depending on the agency-
specific procedures and type of federal action); (2) is consistent with
the climate science and related information found in the latest
National Climate Assessment report or other best-available, actionable
science; (3) combines information from different disciplines (e.g., new
perspectives from the atmospheric sciences, oceanographic sciences,
coastal sciences, and hydrologic sciences in the context of climate
change) in addition to traditional science and engineering approaches;
and, (4) includes impacts from projected land cover and land use
changes (which may alter hydrology due to increased impervious
surface), long-term coastal and/or riverine erosion, and vertical land
movement (for determining local changes to sea level) expected over the
lifecycle of the action.
The FFRMS describes the FFRMS-FVA elevation as the addition of 2 or
3 feet to the 1 percent annual chance flood elevation. FEMA would
leverage the process described in 44 CFR 9.7(c)(1)(iii) to search for
the best available flood hazard information to establish the 1 percent
annual chance flood elevation. This process recognizes that information
on flood hazards at proposed sites may range from detailed data
obtained from FEMA flood studies, to information which approximates the
geographic area of the floodplain, to areas with no information. Where
FEMA has issued a detailed study, FEMA could obtain the 1 percent
annual chance flood elevation from the FIRM or FIS. In areas where FEMA
has issued a limited study, FEMA would then seek detailed information
from the list of sources in 44 CFR 9.7(c)(1)(iii)(B)(1)-(8).
For example, where an effective FIRM displays a 1 percent annual
floodplain with limited detail, local sources such as a Floodplain
Administrator, Flood Control Districts, or Transportation departments
may have detailed information on file which was produced for
development within the floodplain, for watershed plans, or for
infrastructure designs. Where detailed information is not available
from FEMA studies or other sources, but approximate flood information
is available from a FEMA FIRM, FEMA may use simplified methods to
develop a 1 percent annual chance flood elevation as presented in FEMA
publication 265, entitled ``Managing Floodplain Development in
Approximate A zones: A Guide for Obtaining and Developing Base (100-
Year) Flood Elevations.'' \44\ A 1 percent
[[Page 57414]]
annual chance flood elevation developed using a simplified approach may
yield an acceptable level of accuracy for the purpose of establishing
whether a proposed FEMA Federally Funded Project is within the FFRMS-
FVA floodplain. Where no flood hazard information is available, or
where more accurate information on the 1 percent annual chance
elevation is necessary for the purposes of complying with other
sections of Part 9, such as Sec. 9.11, FEMA publication 265 also
provides guidance on detailed engineering methodologies to develop a 1
percent annual chance flood elevation. FEMA may rely on staff engineers
to complete the engineering analysis, or FEMA may rely on information
submitted as part of an application, where the applicant has obtained
design and engineering services to develop the project scope of work.
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\44\ FEMA, Managing Floodplain Development in Approximate Zone
A: A Guide for Obtaining and Developing Base (100-Year) Flood
Elevations (1995), available at https://www.fema.gov/media-library/assets/documents/1911.
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The FFRMS-0.2PFA elevation is the elevation of the 0.2 percent
annual chance flood. If FEMA were to use this approach in the future,
FEMA could follow the same process to establish the 0.2 percent annual
chance flood elevation as it would to establish the 1 percent annual
chance flood elevation. FEMA would first rely on the 0.2 percent annual
chance flood elevation reported in a FEMA FIS, then seek information
from additional sources, before finally seeking the assistance of an
engineer.
Establishing the Ground Elevation
FEMA may use available topographic information from the USGS to
establish the ground elevation for a proposed location of a FEMA
Federally Funded Project. Additionally, FEMA may also rely on
information on the ground elevation submitted by an applicant as part
of their project application.
IV. Discussion of the Proposed Rule
As noted above, this proposed rule would implement Executive Order
13690, the FFRMS, and the Revised Guidelines as part of FEMA's
floodplain management regulations. Below, we provide a brief summary of
a number of the major provisions of the proposed rule, followed by a
section-by-section description of these and other changes.
Major Provisions
Conforming Changes to Definitions
FEMA proposes to amend Sec. 9.4 to reflect the new definitions
required by Executive Order 13690 and the FFRMS. As noted above, the
most significant definitional change introduced by Executive Order
13690 and the FFRMS is the change to the meaning of ``floodplain.'' As
discussed in more detail below, in order to harmonize this change in
Sec. 9.4 FEMA proposes to revise a number of existing definitions, and
remove other definitions. In addition, FEMA proposes to revise the
remaining sections of 44 CFR part 9 that refer generally to the
floodplain, or refer specifically to the base (or 100-year) floodplain
or the 500-year floodplain, for clarity.
Distinction Between ``FEMA Federally Funded Projects'' and Other FEMA
Actions
As noted above, the first Step in the 8-step process is to
determine whether the proposed action is in the floodplain. Because
Executive Order 13690 and the October 8, 2015 version of FFRMS revise
the definition of the ``floodplain'' that must be used for ``Federally
Funded Projects,'' FEMA proposes to revise the first Step to require
FEMA to first determine whether the proposed action falls within the
definition of ``FEMA Federally Funded Project.'' Under the proposed
rule, if FEMA determines that the action is a FEMA Federally Funded
Project, i.e., if FEMA determines that the action uses FEMA funds for
new construction, substantial improvement, or to address substantial
damage to a structure or facility, the FFRMS floodplain applies. If, on
the other hand, FEMA determines that the action does not fall under the
definition of a FEMA Federally Funded Project, the 1 percent annual
chance floodplain (or the 0.2 percent annual chance floodplain for
critical actions) applies.
Emphasis on Nature-Based Approaches
Executive Order 13690 requires that agencies use, where possible,
natural systems, ecosystem processes, and nature-based approaches in
the development of alternatives for Federal actions in the floodplain.
FEMA proposes to incorporate this requirement into Sec. 9.9, which
addresses the requirement to consider practicable alternatives when
determining whether to locate an action in the floodplain. This
requirement applies regardless of whether the proposed action is a FEMA
Federally Funded Project. To further explain this requirement, FEMA
proposes to add a definition of ``nature-based approaches,'' meaning
features designed to mimic natural processes and provide specific
services such as reducing flood risk and/or improving water quality.
Section-by-Section Analysis
A. Authority Citation
FEMA proposes to add a reference to Executive Order 13690.
B. Section 9.1--Purpose of Part
FEMA proposes to add ``as amended'' to reflect Executive Order
13690's amendment of Executive Order 11988.
C. Section 9.2--Policy
FEMA proposes to add language to paragraph 9.2(b)(3) to reflect the
policy statement from Executive Order 13690 that the United States must
improve the resilience of communities and Federal assets against the
impacts of flooding based on the best-available and actionable science.
This statement of policy is complementary to the longstanding goals of
Executive Order 11988 to reduce the risk of flood loss, but reflects an
updated Federal policy of resilience and risk reduction that takes the
effects of climate change and other threats into account.
D. Section 9.3--Authority
FEMA proposes to add reference to Executive Order 13690, which
amended Executive Order 11988.
E. Section 9.4--Definitions
In Section 9.4, FEMA proposes to add terms for ``0.2 Percent Annual
Chance Flood,'' ``0.2 Percent Annual Chance Floodplain,'' ``1 Percent
Annual Chance Flood or Base Flood,'' ``1 Percent Annual Chance Flood
Elevation or Base Flood Elevation,'' ``1 Percent Annual Chance
Floodplain or Base Floodplain,'' ``Associate Administrator,''
``Emergency Work,'' ``Federal Flood Risk Management Standard (FFRMS),''
``Federal Flood Risk Management Standard Floodplain,'' ``FEMA Federally
Funded Project,'' FIMA, and ``Nature-Based Approaches;'' to remove the
definitions of ``Base Flood,'' ``Base Floodplain,'' ``Emergency
Actions,'' ``Five Hundred Year Floodplain,'' and ``Mitigation
Directorate;'' and to revise the definitions of ``Critical Action,''
``Floodplain,'' ``New Construction,'' ``Orders,'' and ``Substantial
Improvement.''
0.2 Percent Annual Chance Flood. FEMA proposes to define the term
``0.2 percent annual chance flood'' to mean the flood which has a 0.2
percent chance of being equaled or exceeded in any given year. This was
previously known as the ``500-year flood.'' FEMA proposes to use the
term ``0.2 percent annual chance flood'' and discontinue using that
term interchangeably with the term ``500-year flood.'' The term ``500-
year flood'' can cause confusion as it
[[Page 57415]]
could be interpreted to mean that the area will only flood once every
500 years, instead of reflecting its true meaning, which is the annual
risk of flooding in the area.
0.2 Percent Annual Chance Floodplain. FEMA proposes to define the
term ``0.2 percent annual chance floodplain'' to mean the area subject
to flooding by the 0.2 percent annual chance flood.
1 Percent Annual Chance Flood or Base Flood. FEMA proposes to
retitle the current definition of ``base flood'' as ``1 percent annual
chance flood or base flood.'' This reflects the fact that Executive
Order 13690 uses the term ``base flood'' and the Revised Guidelines use
the term ``1 percent annual chance flood.'' There is no substantive
difference between the two terms and they may be used interchangeably.
The ``1 percent annual chance flood'' means the flood that has a 1
percent chance of being equaled or exceeded in any given year. In the
current definition of ``base flood,'' the term is also equated with the
``100-year flood;'' however, FEMA proposes to discontinue use of the
term ``100-year flood'' because this term can cause confusion. It can
be interpreted to mean that the area will only flood once every 100
years instead of reflecting its true meaning, which is the annual risk
of flood in the area.
1 Percent Annual Chance Flood Elevation or Base Flood Elevation.
FEMA proposes to define the term ``1 percent annual chance flood
elevation or base flood elevation'' to mean the computed elevation to
which floodwater is anticipated to rise during the 1 percent annual
chance flood or base flood. FEMA also proposes to incorporate the
explanation from the current definition of ``base flood'' about how the
term is used in the NFIP to indicate the minimum level of flooding to
be used by a community in the community's floodplain management
regulations. The elevation indicates how high to elevate a structure in
order to protect it from the risk of flooding in a base flood.
1 Percent Annual Chance Floodplain or Base Floodplain. FEMA
proposes to define the term ``1 percent annual chance floodplain or
base floodplain'' to mean the area subject to flooding by the 1 percent
annual chance flood or base flood. A floodplain is generally a lowland
or flat area near water that has a greater chance of flooding than
higher areas and areas farther from water. This definition would
describe the minimum area that FEMA looks at when it determines whether
an action will take place in a floodplain.
Associate Administrator. FEMA proposes to define ``Associate
Administrator'' as the Associate Administrator of the Federal Insurance
and Mitigation Administration. This reflects the current title of this
position, and adding it to the definitions section allows for ease of
use throughout Part 9, rather than having to reprint the entire title
each time it is used.
Base Flood and Base Floodplain. FEMA proposes to remove the
definitions of the ``base flood'' and ``base floodplain'' as FEMA
proposes to incorporate them in the definitions of the ``1 percent
annual chance flood or base flood'' and ``1 percent annual chance
floodplain or base floodplain.''
Critical Action. FEMA proposes to revise the definition of
``critical action'' to remove the requirement that the minimum
floodplain of concern in the event of a critical action is the 500-year
floodplain. There would no longer be a set requirement that an
applicant use a particular approach to establishing the floodplain when
the project is a critical action. Instead, FEMA and the applicant would
follow the sequence described in Sec. 9.7 when making the floodplain
determination. FEMA would be required to determine whether the project
meets the new definition of ``FEMA Federally Funded Project'' in Sec.
9.4. If the project is a Federally Funded Project, then FEMA would
establish the floodplain by using one of the FFRMS approaches (which
require the applicant to consider whether an action is a critical
action). If the project is not a Federally Funded Project, then FEMA
would use, at a minimum, the 1 percent annual chance floodplain for
non-critical actions and the 0.2 percent annual chance floodplain for
critical actions.
Emergency Work. The current definition of ``emergency actions'' is
emergency work essential to save lives and protect property and public
health and safety performed under certain sections of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)
and corresponding FEMA regulations. FEMA proposes to change the term to
``emergency work'' to clearly differentiate between the work under the
specific sections of the Stafford Act that was exempted entirely from
the requirements of Executive Order 11988 and the new exceptions to the
application of the FFRMS (which include non-specific references to
emergency actions) created by Executive Order 13690. FEMA also proposes
to update the citations to the specific sections of the Stafford Act
and FEMA regulations, as the citations are outdated in the current
definition.
Federal Flood Risk Management Standard (FFRMS). FEMA proposes to
add a definition of ``FFRMS,'' which is the Federal flood risk
management standard established by Executive Order 13690 to be
incorporated into existing processes used to implement Executive Order
11988. FEMA proposes to add a definition for FFRMS because this rule
proposes to implement it and therefore refers to it throughout the
proposed changes to Part 9.
Federal Flood Risk Management Standard (FFRMS) Floodplain. FEMA
proposes to define the ``FFRMS floodplain'' consistent with the
definition in Executive Order 13690, which is the floodplain that is
established using one of four approaches: CISA, FVA, 0.2PFA, and the
elevation and flood hazard area that result from using any other method
identified in an update to the FFRMS.
FEMA proposes to define the ``CISA'' as the elevation and flood
hazard area that result from using the best-available, actionable
hydrologic and hydraulic data and methods that integrate current and
future changes in flooding based on climate science. This approach will
also include an emphasis on whether the action is a critical action as
one of the factors to be considered when conducting the analysis.
FEMA proposes to define the ``FVA'' as the elevation and flood
hazard area (the horizontal extent of the floodplain) that result from
using the freeboard value, reached by adding an additional 2 feet to
the base flood elevation for non-critical actions and by adding an
additional 3 feet to the base flood elevation for critical actions.
FEMA proposes to define the ``0.2PFA'' as the area subject to
flooding by the 0.2 percent annual chance flood. The 0.2 percent annual
chance flood is a flood that has a 0.2 percent chance of happening in
any given year. It is a flood that covers greater area that is less
frequent than the 1 percent chance floodplain.
Finally, FEMA proposes to add a fourth approach, the elevation and
flood hazard area that result from using any other method identified in
an update to the FFRMS.
FEMA Federally Funded Project. FEMA proposes to add a definition of
``FEMA Federally Funded Project'' to mean actions where FEMA funds are
used for new construction, substantial improvement, or to address
substantial damage to a structure or facility. FEMA's proposed
definition mirrors the language in the FFRMS and the Revised
Guidelines.
[[Page 57416]]
FIMA. FEMA proposes to revise the definition of the Federal
Insurance Administration to mean the Federal Insurance and Mitigation
Administration to reflect the current title of the organization.
Five Hundred Year Floodplain. FEMA proposes to remove the
definition of the five hundred year floodplain as a standalone term and
designated floodplain and to instead substitute the term to 0.2 percent
annual chance floodplain. The 0.2 percent annual chance floodplain is
the floodplain covering an area where the chance of flood is 0.2
percent in any given year.
Floodplain. FEMA currently defines ``floodplain'' as the lowland
and relatively flat areas adjoining inland and coastal waters
including, at a minimum, that area subject to a 1 percent or greater
chance of flooding in any given year. FEMA proposes to revise the
definition to remove the phrase ``including, at a minimum, the area
subject to a one percent or greater chance of flooding in any given
year.'' This is because the FFRMS expands the consideration from the 1
percent annual chance (base) floodplain.
The current definition also states that wherever the term
``floodplain'' appears in Part 9, if a critical action is involved,
``floodplain'' means the area subject to inundation from a flood having
a 0.2 percent chance of occurring in any given year (500-year
floodplain). FEMA proposes to remove this provision from the definition
of floodplain because there is no longer a set requirement that an
applicant use a particular approach to establishing the floodplain when
there is a critical action. Instead, FEMA and the applicant must follow
the sequence described in Sec. 9.7 when making the floodplain
determination. FEMA must determine whether the project meets the new
definition of ``FEMA Federally Funded Project'' in Sec. 9.4. If the
project is a FEMA Federally Funded Project, then FEMA must establish
the floodplain by using one of the FFRMS approaches (which require the
applicant to consider whether an action is a critical action). If the
project does not meet the definition of FEMA Federally Funded Project
(i.e. the project is not ``new construction, substantial improvement,
or repairs to address substantial damage to a structure or facility''),
then FEMA must use, at a minimum, the 1 percent annual chance
floodplain for non-critical actions and the 0.2 percent annual chance
floodplain for critical actions.
FEMA proposes to add that the floodplain may be more specifically
categorized as the 1 percent annual chance (base) floodplain, the 0.2
percent annual chance floodplain, or the FFRMS floodplain (as defined
above). ``Floodplain'' is a flexible, general term, but in establishing
the correct floodplain to use, it will be necessary to determine
whether the action is a Federally Funded Project and whether it is a
critical action.
Mitigation Directorate. FEMA proposes to remove the definition of
the ``Mitigation Directorate'' as it is now included in the definition
of ``FIMA.''
Nature-Based Approaches. FEMA proposes to add a definition of
``nature-based approaches.'' Executive Order 13690 added a provision
requiring agencies to use nature-based approaches where possible and
this term has not previously been defined. FEMA proposes to define
nature-based approaches as the features (sometimes referred to as
``green infrastructure'') designed to mimic natural processes and
provide specific services such as reducing flood risk and/or improving
water quality. Nature-based approaches are created by human design (in
concert with and to accommodate natural processes) and generally, but
not always, must be maintained in order to reliably provide the
intended level of service. Nature-based approaches are sometimes
referred to as green infrastructure and may include, for example, green
roofs, or downspout disconnection that reroutes drainage pipes to rain
barrels, cisterns, or permeable areas instead of the storm sewer. The
proposed definition mirrors the language of the WRC Revised Guidelines.
New Construction. FEMA proposes to remove the parenthetical
``including the placement of a mobile home'' from the definition of new
construction because retaining the clause would have unintended
effects, given the new definition of FEMA Federally Funded Projects.
The application of the FFRMS is required for any action which meets the
definition of ``Federally Funded Project.'' ``FEMA Federally Funded
Project'' is defined as an action where FEMA funds are used for new
construction, substantial improvement, or to address substantial damage
to a structure or facility. If FEMA continued to define the placement
of a mobile home as ``new construction,'' it would be required to apply
the FFRMS to any placement of a mobile home. As described further in
the discussion of Sec. 9.13, FEMA does not intend to require the
application of the FFRMS in the placement of mobile homes for the
purpose of temporary housing.
Orders. FEMA proposes to revise the definition of ``orders'' to
include Executive Order 13690.
Substantial Improvement. FEMA proposes to update the reference to
the Stafford Act, because the citation is outdated in the current
definition.
F. Section 9.5--Scope
FEMA proposes to add an effective date provision to this section,
indicating that the revisions proposed to Part 9, which implement the
changes required by Executive Order 13690 and the FFRMS, would apply to
new actions that are commenced on or after the effective date of the
final rule. This is to clarify that current Part 9, including use of
the base floodplain (or 500-year floodplain for critical actions),
would still apply to actions that are in the planning or development
stage or undergoing implementation as of the effective date of the
final rule revising Part 9. Only new actions would be subject to
revised Part 9 so that the changes would not be applied retroactively
to projects which have already been reviewed for compliance with
Executive Order 11988 and may have incurred designed expenses to meet
the current floodplain management standards. Any new actions would be
subject to revised Part 9, including the changes required under
Executive Order 13690 and the FFRMS, such as determining whether to use
the base floodplain or FFRMS floodplain for the action and using
nature-based approaches to mitigate harm when development in the
floodplain is not avoidable.
FEMA proposes to update the citations to the Stafford Act sections
and references to organizations and titles in paragraphs (c)-(g) as
they are not current. FEMA also proposes to update paragraph (c)(8) as
it refers to a defunct title for the Individuals and Households program
and includes programs that no longer exist.
FEMA also proposes to eliminate the cross references in the last
sentence of paragraph 9.5(f)(1), because they relate to regulatory
provisions (44 CFR 9.9(e)(6) and 9.11(e)(4)) that FEMA proposes to
remove in this rule. FEMA describes its rationale for eliminating the
cited text later in this preamble.
G. Section 9.6--Decision-Making Process
Section 9.6 sets out the floodplain management and wetlands
protection decision-making process to be followed by FEMA in applying
Executive Orders 11988 and 11990 to its actions. There are eight Steps
the agency must follow. Step 1 states that FEMA will determine whether
the proposed action is located in the 100-year floodplain or, for
critical actions, the 500-year floodplain. FEMA
[[Page 57417]]
proposes to remove the specific requirement to use the 100-year (1
percent annual chance) floodplain or 500-year (0.2 percent annual
chance) floodplain for critical actions and instead use the general
term ``floodplain.'' Instead, FEMA proposes to refer the reader to
section 9.7(c) of the regulations, which describes (1) the flexible
framework that FEMA would apply to FEMA Federally Funded Project under
Executive Order 13690 and the FFRMS, as well as (2) the historical
framework that FEMA would continue to apply to actions that do not
qualify as FEMA Federally Funded Projects.
H. Section 9.7--Determination of Proposed Action's Location
Paragraph (a) of section 9.7 states that the purpose of the section
is to establish FEMA's procedures for determining whether any action as
proposed is located in or affects the base floodplain (or the 500-year
floodplain for a critical action) or a wetland (i.e., Step 1 of the 8-
step decision-making process described in section 9.6). As in section
9.6, FEMA proposes to simply refer to ``floodplain'' rather than base
floodplain or 500-year floodplain, because Executive Order 13690 and
the FFRMS's flexible framework to determining which floodplain is
appropriate depending on the type and criticality of the action means
the floodplain must be established using the process set forth in
paragraph 9.7(c) and may be something other than the floodplain
established using the 1 percent annual chance flood or 0.2 percent
annual chance flood.
Paragraph (b) of Sec. 9.7 states that information about the 100-
year and 500-year floods may be needed to comply with the regulations
in Part 9. FEMA proposes to update this statement to reflect that
information about the 1 percent annual chance (base) floodplain, 0.2
percent annual chance floodplain, and the FFRMS floodplain may be
needed.
Paragraph (c) of Sec. 9.7 outlines the sequence FEMA must follow
in making the floodplain determination. FEMA proposes to implement the
change to the definition of floodplain required by Executive Order
13690 and the FFRMS in Sec. 9.7(c), ``Floodplain determination.'' As
an initial step, FEMA would determine whether the project is a FEMA
Federally Funded Project as defined in Sec. 9.4. If the project is a
FEMA Federally Funded Project, FEMA would establish the FFRMS
floodplain and associated flood elevation using one of the four
approaches outlined in the proposed section. For example, FEMA would
likely be required to apply the FFRMS floodplain to construction
projects under FEMA's Public Assistance program authorized under
Section 406 of the Stafford Act, Hazard Mitigation Grant Program
authorized under Section 404 of the Stafford Act, and Flood Mitigation
Assistance Program authorized under Section 1366 of the National Flood
Insurance Act. However, it is likely that certain other grant programs
or actions would not be required to apply the FFRMS floodplain, because
the actions funded do not involve construction activities. This may
include grants provided for disaster planning through FEMA's Pre-
Disaster Mitigation Program authorized under Section 203 of the
Stafford Act and grants for planning and training awarded through
programs administered by FEMA's Protection and National Preparedness
Office. Each grant program FEMA funds would be required to determine
whether the 1 percent annual chance, 0.2 percent annual chance, or
FFRMS floodplain applies to the particular action.
FEMA proposes to implement the FFRMS in its regulations by adopting
the flexible framework proposed in Executive Order 13690 in its
entirety, instead of mandating a particular approach. Under this
proposal, FEMA would provide additional guidance (more readily capable
of revisions and updates) that addresses which approach FEMA would use
for different types of actions and how FEMA would tailor its
application of the various approaches depending on the type and
criticality of the action. Executive Order 13690 makes clear that the
intent of providing a flexible framework is to acknowledge that the
impacts of flooding are anticipated to increase over time due to the
effects of climate change and other threats. In order to determine what
those impacts may be, there is value in using the best-available,
actionable hydrologic and hydraulic data and methods that integrate
current and future changes in flooding based on climate science, rather
than relying solely upon the 1 percent annual chance flood standard,
which does not account for or provide any factor of safety to mitigate
against the possibility that flood risk may increase over time.
Executive Order 13690 provides an exception to use of the FFRMS
when the action is in the interest of national security, where the
action is an emergency action, where application to a Federal facility
or structure is demonstrably inappropriate, or where the action is a
mission-critical requirement related to a national security interest or
an emergency action. FEMA proposes to adopt these exceptions in their
entirety. It is important to note that an exception to using the FFRMS
under any of the reasons listed in this section does not exempt the
action from the requirements of Executive Order 11988 altogether.
Instead, if one of FEMA's actions were excepted under this provision,
FEMA would still be required to apply the 1 percent annual chance
floodplain for non-critical actions and the 0.2 percent annual chance
floodplain for critical actions. FEMA does have the authority to exempt
certain actions from any application of the requirements of Executive
Order 11988 and those actions which are exempted are enumerated in
Section 9.5(c).
FEMA proposes that if it determines that the action is not a FEMA
Federally Funded Project, i.e., that the action does not involve the
use of FEMA funds for new construction, substantial improvement, or to
address substantial damage to a structure or facility, the proposed
action may be evaluated using the 1 percent annual chance floodplain
for non-critical actions and the 0.2 percent annual chance floodplain
for critical actions. The sequence for making that determination
remains relatively unchanged. The Regional Administrator (RA) first
consults the FEMA FIRM, the FBFM and the FIS. If neither a FIRM nor a
FBFM is available, the RA consults the FHBM. The regulation provides a
list of sources to consult in the event the FHBM is not available. FEMA
proposes to update this list of sources to those suggested in the
Revised Guidelines, which were updated to reflect current titles and
new available resources.\45\ Finally, if none of these sources have the
information necessary to comply with the Orders, the RA seeks the
services of an engineer experienced in this type of work. If a decision
involves an area or location within extensive Federal or State holdings
or a headwater area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA
seeks information from the land administering agency before seeking
information and/or assistance from the list of sources or an engineer.
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\45\ FEMA proposes to update this list of sources to reflect the
WRC's Revised Guidelines.
---------------------------------------------------------------------------
Additionally, FEMA is proposing to change the paragraph structure
of Sec. 9.7 for clarity.
I. Section 9.8--Public Notice Requirements
The only proposed change is to paragraph 9.8(c)(5)(ii), to correct
a typographical error.
[[Page 57418]]
J. Section 9.9--Analysis and Reevaluation of Practicable Alternatives
FEMA proposes to add the requirement to use natural systems,
ecosystem processes, and nature-based approaches in the development of
alternatives for Federal actions in the floodplain to Sec. 9.9(b).
Under Sec. 9.9, FEMA must make a preliminary determination (Step 3 of
the 8-step process) as to whether the floodplain is the only
practicable location for the action. Part of that analysis involves
considering whether there are alternative actions that serve
essentially the same purpose as the proposed action but which have less
potential to affect or be affected by a floodplain. Under this proposed
rule, during the course of the aforementioned analysis, FEMA would
consider whether using natural systems, ecosystem processes and nature-
based approaches might have less of an effect on the floodplain.
FEMA proposes to remove paragraph (d)(2) of Sec. 9.9, which
prohibits FEMA from locating a proposed critical action in the 500-year
floodplain. This is because under this proposed rule, critical actions
would no longer be subject to a specific requirement related to the
500-year floodplain. Instead, FEMA would follow the sequence described
in Sec. 9.7 when making the floodplain determination. As noted above,
FEMA would determine whether the project meets the new definition of
``FEMA Federally Funded Project'' in Sec. 9.4. If FEMA determined that
the project is a FEMA Federally Funded Project, then FEMA would
establish the floodplain by using one of the FFRMS approaches (which
require the applicant to consider whether an action is a critical
action). If FEMA determined that the project is not a FEMA Federally
Funded Project, then FEMA would use, at a minimum, the 1 percent annual
chance floodplain for non-critical actions and the 0.2 percent annual
chance floodplain for critical actions. After FEMA completed that
process, it would apply the appropriate floodplain to the remainder of
the 8-step process. Therefore, FEMA proposes to revise paragraph (d)(1)
to specify that the ``floodplain'' is the floodplain established in
Sec. 9.7(c).
FEMA proposes to eliminate paragraph 9.9(e)(6). Section 9.9(e)(6)
prohibits FEMA from providing a new or renewed contract for flood
insurance for a structure if the Regional Director has chosen the ``no
action'' option provided for in Sec. 9.9(e)(5). This provision was
temporarily suspended via a November 28, 1980 Federal Register Notice
of intent not to enforce certain regulation concerning denial of flood
insurance coverage. (45 FR 79069) FEMA ultimately did not ever
implement this provision and does not intend to do so now; therefore,
FEMA is proposing to remove it from the regulation.
K. Section 9.11--Mitigation
FEMA proposes to remove the reference to the base flood and the
500-year flood from paragraph 9.11(c) and instead reference the
floodplain as established in Sec. 9.7(c) when describing its intent to
minimize potential harm to lives and the investment at risk. Again,
this is because there is no longer a set requirement related only to
the base floodplain or the 500-year floodplain when there is a critical
action. Instead, FEMA must follow the sequence described in Sec. 9.7
when making the floodplain determination.
In paragraph 9.11(d), FEMA proposes to revise the text to reflect
that the minimization standards are applicable to all of FEMA's grant
programs. Currently, paragraph 9.11(d) states that the minimization
standards are applicable to only FEMA's implementation of the Disaster
Relief Act of 1974. Some of FEMA's grant programs are authorized under
other legislation.
In paragraphs 9.11(d)(2) and 9.11(d)(3)(i)-(ii), FEMA proposes to
specifically require elevation of the lowest floor of a building to the
FFRMS floodplain during the construction of new or substantially
improved structures. As described above, FEMA must follow the sequence
described in Sec. 9.7 when making the floodplain determination. FEMA
must determine whether the project meets the new definition of ``FEMA
Federally Funded Project'' in Sec. 9.4. The definition of ``FEMA
Federally Funded Project'' is an action where FEMA funds are used for
new construction, substantial improvement, or to address substantial
damage to a structure or facility. ``Substantial Improvement'' as
defined in Sec. 9.4 includes all actions taken to address substantial
damage to a structure or facility. Because paragraphs 9.11(d)(2) and
9.11(d)(3)(i)-(ii) specifically reference new construction or
substantial improvement, FEMA must establish the floodplain in these
circumstances by using one of the FFRMS approaches (which require the
applicant to consider whether an action is a critical action). FEMA
multi-hazard mitigation guidance can be consulted for technical
information on elevation methods for new construction and the
retrofitting of existing structures with various types of
foundations.\46\ For example, in the case of structures with basements,
the structure may be elevated on solid foundation walls by creating a
new masonry-enclosed area on top of an abandoned and filled-in basement
or elevated on an open foundation by filling in the old basement.\47\
If the structure with a basement is non-residential, the applicant may
elect to dry floodproof the structure rather than elevate. In this
case, basements may be dry floodproofed using the same techniques as
spaces above grade, including the creation of continuous impermeable
walls, creating flood resistance in core interior areas, adding
sealants on openings, installing flood shields for openings in exterior
walls, and installing backflow valves and internal drainage
systems.\48\
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\46\ A catalogue of FEMA Building Science Branch publications
including descriptions of available publications for natural hazards
can be accessed at https://www.fema.gov/media-library/assets/documents/12909.
\47\ See FEMA, FEMA P-259 Engineering Principles and Practices
of Retrofitting Floodprone Residential Structures (2012), available
at https://www.fema.gov/media-library/assets/documents/3001, at 5E-8.
\48\ FEMA, FEMA P-936, Flood Proofing of Non-Residential
Buildings (2013), available at https://www.fema.gov/media-library/assets/documents/34270, at 3-2.
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For the same reasons as stated above, in paragraph 9.11(d)(9), FEMA
proposes to remove the reference to the base flood or, in the case of
critical actions, the 500-year flood from paragraph 9.11(d)(9) and
instead reference the floodplain as established in Sec. 9.7(c) when
describing the requirements for the replacement of building contents,
material and equipment.
FEMA proposes to revise paragraphs 9.11(e)(1) and (e)(2) by adding
``and Mitigation'' to the title of the ``Federal Insurance
Administration'' to reflect the current title of the organization, the
``Federal Insurance and Mitigation Administration.'' FEMA also proposes
to revise paragraphs 9.11(e)(2)(ii), 9.11(e)(3)(i)(E), and
9.11(e)(3)(ii) by replacing ``FIA'' with ``FIMA'' to again reflect the
change in title.
Finally, FEMA proposes to eliminate paragraph 9.11(e)(4). Paragraph
9.11(e)(4) provides that where the Regional Director has been precluded
from providing assistance for a new or substantially improved structure
in a floodway, FEMA may not provide a new or renewed policy of flood
insurance for that structure. As noted in the regulation, this
provision was temporarily suspended via a November 28, 1980 Federal
Register Notice of intent not to enforce certain regulation concerning
denial of flood insurance
[[Page 57419]]
coverage. (45 FR 79069) FEMA ultimately did not implement this
provision and does not intend to do so now; therefore, FEMA is removing
it from the regulation.
L. Section 9.13--Particular Types of Temporary Housing
FEMA proposes to specifically designate the use of the 1 percent
annual chance (base) floodplain when evaluating whether to take a
temporary housing action. See proposed Sec. 9.13(d)(1). FEMA proposes
to specifically prohibit housing an individual or family in the 1
percent annual chance (base) floodplain, unless the Regional
Administrator has complied with the provisions in proposed Sec. 9.9 to
determine that the site is the only practicable alternative. See
proposed Sec. 9.13(d)(3). FEMA proposes to designate the 1 percent
annual chance (base) floodplain as the floodplain of choice when taking
temporary housing actions for several reasons: (1) The temporary nature
of the assistance means there is not an opportunity to improve
community resilience or floodplain management long term, which is the
intent of the FFRMS; (2) expansion of the base floodplain to the FFRMS
floodplain and prohibiting placement of temporary housing in the FFRMS
floodplain may result in the temporary housing of individuals and
families many miles from their homes, which is not practicable; and (3)
it is not always feasible to elevate mobile homes, when they are being
placed as temporary housing.
FEMA proposes to add the sentence ``actual elevation levels will be
based on manufacturer specifications and applicable Agency guidance''
to reflect the fact that it is not always feasible to elevate mobile
homes. See proposed Sec. 9.13(d)(4)(i). Since mobile homes are often
the last resort for temporary housing and they are being placed
temporarily, it is not always practicable to elevate mobile homes to a
given level. However, the proposed rule would require that such homes
be elevated to the fullest extent practicable.
In paragraph 9.13(d)(4)(ii), FEMA proposes to substitute ``44 CFR
parts 59-60'' for ``44 CFR part 59 et seq.'' to be clear what specific
sections of the regulations the language references.
FEMA also proposes to require the elevation of a mobile home to at
least the level of the FFRMS floodplain, if FEMA intends to sell or
otherwise dispose of mobile homes in the FFRMS floodplain. See proposed
Sec. 9.13(e)(2). The reason for this requirement is that any sale or
disposal of a mobile home no longer constitutes temporary housing; FEMA
believes that any unit intended for permanent placement should be
protected to the fullest extent practicable, because the probability
that a flood will occur within the floodplain is greater over the
anticipated lifespan of a permanent structure than a temporary
structure, and so the benefit of hazard mitigation is greater to the
permanent structure than the temporary structure. Further, any sale or
disposal of a mobile home must meet NFIP requirements of residential
structures by elevating the lowest floor. Mobile homes placed in the
floodplain for the purposes of temporary housing must meet the criteria
of the NFIP or any more restrictive standards unless the community has
granted a variance. See proposed Sec. 9.13(d)(4)(ii).
Additionally, FEMA is proposing to change the paragraph structure
of Sec. 9.13. No substantive changes are intended as a result of this
restructuring.
M. Section 9.17--Instructions to Applicants
In paragraph 9.17(a), FEMA proposes to add ``as amended'' to
reflect Executive Order 13690's amendment of Executive Order 11988.
In paragraph 9.17(b), FEMA proposes to update the reference to the
WRC's 1978 Guidelines to the full title for the Revised Guidelines.
N. Section 9.18--Responsibilities
In paragraph 9.18(b), FEMA proposes to update the references to the
FIA and the title of Associate Administrator.
In paragraph 9.18(b)(2), FEMA proposes to add ``as amended'' to
reflect Executive Order 13690's amendment of Executive Order 11988.
O. Appendix A to Part 9--Decision-Making Process for E.O. 11988
FEMA proposes to remove ``Appendix A to Part 9--Decision-Making
Process for E.O. 11988'' in its entirety. The graphic is no longer
accurate. Further, given that Executive Order 13690 deliberately
created a flexible approach to establishing the FFRMS and also requires
update of the FFRMS every 5 years, there is no utility to including the
appendix in regulation. Instead, FEMA would include a revised version
of the appendix to include the new decision-making process and the
definition of the FFRMS floodplain in its policy implementing the
FFRMS.
V. Response to Leadership Intent Comments
On November 17, 2015, FEMA's Federal Insurance and Mitigation
Administration released for public comment FEMA's Overview of FEMA's
Intent to Implement the FFRMS (Intent). Continuing our commitment to an
open, collaborative, stakeholder-focused process in implementing the
FFRMS, FEMA shared this framework for public comment on FEMA's Web site
through December 17, 2015.
FEMA received 12 comments in response to the Intent. Of the 12
comments received, 10 comments were supportive, 1 comment was opposed,
and 1 comment was not germane.\49\
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\49\ The comments are available in the docket for this
rulemaking.
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The 10 comments received in support of the Intent came from a
variety of sources, including local governments, associations,
environmental action organizations, and commenters that chose to reply
in their private capacity. Following is a discussion of the comments
submitted.
The adverse comment came from a local government official. The
official stated that the CISA would be ``a means to extort money from
citizens based on a junk science forecasts/models of which so called
projections have been outrageously inaccurate.'' The commenter did not
provide any support for the statement. FEMA disagrees with the
commenter's assessment that Climate-Informed Science Approach (CISA) is
based on ``junk science forecasts/models.'' Scientists compare models'
projections of historical climate trends to the historical records
climate variables to measure the confidence of the models' abilities to
accurately predict future climate conditions.\50\ Many peer reviewed
studies of climate models have found in general that climate model
simulations of historical global temperature and other climactic
variables are comparable to the historical recorded observations of
those variables.\51\ These studies provide confidence in accuracy of
climate models' projections of future climate conditions.
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\50\ Risbey et al. 2014. Well-estimated global surface warming
in climate projections selected for ENSO phase. ``Nature Climate
Change'', 4, 835-840.
\51\ See Covey et al. 2003. An overview of results from the
coupled model intercomparison project (CIMP). ``Global and Planetary
Change'', 37, 103-133; and Cubasch et al. 2013. Introduction. In:
``Climate Change 2013: The Physical Science Basis. Contribution of
Working Group I to the Fifth Assessment Report of the
Intergovernmental Panel on Climate Change'' [Stocker et al. (eds)].
Cambridge University Press, Cambridge at 131.
---------------------------------------------------------------------------
The 2014 United States National Climate Assessment (Assessment)
concluded that ``[g]lobal trends in temperature and many other climate
variables provide consistent evidence of
[[Page 57420]]
a warming planet.'' \52\ These trends ``are based on a wide range of
observations, analyzed by many independent research groups around the
world.'' \53\ The Assessment reported that confidence is very high \54\
that global sea level has risen during the past century and that it
will continue to rise, and there is medium confidence that global sea
level rise will be in the range of 1-4 feet by 2100.\55\ The Assessment
further reports that although changes in overall precipitation are
uncertain in many U.S. areas, there is high degree of certainty that
the heaviest precipitation events will increase everywhere, and by
large amounts.\56\ The approaches to establish a higher vertical
elevation and corresponding floodplain provided in the FFRMS are
intended to address these future flood risks.
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\52\ Walsh et al. 2014: Ch. 2: Our Changing Climate. ``Climate
Change Impacts in the United States: The Third National Climate
Assessment,'' J. M. Melillo, Terese (T.C.) Richmond, and G. W. Yohe,
Eds., U.S. Global Change Research Program, 19-67.
\53\ Id.
\54\ ``Very high'' is the highest confidence level used in the
Assessment. See id. at 61.
\55\ Id. at 66.
\56\ Id. at 33.
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Within the 10 supportive comments, the commenters provided
suggestions and asked questions concerning FEMA's proposed framework.
One local government agreed that the CISA should be used in
``calculating the [FFRMS] flood level and floodplain,'' but stated
that:
[Allowing a different set of standards for FFRMS and NFIP not
only allows for non-compliance with the NFIP i[t] encourages it. How
will FEMA discipline a community for not complying with the NFIP
when they provided the funding for the project under FFRMS. This is
a double standard and will create legal issues if not revised.
FEMA disagrees that implementing the FFRMS encourages noncompliance
with NFIP standards. FEMA acknowledges that it is proposing to provide
an option to use the CISA for critical facilities, but notes that under
this proposal, the CISA would only be allowed if the elevation is
higher than the elevation established using the FVA. This precaution
would eliminate the possibility that the CISA elevation used for a FEMA
Federally Funded Project would be less than the base flood elevation
required as the minimum standard of the NFIP. Additionally, FEMA has
complied and will continue to comply with local floodplain management
standards that are more restrictive. FEMA is not proposing to amend
Sec. 9.11(d)(6), which prohibits FEMA from taking any action that is
inconsistent with the NFIP standards or any more restrictive Federal,
State, or local floodplain management standards.
One commenter was concerned with the issue of coordination between
Federal agencies, stating:
The Background [to the Intent document] states that ``Federal
agencies have the flexibility to select from the approaches of the
FFRMS to establish the floodplain for a given action.'' While
flexibility may be warranted, the interagency coordination provision
must come into play in establishing the ``floodplain'' by various
agencies. The Framework language needs to be revised from ``. . .
should coordinate early . . .'' to ``. . . shall coordinate early.''
This needs to be a required action whereby the most protective,
conservative delineation of the floodplain is achieved and applied
by all [F]ederal agencies for all purposes.
FEMA agrees with this comment and in the supplementary policy, FEMA
proposes that when FEMA is funding a FEMA Federally Funded Project
with, or in the same area as, another Federal agency, FEMA will
coordinate with the applicable Federal agency early in the planning
process.
Multiple commenters stated that the use of the FVA may create a
disincentive to update flood maps. Their concern was that the use of
the FFRMS-FVA rather than the FFRMS-CISA might create a sense that
flood map updates and associated funding are less critical because of
the safety standard provided by freeboard. Commenters stated that:
[t]he freeboard provision is a positive, protective step, however,
it should not become a default standard to replace updated flood
mapping.
FEMA disagrees with the statement that using the FVA will eliminate
the desire to update flood maps. FEMA has stated that the FFRMS will
not affect FEMA's flood mapping standards. While FEMA's FIS and FIRMs
may be used as sources of best available information to establish the
FFRMS elevation, the primary function of FIS and FIRMs is not to
establish the FFRMS. The production of FIS and FIRMs are managed for
other purposes, such as to serve the mission of the NFIP.
Two commenters requested that FEMA address how changing flood
hazard information will be used in establishing the FFRMS elevation.
One commenter stated:
[i]n all the talk I hear about flood mitigation and resolution I
never hear any discussion as how standard measurements, what you
call base line, do not take into account or even look at how those
base lines have moved due to erosion.
Another commenter asked:
On occasion, FEMA has issued Advisory Base Flood Elevations
(ABFEs) following a major flooding event, when it has been
determined that the effective [Base Flood Elevations (BFEs)]
significantly underestimate the base flood [. . .] What will FEMA
consider to be the advisory ``BFE'' when adding freeboard under EO
13690?
Section 2(a)(1) of the Executive Order directs agencies to use
approaches based on the best available information and FEMA's effective
FIRM. Because flood risk can change over time, FEMA's mapping program
continually updates its inventory of flood hazard information. Flood
zone designations may be established or revised when new and more
accurate information becomes available because of a FEMA-contracted
restudy or because the community makes the information available to
FEMA. More accurate information may include more accurate or updated
topographic information which would capture changes in the ground
elevation due to factors including erosion. Information from a
preliminary FIRM or ABFE may serve as best available information if the
information shows that a site previously located outside the floodplain
is now in the floodplain, or that the existing FEMA Base Flood
Elevation has increased. In response to the commenter's question, when
determining what is the appropriate ``BFE'' when adding freeboard under
Executive Order 13690, FEMA would use the best available information.
One comment received from a local government stated that the FVA is
one-size fits-all, and the FVA would not reflect local conditions when
establishing the FFRMS elevation. FEMA uses the best available
information to establish the base flood elevation, which reflects local
flooding conditions. Therefore, FEMA disagrees with the comment that
the FVA would not reflect local conditions.
Five commenters stated that FEMA should use the 0.2 percent annual
chance floodplain approach (500-year floodplain) to establish the
minimum FFRMS elevation and floodplain for critical actions. One
commenter stated that:
In some instances, the 500-year floodplain may provide a higher
elevation than the other options, and in those instances the 500-
year floodplain should be used. Critical actions are actions for
which even a slight chance of flooding would be too great. As such,
an all three FFRMS approaches should be considered to achieve the
highest level of protection.
Another commenter stated the FVA may provide too restrictive a
standard when the FVA elevation is higher than the 0.2 percent annual
chance floodplain elevation:
[[Page 57421]]
For example, in areas where the 500-year water surface is less
than 2 feet above the 100-year water surface, the freeboard value
approach may be overly conservative and go well above the 500-year
level protection.
FEMA recognizes that the FVA may be more or less conservative than
the 0.2PFA. However, FEMA is proposing in the supplementary policy to
select to use the FVA but not the 0.2PFA. FEMA feels it is more
pragmatic to only establish the elevation using one approach to manage
the level of effort and costs needed to establish the FFRMS elevation.
Additionally, by establishing only one FFRMS approach as the default
approach, FEMA believes the supplementary policy would be clearer for
stakeholders and applicants to identify which FFRMS approach FEMA would
require for FEMA Federally Funded Projects. When using the CISA, the
supplementary policy proposes that FEMA would evaluate if the CISA
methodology is appropriate to the action being considered. In
accordance with the Revised Guidelines, the CISA methodology should
consider the criticality of the action. Flood elevations informed by
the CISA can be adjusted to be higher to account for the increased
consequences associated with flood damage.\57\ This consideration
should assist FEMA in making appropriate decisions about data sources
to use in the CISA analysis to account for the flood risk to the FEMA
Federally Funded Project.
---------------------------------------------------------------------------
\57\ Revised Guidelines at 55.
---------------------------------------------------------------------------
Four commenters generally stated FEMA should require use of the
CISA for critical and/or non-critical actions. Specifically, one
commenter stated:
FEMA has an obligation to protect taxpayer dollars and thus to
use climate informed science when its experts determine the data is
adequate to accurately calculate the FFRMS flood level and
floodplain.
Another commenter stated:
Failure to evaluate sea level rise over the next several decades
would be an egregious oversight when deciding what to build, where
to build, and how to build in coastal environments.
Executive Order 13690 and the FFRMS do not prescribe a particular
approach regardless of the individual circumstance. Instead, they
intentionally provide for flexibility in application to allow Federal
agencies to develop an implementation approach that meets the needs and
mission of the particular agency. FEMA had to take into account many
considerations when making its determination, such as: (1) Consistency:
The need to create an approach which would allow stakeholders and
applicants to consistently determine which standard FEMA would apply to
FEMA Federally Funded Projects; (2) disaster considerations: the
ability to implement the approaches in both a non-disaster and post-
disaster environment. In a post-disaster environment, FEMA needs to be
able to make decisions quickly to assist communities in their recovery.
Other considerations included cost as well as resilience. FEMA balanced
consideration of the preference in the FFRMS for the CISA against these
implementation considerations when making the decision to propose
optional use of the CISA. FEMA is not proposing to require the CISA for
non-critical projects; however, as the FFRMS is reevaluated annually
and updated in 5 years as required by Executive Order 13690, this may
change.
Four commenters stated that FEMA should comply with State, Tribal,
territorial, or local government flood risk standards, when those
standards are more restrictive than the FFRMS. One comment stated:
Any critical or non-critical FEMA actions or FEMA-funded
projects should thus comply with all applicable [S]tate and local
floodplain protection standards.
FEMA has and will continue to comply with more restrictive local
floodplain management standards. FEMA is not proposing to amend Sec.
9.11(d)(6), which prohibits FEMA from taking an action if it is
inconsistent with any more restrictive Federal, State, local, Tribal,
and territorial, floodplain management standards.
One comment received from an environmental action organization
stated that:
The threshold for what constitutes substantial improvement/
damage should be a maximum of 50%. A cumulative approach to
calculate substantial improvement/damage over projects' lifetimes
should be utilized.
FEMA is not proposing to amend the definition of substantial
improvement in Sec. 9.4. Substantial improvement is defined as any
repair, reconstruction or other improvement of a structure or facility,
which has been damaged in excess of, or the cost of which equals or
exceeds, 50 percent of the market value of the structure or replacement
cost of the facility. FEMA is not proposing to adopt a cumulative
approach to calculate substantial improvement because FEMA does not
track improvements made by applicants, without FEMA funding, to their
own public facilities. If a local community has adopted a cumulative
approach to calculating substantial improvement or substantial damage,
FEMA will comply with the more restrictive local standard in accordance
with Sec. 9.11(d)(6).
Another commenter addressed use of the emergency action exception
of the FFRMS:
While we support the provision in EO 13690 that exempts
emergency action from the Federal Flood Risk Management Standard, we
urge the agency to narrowly define what constitutes an emergency
action [. . .] [P]ermanent work under the PA Program (PA) [. . .]
should not be classified as emergency work for the purposes of
exemption.
FEMA is not proposing to exempt permanent work (Categories C-G)
funded by the Public Assistance program under the emergency action
exception of the FFRMS.
Two commenters encouraged FEMA to address how structural flood risk
management systems will affect the FFRMS floodplain. One commenter
stated:
Structural flood risk management systems are intended to reduce
flood risk--not eliminate flood risk. As such, the agency should
evaluate flood risks if building behind such structures, including
the risk of flooding should the structure fail or be breached.
FEMA will consider the factors described in section 1.B.6 of the
Revised Guidelines, Structural Flood Risk Management Systems, when
considering whether an action which is landward of a structural flood
risk management system is in the FFRMS floodplain. Per the direction in
the Revised Guidelines, flood control structures' status on effective
FIRMs will not be the sole resource used to determine if a project is
within the FFRMS floodplain. FEMA determinations of accreditation
status, Zone AR,\58\ and Zone A99 \59\ may not convey the full hazard
to projects landward of a flood control structure.\60\ Additional
information, as fully listed in the Revised Guidelines, would need to
be gathered to inform the determination of if the project is within the
FFRMS floodplain.
---------------------------------------------------------------------------
\58\ Zone AR is defined as the area of special flood hazard that
results from the decertification of a previously accredited flood
protection system that is determined to be in the process of being
restored to provide base flood protection. Mandatory flood insurance
purchase requirements and floodplain management standards apply. See
44 CFR 64.3(a)(1).
\59\ Zone A99 is defined as the area of special flood hazard
where enough progress has been made on a protective system, such as
dikes, dams, and levees, to consider it complete for insurance
rating purposes. See 44 CFR 64.3(a)(1).
\60\ See Revised Guidelines at 58.
---------------------------------------------------------------------------
One commenter suggested FEMA should adopt a comprehensive
definition of resilience, stating:
[[Page 57422]]
The more comprehensive definition laid out in [the Water
Resources, Reform and Development Act of 2014] provides guidelines
that FEMA can incorporate into its guidance [and][. . .] gives more
detail and guidance to regulators and the regulated community,
thereby increasing certainty.
FEMA is not proposing to define resilience in Part 9. There is no
universal definition of resilience, nor is one associated with FEMA's
implementation of Executive Order 13690. Section 9.11 requires FEMA to
minimize potential harm to the investment at risk from flooding. With
the exception of specific minimization standards in Sec. 9.11(d), FEMA
does not specify the techniques which must be used to achieve
minimization of harm and improve the resilience of actions within the
floodplain.
The same commenter also supported the inclusion of structures and
facilities in the Revised Guidelines, stating:
FEMA has expanded the scope of the guidelines by including their
application to [F]ederal ``facilities,'' in addition to structures
[. . .] By expanding the scope of the guidelines to include roads
and bridges, FEMA has made an important step toward establishing
more resilient and disaster-resistant communities located within
[F]ederal floodplains.
However, FEMA disagrees with the comment that FEMA has expanded the
scope of the guidelines. Executive Order 11988 applies to Federal
actions, meaning (a) acquiring, managing and disposing of Federal lands
and facilities; (b) providing federally undertaken, financed or
assisted construction and improvements; and (c) conducting Federal
activities and programs affecting land use, including, but not limited
to, water and related land resources, planning, regulating and
licensing activities. The definition of action encompasses providing
federally assisted construction to both structures and facilities.
Finally, one commenter suggested FEMA should incorporate the FFRMS
into agency regulations and procedures within 18 months, requesting:
[p]lease identify which regulations, and guidance, documents will
require amendment.
FEMA has identified the regulations which will require amendment to
implement Executive Order 13690 and the FFRMS in this Notice of
Proposed Rulemaking.
VI. FFRMS FY 2016 Appropriations Language
Section 750 of Division E of the Consolidated Appropriations Act,
2016 (Act) (Pub. L. 114-113, 129 Stat. 2242) provides that none of the
funds made available under that Act or any other Act could be used to
(1) implement, administer, carry out, modify, revise or enforce
Executive Order 13690 other than for (a) acquiring, managing, or
disposing of Federal lands or facilities; (b) providing federally
undertaken, financed, or assisted construction or improvements; or (c)
conducting Federal activities or programs affecting land use, including
water and related land resources planning, regulating, and licensing
activities; or (2) implement Executive Order 13690 in a manner that
modifies the non-grant components of the National Flood Insurance
Program.
FEMA does not interpret this prohibition on the use of appropriated
funds to have any effect on this rulemaking or its policy development.
Paragraph 750(a)(1) effectively allows for action to be taken to
implement Executive Order 13690 as long as it is within the original
scope of responsibilities outlined in Section 1 of Executive Order
11988. Subsection (a)(2) prohibits FEMA from implementing Executive
Order 13690 in a way that modifies the non-grant components of the
NFIP. Neither this rulemaking nor FEMA's policy development goes beyond
the scope of Section 1 of Executive Order 11988 or modifies the non-
grant components of the NFIP. Although FEMA has always applied the 8-
step decision-making process to program-wide NFIP actions, such actions
do not qualify as FEMA Federally Funded Projects under this rule.
Therefore, the prohibition on the use of appropriated funds does not
apply to this Notice of Proposed Rulemaking.
VII. Regulatory Analyses
A. Executive Order 12866, Regulatory Planning and Review & Executive
Order 13563, Improving Regulation and Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget.
As noted, FEMA is proposing to amend 44 CFR part 9, ``Floodplain
Management and Protection of Wetlands'' and issue a supplementary
policy to implement the Executive Order 13690 and the FFRMS.
The FFRMS is a flexible framework to increase resilience against
flooding and to help preserve the natural values of floodplains. FEMA
is proposing to incorporate the FFRMS into its existing processes, to
ensure that the floodplain for FEMA Federally Funded Projects is
expanded from the current base flood level to a higher vertical
elevation and corresponding horizontal floodplain and that, where
possible, natural systems, ecosystem processes, and nature-based
approaches would be used when developing alternatives to locating
Federal actions in the floodplain.
FEMA estimates that for the 10-year period after the rule goes into
effect, the benefits would justify the costs. Flooding is the most
common type of natural disaster in the United States, and floods are
expected to be more frequent and more severe over the next century due
to the projected effects of climate change.\61\ The ocean has warmed,
polar ice has melted, and porous landmasses have subsided.\62\ Global
sea level has risen by about 8 inches since reliable record keeping
began in 1880 and is projected to rise another 1 to 4 feet by 2100.\63\
Floods are costly natural disasters; between 1980 and 2013, the United
States suffered more than $260 billion in flood-related damages.\64\
This proposed rule would help protect Federal investments from future
floods, and would help minimize harm in floodplains, by changing how
FEMA defines the floodplain for FEMA-funded new construction and
substantial improvement (i.e., ``Federally Funded Projects''). The
expected costs of this proposed rule are primarily due to increased
elevation or floodproofing requirements of structures in the FFRMS
floodplain, with the majority of these costs expected to be incurred by
FEMA itself through several
[[Page 57423]]
grant programs, which will be either passed through to taxpayers or
result in lower levels of Government services. FEMA grant recipients
would bear approximately 25 percent of the project costs for those
grant programs that have a cost-share requirement.
---------------------------------------------------------------------------
\61\ Walsh, J., D. Wuebbles, K. Hayhoe, J. Kossin, K. Kunkel, G.
Stephens, P. Thorne, R. Vose, M. Wehner, J. Willis, D. Anderson, S.
Doney, R. Feely, P. Hennon, V. Kharin, T. Knutson, F. Landerer, T.
Lenton, J. Kennedy, and R. Somerville, 2014: Ch. 2: Our Changing
Climate. ``Climate Change Impacts in the United States: The Third
National Climate Assessment'', J. M. Melillo, Terese (T.C.)
Richmond, and G. W. Yohe, Eds., U.S. Global Change Research Program,
19-67. Doi.10.7930/J0KW5CXT. Page 20.
\62\ Ibid [page 21].
\63\ Ibid [page 21].
\64\ NOAA, National Weather Service. ``Hydrologic Information
Center--Flood Loss Data''. https://www.nws.noaa.gov/hic/.
---------------------------------------------------------------------------
The cost components of this proposed rule relate to grants under
FEMA's IA, PA, HMA, and GPD programs, as well as FEMA facilities and
the Integrated Public Alert Warning System (IPAWS). To estimate the
cost of the proposed elevation requirements FEMA uses data from the
NFIP. Table 1 and Table 2 show the costs and benefits by program, that
FEMA has available, annualized for the first 10 years. Most of the
estimated costs come from PA Category C, which includes replacements of
bridges.
BILLING CODE 9111-66-P
[GRAPHIC] [TIFF OMITTED] TP22AU16.014
[[Page 57424]]
BILLING CODE 9111-66-P
[GRAPHIC] [TIFF OMITTED] TP22AU16.015
BILLING CODE 9111-66-P
IA Projects
IA Permanent Housing Construction (PHC) projects and sales of
Manufactured Housing Units (MHUs) would be affected by the proposed
rule. Although floodproofing is a valid option in some instances, FEMA
regulations prohibit the floodproofing of residential structures. In
these cases, elevation is the only option. FEMA calculated the cost of
elevating structures under PHC
[[Page 57425]]
structures by adding the cost of elevating projects between 1 foot and
3 feet above the BFE, depending on location and type of project. FEMA
subtracted certain costs that it determined to be part of the baseline.
Specifically, numerous States and localities have existing freeboard
requirements that would result in elevation costs and benefits
regardless of this proposed rule, so costs and benefits for these areas
were reduced based on existing requirements. The total PHC cost is
estimated to range between $1,690 and $24,071 per year for FEMA (PHCs
are funded fully by FEMA). FEMA estimates that an average of 2.22 PHCs
per year would be subject to FFRMS requirements. IA also includes the
sale of MHUs. The total MHU cost is estimated to range between $238 and
$3,383 per year. FEMA estimates that an average of 4.88 MHUs per year
would be subject to FFRMS requirements. An MHU elevation must be paid
fully by an IA grant recipient who ultimately purchases the MHU.
PA Projects
PA Categories C, D, E, F, and G projects would be affected by the
proposed rule, but FEMA is only able to provide partial estimates of
costs associated with Categories C (Roads and Bridges) and E (Public
Buildings).
FEMA cannot estimate the costs of improving flood resiliency of
roads because of the highly project-specific nature of road projects,
and numerous options for making roads resilient. Damage to roads during
flood events can be caused by erosion and scour, inundation by
floodwater, or debris blockage, and can be worsened by issues such as
misaligned culverts, insufficient culvert capacity, embankment erosion,
road and shoulder damage, and obstructions that reduce culvert
capacity. A sampling of mitigation actions that can improve the
resiliency of a road to flooding include installing low water
crossings, increasing culvert size, installing a relief culvert, adding
rip rap to a road embankment to provide slope protection, installing
structures such as aprons and baffle structures that dissipate the
energy of floodwater, realigning culverts, and installing road shoulder
subsurface drains.\65\
---------------------------------------------------------------------------
\65\ See FEMA, ``FEMA B-797 Hazard Mitigation Field Book:
Roadways'', (2010), available at https://www.fema.gov/media-library/assets/documents/19299.
---------------------------------------------------------------------------
FEMA considers all PA Category C grants used to replace publicly-
owned bridges to be critical actions for the purposes of this analysis.
There are a variety of techniques that can be used to floodproof a
bridge, but the specific techniques depends on the specific bridge,
location, and circumstances. FEMA estimates that the costs of this
proposed rule for Category C bridge grants would range from a low of
$5,645,515 per year to a high of $33,873,085 per year. FEMA estimates
that an average of 7.10 PA Category C bridge projects per year would be
subject to FFRMS requirements. The total cost to the PA program is
estimated to be between $5,904,826 and $37,310,281 per year. With the
75 percent cost share, the cost to FEMA would be between $4,428,620 and
$27,982,711 per year, while the cost to grant recipients would be
between $1,476,207 and $9,327,570 per year.
FEMA used data from PA grant approvals from 2006-2015 and used a
multi-step process to estimate the range of costs for elevating
Category E structures. FEMA estimates that the elevation cost for
Category E non-critical actions would be a low of $219,301 per year and
a high of $3,123,171 per year. FEMA estimates that an average of 19.19
PA Category E projects per year would be subject to FFRMS requirements.
In addition, FEMA estimates that the total cost for Category E critical
actions would range from a low of $40,009 per year to a high of
$314,026 per year.
HMA Projects
FEMA used data from HMA grant approvals for elevation and
floodproofing of structures from 2006-2015 and a multi-step process to
estimate the range of costs for elevating or floodproofing these
structures. FEMA estimates that the total cost for HMA non-critical
actions for elevation projects would range from a low of $138,999 per
year to a high of $1,979,591 per year. In addition, FEMA estimates that
the total cost for HMA critical actions for elevation projects would
range from a low of $10,858 per year to a high of $85,229 per year.
FEMA estimates that an average of 73.69 HMA elevation projects per year
would be subject to FFRMS requirements. The total cost for HMA non-
critical actions for floodproofing projects would be a low of $2,188
per year and a high of $31,165 per year. In addition, FEMA estimates
that the total cost for HMA critical actions for floodproofing projects
would be a low of $176 per year and a high of $1,397 per year. FEMA
estimates that an average of 4.70 HMA floodproofing projects per year
would be subject to FFRMS requirements. FEMA estimates the total cost
of this rule for the HMA program to be between $152,221 and $2,097,382
per year. With the 75 percent cost share, the cost to FEMA would be
between $114,165 and $1,573,037 per year, while the cost to grant
recipients would be between $38,055 and $524,346 per year.
HMA also funds various other types of projects, such as minor flood
control, property acquisition, generators, and mitigation
reconstruction, but FEMA is unable to estimate the potential costs
associated with these projects because the manner in which each
applicant meets the resiliency standards will be fact-specific and
dependent upon the nature of the design and purpose of the project.
Additional minor mitigation measures would have to be taken for these
projects, if located in the expanded FFRMS floodplain. FEMA requests
public comments.
The costs of the proposed rule would be from IA, PA, and HMA
programs, as well as administrative costs. FEMA expects minimal costs
associated with GPD and IPAWS because these programs do not fund new
construction or substantial improvement projects. These projects are
also by nature typically resilient from flooding. FEMA facilities may
also be subject to additional requirements due to the implementation of
the proposed rule.
FEMA estimates that the total additional grants costs as a result
of the proposed rule would be between $906,696 and $7.8 million per
year for FEMA and between $301,906 and $2.6 million per year for grant
recipients due to the increased elevation or floodproofing requirements
of FEMA Federally Funded Projects.
In addition, FEMA expects to incur some administrative costs as a
result of this proposed rule. FEMA estimates initial training costs of
around $100,000 the first two years after the rule is implemented, and
administrative and training costs of around $16,000 per year
thereafter. FEMA estimates that the total annual cost of this rule
after year two would be between $6.1 million and $39.5 million.
FEMA estimates the quantified cost of this proposed rule over the
next 10 years would range between $60.1 million and $394.7 million. The
present value (PV) of these estimated costs using a 7 percent discount
rate would range between $42.9 million and $277.3 million. The PV using
a 3 percent discount rate would range between $52.0 million and $336.7
million. These costs would be split between FEMA (75 percent) and
recipients (25 percent) of FEMA grants in the floodplain. The low
estimates of the 10-year costs of this rule, discounted at 3 percent
and 7 percent are presented in Table 3. The high estimates of the 10-
year costs of
[[Page 57426]]
this rule, discounted at 3 percent and 7 percent are presented in Table
4.
Table 3--10-Year Cost Totals Using 3 Percent and 7 Percent Discount Rates (Low Estimate, 2015$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual costs Annual costs
Year FEMA Admin. FEMA Grant Recipient cost Undiscounted discounted at discounted at
costs costs share annual costs 3% 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... $135,291 $4,544,475 $1,514,499 $6,194,265 $6,013,850 $5,789,033
2....................................................... 105,336 4,544,475 1,514,499 6,164,310 5,810,454 5,384,147
3....................................................... 16,010 4,544,475 1,514,499 6,074,984 5,559,471 4,958,997
4....................................................... 16,010 4,544,475 1,514,499 6,074,984 5,397,545 4,634,576
5....................................................... 16,010 4,544,475 1,514,499 6,074,984 5,240,335 4,331,380
6....................................................... 16,010 4,544,475 1,514,499 6,074,984 5,087,704 4,048,019
7....................................................... 16,010 4,544,475 1,514,499 6,074,984 4,939,518 3,783,195
8....................................................... 16,010 4,544,475 1,514,499 6,074,984 4,795,649 3,535,696
9....................................................... 16,010 4,544,475 1,514,499 6,074,984 4,655,970 3,304,389
10...................................................... 16,010 4,544,475 1,514,499 6,074,984 4,520,359 3,088,214
-----------------------------------------------------------------------------------------------
Total............................................... 368,707 45,444,751 15,144,992 60,958,451 52,020,854 42,857,646
-----------------------------------------------------------------------------------------------
Annualized.......................................... .............. .............. .............. .............. 6,098,431 6,101,965
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 4--10-Year Cost Totals Using 3 Percent and 7 Percent Discount Rates (High Estimate, 2015$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual costs Annual costs
Year FEMA Admin. FEMA Grant Recipient cost Undiscounted discounted at discounted at
costs costs share annual costs 3% 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... $135,291 $29,579,819 $9,855,299 $39,570,409 $38,417,873 $36,981,691
2....................................................... 105,336 29,579,819 9,855,299 39,540,454 37,270,670 34,536,164
3....................................................... 16,010 29,579,819 9,855,299 39,451,128 36,103,371 32,203,872
4....................................................... 16,010 29,579,819 9,855,299 39,451,128 35,051,817 30,097,077
5....................................................... 16,010 29,579,819 9,855,299 39,451,128 34,030,890 28,128,109
6....................................................... 16,010 29,579,819 9,855,299 39,451,128 33,039,699 26,287,953
7....................................................... 16,010 29,579,819 9,855,299 39,451,128 32,077,378 24,568,180
8....................................................... 16,010 29,579,819 9,855,299 39,451,128 31,143,085 22,960,916
9....................................................... 16,010 29,579,819 9,855,299 39,451,128 30,236,005 21,458,800
10...................................................... 16,010 29,579,819 9,855,299 39,451,128 29,355,345 20,054,953
-----------------------------------------------------------------------------------------------
Total............................................... 368,707 295,798,190 98,552,993 394,719,890 336,726,132 277,277,715
-----------------------------------------------------------------------------------------------
Annualized.......................................... .............. .............. .............. .............. 39,474,575 39,478,109
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits
FEMA anticipates that the benefits of the proposed rule would
justify the costs. FEMA has provided qualitative benefits, including
the reduction in damage to properties and contents from future floods,
potential lives saved, public health and safety benefits, reduced
recovery time from floods, and increased community resilience to
flooding.
FEMA believes this proposed rule would result in savings in time
and money from a reduced recovery period after a flood and increased
safety of individuals. Generally, if properties are protected, there
would be less damage, resulting in less clean-up time. In addition,
higher elevations help to protect people, leading to increased safety.
FEMA is unable to quantify these benefits, but improving the resiliency
of bridges has significant qualitative benefits, including: Protecting
evacuation and escape routes; limiting blockages of floodwaters passing
under the bridge that may lead to more severe flooding upstream; and,
avoiding the cost of replacing the bridge again if it is damaged during
a subsequent flood. Any estimates of these savings would be dependent
on the specific circumstances and FEMA is not able to provide a numeric
value on these savings.
A 2008 FEMA report analyzes potential savings from damage avoidance
associated with including freeboard in the construction of new
residential structures in coastal areas at various freeboard
levels.\66\ According to this report, in some contexts a dollar spent
on elevation activities could result in a $1.30 to $8.92 return on
investment, due to damage avoidance only. This report shows that the
benefits of incorporating freeboard exceed the costs for certain
projects located in coastal flood zones. However, the report's scope is
limited to new construction of houses in coastal areas. Due to the
relatively narrow scope of the study, FEMA has not used the results of
this report to estimate monetized benefits of freeboard to the
nationwide projects that would be affected by this rule. FEMA requests
information and studies from the public that examine the benefits of
freeboard for a more diverse set of projects, such as non-residential
structures, retrofitting substantial improvement projects, projects in
non-coastal floodplains. If FEMA receives additional information that
informs an estimate of the monetized benefits of freeboard to a broad
range of structures, we may provide a monetized estimate of benefits in
the final rule.
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\66\ FEMA, ``2008 Supplement to the 2006 Evaluation of the
National Flood Insurance Program's Building Standards''. https://www.fema.gov/media-library-data/20130726-1911-25045-9876/2008_freeboard_report.pdf.
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For more in-depth review of these costs and benefits, please see
the Regulatory Evaluation, which can be found in the docket for this
rulemaking.
[[Page 57427]]
B. Regulatory Flexibility Act
This section considers the effects that this proposed rule would
have on small entities as required by the Regulatory Flexibility Act
(RFA, 5. U.S.C. 601 et seq., Pub. L. 96-354) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The RFA
generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute unless the agency certifies that the rule will not have a
``significant economic impact on a substantial number of small
entities.'' 5 U.S.C. 605(b). Small entities include small businesses,
small organizations, and small governmental jurisdictions.
FEMA prepared an Initial Regulatory Flexibility Analysis (IRFA) for
this proposed rule. This analysis is detailed in this section and
represents FEMA's assessment of the impacts of this proposed rule on
small entities. Section 1 outlines FEMA's initial assessment of small
entities that would be affected by the proposed regulations. Section 2
presents FEMA's analysis and summarizes the steps taken by FEMA to
comply with the RFA.
1. Initial Assessment of Small Entities Affected by the Proposed
Regulations
The proposed rule would affect FEMA grant recipients that receive
Federal funds for new construction, substantial improvement to
structures, or to address substantial damage to structures and
facilities. Many of these grants are available to local governmental
jurisdictions and non-profit organizations. FEMA does not provide
grants to for-profit businesses.
2. Analysis and Steps Taken To Comply With the Regulatory Flexibility
Act
The following IRFA addresses the following requirements of the RFA:
(1) A description of the reasons why action by the agency is being
considered;
(2) a succinct statement of the objectives of, and legal basis for,
the proposed rule;
(3) a description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
(4) a description of the projected reporting, recordkeeping and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
(5) an identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap or conflict with the
proposed rule;
(6) a description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities. Consistent with the stated objectives of applicable
statutes, the analysis shall discuss significant alternatives such as:
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; the clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; the use of performance rather than design standards; and an
exemption from coverage of the rule, or any part thereof, for such
small entities.
2.1 Description of the Reasons Why Action by the Agency Is Being
Considered
On January 30, 2015, the President issued Executive Order 13690,
which amended Executive Order 11988 and established a new flood risk
management standard called the FFRMS. Executive Order 13690 directs
agencies to issue or amend their existing regulations and procedures to
comply with the Order; therefore, FEMA is updating its regulations at
44 CFR part 9 and issuing an FFRMS policy.
The FFRMS is intended to reduce flood risk by expanding the
floodplain with respect to Federally Funded Projects, revising the
definition of the floodplain, adding a definition of ``critical
action,'' and requiring agencies to use natural systems, ecosystem
processes, and nature-based approaches in the development of
alternatives for Federal actions in the floodplain.
2.2 Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
FEMA is responsible for publishing information on floodplain areas
and identifying special hazards. FEMA is also responsible for several
grant programs that use Federal funds to assist in construction or
reconstruction following a disaster, as well as grants for hazard
mitigation and recovery. These grants can potentially be used for
locations within a floodplain.
To meet the requirements of section 2(d) of Executive Order 11988,
requiring agencies to issue or amend existing regulations and
procedures to implement the Executive Order, FEMA promulgated
regulations which are located at 44 CFR part 9. FEMA is revising 44 CFR
part 9 to reflect the changes to Executive Order 11988 made via
Executive Order 13690.
The objective of the proposed rule is to revise the regulations for
locating FEMA Federally Funded Projects in an expanded floodplain to
reduce the risk of flooding to those projects. In addition, for actions
that are determined to be ``critical actions'' as defined by the
proposed rule, the proposed rule would impose more stringent elevation
and resiliency requirements. This is necessary to protect actions where
even a slight chance of flooding is too great.
The rule would also require the use of nature-based approaches,
where possible, when considering alternatives for development in the
floodplain. Nature-based approaches can include both natural and
engineered features. The objective of requiring the use, where
possible, of nature-based approaches is to help to restore the
floodplain's natural processes. The use of nature-based approaches may
result in reduced flood risks. In addition, nature-based approaches
have less potential to degrade the natural and beneficial values of
floodplains. Some examples of nature-based approaches could include
restoring wetland functions along a coastal or riverine system to
create a living shoreline or using green infrastructure measures to
reduce runoff.
2.3 Description Of and Where Feasible, an Estimate of the Number of
Small Entities To Which the Proposed Rule Will Apply
This rule would affect certain recipients of FEMA grants. These
would primarily be PA and HMA grant recipients, which include States,
Tribal governments, local governments and certain non-profit
organizations. The PA grant recipients would include Categories C, D,
E, F, and G projects however, FEMA is only able to provide reasonable
estimates of the number of entities and costs associated with
Categories C (roads and bridges) and E (public buildings). IA and GPD
are not discussed in this analysis. IA provides grants directly to
individuals and individuals are not small entities as defined in 5
U.S.C. 601(6). FEMA finds that this rule would likely have no effect on
GPD grants because GPD projects are not typically substantial
improvement or new construction.
PA provides grants to States, Tribal governments, local governments
and certain non-profit organizations for rebuilding, replacement, or
repair of public and non-profit facilities damaged
[[Page 57428]]
by disasters. Where such rebuilding, replacement or repair involves new
construction, substantial improvement, and repair of substantial damage
of structures in the expanded FFRMS floodplain, PA recipients would
incur additional costs to comply with proposed elevation and
floodproofing requirements. Out of a population \67\ of 20,341
individual PA Category E grant recipients, a random sample of 96
recipients \68\ shows that 79 projects (approximately 82 percent) would
meet the definition of small entities under the Regulatory Flexibility
Act. This was made up of 45 small governments, 33 private non-profits,
and one Tribal government. According to historical data, there have
been an average of 44 new construction, substantial improvement, or
repair of substantial damage PA Category E projects annually over the
past 10 years with approximately 19 of these located in the 1 percent
annual chance floodplain or expanded FFRMS floodplain. Therefore, FEMA
estimates that 16 small entities would be affected each year through PA
Category E projects (19 x 82 percent). As discussed earlier, FEMA did
not include Categories D, F, and G projects therefore the total number
of affected entities could be higher.
---------------------------------------------------------------------------
\67\ PA Category C grant recipients (Roads & Bridges) were not
included in this population as the dataset that FEMA used lists the
project grantees (States and Tribes), and not subgrantees (local
governments and private non-profits). Therefore FEMA is not able to
estimate the number of small entities affected by Category C grants.
Over the past 10 years, PA has funded the replacement of 71 bridges.
FEMA requests data and/or comments to determine how many bridge
replacement project grants go to small entities.
\68\ The population of PA Category E projects includes all
``Public Buildings'' grants from 2006-2015. Because of the large
population, a random sample of 96 projects was drawn, using a
confidence level of 95 percent and a 10 percent confidence interval.
---------------------------------------------------------------------------
HMA provides mitigation grants to States, Tribal governments, local
governments and certain non-profit organizations to, among other
things, relocate property outside of the floodplain, or to elevate or
floodproof structures to the flood level. As noted in the Regulatory
Evaluation, HMA has funded an average of 67 projects per year from
2006-2015. Unlike PA grants, the majority of HMA grants are for
projects located in the floodplain, so for this analysis FEMA assumes
that all HMA projects are in the floodplain. FEMA has estimated that
the freeboard requirements would expand the floodplain by 16.8 percent
based on studies conducted in 24 U.S. counties with varied topography.
With the 16.8 percent expansion of the floodplain, HMA would have an
additional 11 projects per year (67 x 16.8 percent = 11) for a total of
78 projects located in the 1 percent annual chance floodplain or
expanded FFRMS floodplain. Assuming 82 percent \69\ of HMA grant
recipients are small entities, the proposed rule would affect
approximately 64 small entities per year (78 projects x 82 percent).
---------------------------------------------------------------------------
\69\ In FEMA's dataset, HMA recipients only included project
titles and not the name of the grantee. This prevented FEMA from
determining if a grant recipient was a small entity. Since PA and
HMA provide funding to similar entities (States, Tribal governments,
local governments and certain non-profit organizations) for disaster
related activity, FEMA used the percentages of small entity grant
recipients found in PA Category E as a proxy for HMA small entities.
---------------------------------------------------------------------------
2.4 Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the Requirement
and the Type of Professional Skills Necessary for Preparation of the
Report or Record
FEMA will not be changing the application process for its grant
programs. The majority of the costs of this proposed rule would fall on
FEMA. Small entities, like all entities, would be subject to additional
costs associated with floodproofing, elevation of structures, and flood
resiliency measures required by the proposed rule. For the purposes of
this analysis, and based on historical data, FEMA presents the costs
such that most projects would choose to elevate because of the
additional level of safety elevation provides over floodproofing and a
historically higher number of projects that involved elevation as
opposed to floodproofing.\70\ FEMA uses an NFIP report to estimate the
cost of the proposed elevation requirements.\71\ The report provides
estimates for the cost of elevating structures as a percentage of total
construction cost.
---------------------------------------------------------------------------
\70\ According to historical HMA data, there have been an
average of 63 elevation projects and only 4 floodproofing projects
per year.
\71\ FEMA, ``2008 Supplement to the 2006 Evaluation of the
national Flood Insurance Program's Building Standards'' Table 3.
https://www.fema.gov/media-library-data/20130726-1911-25045-9876/2008_freeboard_report.pdf.
---------------------------------------------------------------------------
According to HMA data, the average cost of floodproofing is 50
percent of the cost of freeboard elevation. Floodproofing involves
sealing off areas below the flood level so that water cannot enter, or
altering the use of these areas so that flood waters may pass through
without causing serious damage. Non-residential structures where
elevation is not feasible may be floodproofed rather than elevated.
Additionally, floodproofing preexisting properties may be less costly
than elevating an existing property. So, where a project may floodproof
rather than elevate, costs may be lower for some projects than the
costs presented here. However, for existing properties that choose to
elevate rather than floodproof, costs may be higher for some projects
than the costs presented here because the NFIP report cost estimates
are for when freeboard is included in the design of a structure. FEMA
requests comments on these assumptions.
The Federal cost-share of eligible PA work is generally 75 percent,
so PA recipients would be required to fund 25 percent of the costs to
comply with the requirements of the proposed rule.\72\ FEMA estimates
that the average annual cost of the proposed rule for PA Category E
projects would be between $13,648 and $180,905 \73\ per project. Using
the Federal cost share, each small entity would have an average
expected cost between $3,412 ($13,648 x 25 percent cost share) and
$45,226 ($180,905 x 25 percent).
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\72\ In extraordinary circumstances the Federal share for PA may
be 90 percent when actual Federal obligations exceed a qualifying
threshold. See 44 CFR 206.47.
\73\ According to the Regulatory Evaluation for this proposed
rule, FEMA estimates the average annual cost for 19 PA Category E
projects is between $259,311 and $3,437,197. The estimated cost per
project is between $13,648 ($259,311/19) and $180,905 ($3,437,197/
19). For information about how FEMA arrived at these estimates,
please see the Regulatory Evaluation for this proposed rule located
in the docket.
---------------------------------------------------------------------------
The cost-sharing arrangement for HMA is 75 percent Federal and 25
percent recipient, so HMA recipients would be required to fund 25
percent of the costs to comply with the requirements of the proposed
rule. FEMA estimates the average cost of the proposed rule for HMA
projects would be between $1,952 and $26,890 annually.\74\ Using the
Federal cost share, each small entities would have an average cost
between $488 ($1,952 x 0.25) and $6,722 ($26,890 x 0.25).
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\74\ According to the Regulatory Evaluation for this proposed
rule, FEMA estimates the annual cost for 78 HMA projects is between
$152,221 and $2,097,382. The estimated cost per project is between
$1,952 ($152,221/78 projects) and $26,890 ($2,097,382/78 projects).
For information about how FEMA arrived at these estimates, please
see the Regulatory Evaluation for this proposed rule located in the
docket.
---------------------------------------------------------------------------
Reporting and recordkeeping is not expected to change with the
exception of minor changes to FEMA's Mitigation Grant Program/e-Grants
system. This is an automated grant application and management system
that would have one question changed as a result of this proposed rule.
FEMA would still make the determination if a project would take place
in an FFRMS floodplain. (See
[[Page 57429]]
the Paperwork Reduction Act section of this preamble below for
information about the proposed revision to this collection of
information.)
2.5 Identification, to the Extent Practicable, of Relevant Federal
Rules Which may Duplicate, Overlap, or Conflict With the Proposed Rule
This rule does not duplicate, overlap, or conflict with other
Federal rules as the proposed rule only relates for FEMA Federally
Funded Projects. Existing FEMA rules relating to compliance with
Executive Order 11988, Floodplain Management are being modified to
comply with Executive Order 13690, which amends Executive Order 11988.
2.6 Description of Any Significant Alternatives to the Proposed Rule
Which Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
The standards proposed in this rule represent FEMA's efforts to
implement Executive Order 13690, which establishes executive branch-
wide policy in this area. Small entities would have the option to
relocate outside of the floodplain. This may be preferable in cases
where property can be obtained and new facilities built for less cost
than elevating or floodproofing to the freeboard level in the
floodplain, and the recipient has the ability to relocate.
Executive Order 13690 allows several approaches to determine the
FFRMS floodplain, but FEMA is proposing to adopt the FFRMS-FVA in most
cases. The FFRMS-FVA uses the most easily attainable data for elevation
and floodproofing standards and is the most consistent with existing
State and local regulations. As a result, FEMA's proposed approach
would reduce the burden on small entities by not requiring a separate
set of Federal requirements that are more likely to be different from
existing State and local requirements. Section F of this NPRM, FEMA's
Implementation of Executive Order 13690 and FFRMS, describes the FFRMS
approaches allowed by Executive Order 13690 and FEMA's considerations
when selecting between the FFRMS approaches.
FEMA invites all interested parties to submit data and information
regarding the potential economic impact that would result from adoption
of the proposals in this proposed rule. FEMA will consider all comments
received in the public comment process.
C. Unfunded Mandates Reform Act
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Public Law 104-4, 2 U.S.C. 1531), each Federal agency shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and Tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law). Section 202 of the
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) further requires
that before promulgating any general notice of proposed rulemaking that
is likely to result in the promulgation of any rule that includes any
Federal mandate that may result in expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any 1 year, and
before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement detailing the effect on State, local, and Tribal governments
and the private sector. The proposed rule would not result in such an
expenditure, and thus preparation of such a statement is not required.
D. National Environmental Policy Act (NEPA) of 1969
Section 102 of the National Environmental Policy Act of 1969
(NEPA), Public Law 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
et seq.) requires agencies to consider the impacts of their actions on
the quality of the human environment. The Council on Environmental
Quality's procedures for implementing NEPA, 40 CFR 1500 through 1508,
require Federal agencies to prepare Environmental Impact Statements
(EIS) for major Federal actions significantly affecting the quality of
the human environment. Each agency can develop categorical exclusions
to cover actions that have been demonstrated to not typically trigger
significant impacts to the human environment individually or
cumulatively. Agencies develop environmental assessments (EA) to
evaluate those actions that do not fit an agency's categorical
exclusion and those actions for which a categorical exclusion applies
but extraordinary circumstances exist. At the end of the EA process the
agency will determine whether to make a Finding of No Significant
Impact or whether to initiate the EIS process.
Rulemaking is a major Federal action subject to NEPA. Categorical
exclusion A3 included in the list of exclusion categories at Department
of Homeland Security Instruction Manual 023-01-001-01, Revision 01,
Implementation of the National Environmental Policy Act, Appendix A,
issued November 6, 2014, covers the promulgation of rules, issuance of
rulings or interpretations, and the development and publication of
policies, orders, directives, notices, procedures, manuals, and
advisory circulars. The purpose of this proposed rule is to update the
Floodplain Management and Protection of Wetland requirements to adopt
the approaches outlined in Executive Order 13690 to establish the
floodplain and associated flood elevation that must be used in the
decision-making process to be followed by FEMA in applying Executive
Orders 11988 and 13690 to its actions. The decision-making process
requires FEMA to determine whether a proposed action is located in a
wetland and/or the floodplain. FEMA is required to take mitigative
measures, if it makes the determination to carry out an action in the
floodplain. The rule would also add a requirement to use natural
systems, ecosystem processes, and nature-based approaches in the
development of alternatives for Federal actions in a floodplain. The
result of applying the approaches outlined in Executive Order 13690 to
establish the floodplain and associated flood elevation may be
additional structures elevated or structures elevated to a higher
level. Federal assistance for the reconstruction, elevation,
retrofitting, upgrading to current codes and standards, and
improvements to pre-existing facilities when the immediate project area
has already been disturbed and when those actions do not alter basic
functions, do not exceed the capacity of other system components, or
modify intended land use are categorically excluded under Department of
Homeland Security Instruction Manual 023-01-001-01, Revision 01,
Implementation of the National Environmental Policy Act, Appendix A
(N7). New construction upon or improvement of land where the proposed
use is compatible with applicable planning and zoning standards and
coastal management programs, the site is in a developed or previously-
disturbed site, the proposed use will not substantially increase the
number of motor vehicles in the area, the site and scale of
construction are consistent with nearby buildings, and the construction
or improvement will not result in uses that exceed the existing support
infrastructure capacities are categorically excluded under Department
of Homeland
[[Page 57430]]
Security Instruction Manual 023-01-001-01, Revision 01, Implementation
of the National Environmental Policy Act, Appendix A (E2). No
extraordinary circumstances exist that will trigger the need to develop
an EA or EIS. See Department of Homeland Security Instruction Manual
023-01-001-01, Revision 01, Implementation of the National
Environmental Policy Act, section (V)(B)(2). An EA will not be prepared
because a categorical exclusion applies to this rulemaking action and
no extraordinary circumstances exist.
E. Paperwork Reduction Act (PRA) of 1995
As required by the Paperwork Reduction Act of 1995 (PRA), Public
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.),
FEMA may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the collection of
information displays a valid control number.
In this proposed rule, FEMA is seeking a revision to the already
existing collection of information, OMB Control Number 1660-0072,
because FEMA is proposing to replace question E.1. on screenshot #10 in
order to comply with the proposed FFRMS requirements. Currently, 1660-
0072's screenshot #10, E.1. reads: ``Does a Flood Insurance Rate Map
(FIRM), Flood Hazard Boundary Map (FHBM), hydrologic study, or some
other source indicate that the project is located in or will affect a
100-year floodplain, a 500-year floodplain if a critical facility, an
identified regulatory floodway, or an area prone to flooding?'' We are
proposing to change it to: ``Does a Flood Insurance Rate Map (FIRM),
Flood Hazard Boundary Map (FHBM), hydrologic study, or some other
source indicate that the project is located in or will affect a
floodplain (including a base floodplain, 500-year floodplain, or FFRMS
floodplain), an identified regulatory floodway, or an area prone to
flooding?'' This proposed rule serves as the 60-day comment period for
this proposed change pursuant to 5 CFR 1320.11. FEMA invites the
general public to comment on the proposed collection of information.
Collection of Information
Title: Mitigation Grant Program/e-Grants.
Type of Information Collection: Revision of a currently approved
collection.
OMB Number: 1660-0072.
FEMA Forms: FEMA Form 101-0-0-1, Benefit Cost Determination; FEMA
Form 093-0-0-1, Environmental Review; FEMA Form 080-0-0-12, Project
Narrative-Sub-grant Application.
Abstract: The FEMA pre-disaster mitigation grant programs--FMA and
PDM--both utilize an automated grant application and management system
known as e-Grants to apply for these grants. These programs provide
funding to allow for the reduction or elimination of the risks to lives
and property from hazards. The e-Grants system also provides the
mechanism to provide quarterly reports of the financial status of the
project and the final closeout report.
Affected Public: State, local and Tribal Governments.
Estimated Number of Respondents: 56.
Estimated Number of Responses: 5,264.
Estimated Total Annual Burden Hours: 43,848.
Estimated Cost: There are no operation and maintenance, or capital
and start-up costs associated with this collection of information.
Comments
Comments may be submitted as indicated in the ADDRESSES caption
above. Comments are solicited to (a) evaluate whether the proposed data
collection is necessary for the proper performance of the agency,
including whether the information shall have practical utility; (b)
evaluate the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (c) enhance the quality, utility, and
clarity of the information to be collected; and (d) minimize the burden
of the collection of information on those who are to respond, including
through the use of appropriate automated, electronic, mechanical, or
other technological collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses.
F. Privacy Act
Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must
determine whether implementation of a proposed regulation would result
in a system of records. A ``record'' is any item, collection, or
grouping of information about an individual that is maintained by an
agency, including, but not limited to, his/her education, financial
transactions, medical history, and criminal or employment history and
that contains his/her name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a finger or
voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ``system of
records'' is a group of records under the control of an agency from
which information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to
the individual. An agency cannot disclose any record, which is
contained in a system of records, except by following specific
procedures.
In accordance with DHS policy, FEMA has completed a Privacy
Threshold Analysis for this proposed rule. This proposed rule does not
affect the 1660-0072 OMB Control Number's current compliance with the
Privacy Act of 1974, as amended, or the E-Government Act of 2002. OMB
Control Number 1660-0072 is covered by the DHS/FEMA/PIA-006--FEMA
National Emergency Management Information System Mitigation Electronic
Grants Management System Privacy Impact Assessment (PIA). As a result,
no update to DHS/FEMA/PIA-006 is necessary. OMB Control Number 1660-
0072 is covered under the System of Records Notice (SORN) for DHS/FEMA-
009 Hazard Mitigation, Disaster Public Assistance, and Disaster Loan
Programs, 79 FR 16015, Mar. 24, 2014. This proposed rule does not
create a new system of records and no update to this SORN is necessary.
G. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments,'' 65 FR 67249, Nov. 9, 2000, applies to agency
regulations that have Tribal implications, that is, regulations that
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
Under this Executive Order, to the extent practicable and permitted by
law, no agency shall promulgate any regulation that has Tribal
implications, that imposes substantial direct compliance costs on
Indian Tribal governments, and that is not required by statute, unless
funds necessary to pay the direct costs incurred by the Indian Tribal
government or the Tribe in complying with the regulations are provided
by the Federal Government, or the agency consults with Tribal
officials.
FEMA has reviewed this proposed rule under Executive Order 13175
and
[[Page 57431]]
has determined that this rule does not have a substantial direct effect
on one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
Part 9 applies to FEMA disaster and non-disaster assistance
programs, including PA, Individual Assistance, HMA, and grants
processed by GPD. Pursuant to section 8 of Executive Order 11988, Part
9 does not apply to assistance provided for emergency work essential to
save lives and protect property and public health and safety, performed
pursuant to sections 403 and 502 of the Stafford Act, as amended (42
U.S.C. 5170b and 5192).
Indian Tribes have the same opportunity to participate in FEMA's
grant programs as other eligible participants, and participation is
voluntary. The requirements of this rule do not affect Tribes
differently than other grant recipients. Therefore, FEMA does not
expect this proposed rule to have a substantial direct effect on one or
more Indian Tribes or impose substantial direct compliance costs on
Indian Tribal governments, but will consider any information provided
in comments to inform its analysis of this issue as part of a final
rule.
Notwithstanding FEMA's conclusion that this proposed rule does not
have tribal implications, FEMA recognizes the importance of engaging
with Tribes with respect to the FFRMS. FEMA therefore summarizes below
the extensive engagement process that precedes this rule, including
significant engagement with Tribal leaders. As noted above, in the
aftermath of Hurricane Sandy, the President issued Executive Order
13632,\75\ which created the Federal Interagency Hurricane Sandy
Rebuilding Task Force (Sandy Task Force). This Task Force was chaired
by the Secretary of HUD, who led the effort in coordination with
multiple Federal partners, as well as an advisory group composed of
State, local, and Tribal elected leaders.
---------------------------------------------------------------------------
\75\ 77 FR 74341, Dec. 14, 2012.
---------------------------------------------------------------------------
In June 2013, the President issued a Climate Action Plan which
directs agencies to take the appropriate actions to reduce risk to
Federal investments, specifically directing agencies to build on the
work done by the Sandy Task Force and update their flood risk reduction
standards for ``federally-funded projects'' to ensure that ``projects
funded with taxpayer dollars last as long as intended.'' In November
2013, the Climate Task Force convened, with 26 Governors, mayors, and
local and Tribal leaders serving as members. After a year-long process
of receiving input from across State, local, Tribal and territorial
governments; private businesses; trade associations; academic
organizations; civil society; and other stakeholders, the Task Force
provided a recommendation to the President in November 2014 that, in
order to ensure resiliency, Federal agencies, when taking actions in
and around floodplains, should include considerations of the effects of
climate change, including sea level rise, more frequent and severe
storms, and increasing river flood risks.
Executive Order 13690 amended Executive Order 11988 and established
the FFRMS. It also set forth a process by which additional input from
stakeholders could be solicited and considered before agencies took any
action to implement the FFRMS. It required FEMA to publish, on behalf
of the MitFLG, an updated draft version of the 1978 Guidelines \76\
revised to incorporate the changes required by Executive Order 13690
and the FFRMS in the Federal Register for notice and comment. After the
MitFLG received and adjudicated the comments, Executive Order 13690
required the MitFLG to submit to the WRC recommendations for finalizing
the draft Guidelines.
---------------------------------------------------------------------------
\76\ The 1978 Guidelines were the original interpretation of
Executive Order 11988.
---------------------------------------------------------------------------
FEMA, on behalf of MitFLG, published a Federal Register notice for
a 60-day notice and comment period seeking comments on a draft of the
Revised Guidelines, 80 FR 6530, Feb. 5, 2015. Additionally, on February
27, 2015, FEMA wrote to Tribal Leaders specifically asking for their
comments regarding the Executive Order establishing the FFRMS.
In response to multiple requests, the MitFLG extended the comment
period for an additional 30 days to end on May 6, 2015. The
Administration also attended or hosted over 25 meetings across the
country with State, local, and Tribal officials (including 26 mayors)
and interested stakeholders to discuss Executive Order 13690 and the
Guidelines. The MitFLG held 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 Guidelines. There were Tribal representatives at both the Ames,
Iowa and Sacramento, California listening sessions; however, the
specific Tribes that they were representing were not identified. The
MitFLG published notice of these public listening sessions in the
Federal Register.
The public comment period closed on May 6, 2015. Two Tribes
submitted formal comments on the Guidelines during the Federal Register
comment period. The MitFLG adjudicated all comments and presented its
adjudication and recommendations to the WRC as required. The WRC issued
the Revised Guidelines on October 8, 2015 and the corresponding Notice
published in the October 22, 2015 Federal Register at 80 FR 64008.
FEMA welcomes Tribal comments on all aspects of this proposed rule.
H. Executive Order 13132, Federalism
Executive Order 13132, ``Federalism,'' 64 FR 43255, Aug. 10, 1999,
sets forth principles and criteria that agencies must adhere to in
formulating and implementing policies that have federalism
implications, that is, regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Federal
agencies must closely examine the statutory authority supporting any
action that would limit the policymaking discretion of the States, and
to the extent practicable, must consult with State and local officials
before implementing any such action.
FEMA has reviewed this proposed rule under Executive Order 13132
and has determined that this rule does not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, and therefore
does not have federalism implications as defined by the Executive
Order.
Part 9 applies to FEMA disaster and non-disaster assistance
programs, including Public Assistance, Individual Assistance, HMA, and
grants processed from GPD. Pursuant to section 8 of Executive Order
11988, Part 9 does not apply to assistance provided for emergency work
essential to save lives and protect property and public health and
safety, performed pursuant to section 403 and 502 of the Stafford Act,
as amended (42 U.S.C. 5170b and 5192). The proposed rule does not
significantly affect the rights, roles, and responsibilities of States,
and involves no preemption of State law nor does it limit State
policymaking discretion.
[[Page 57432]]
I. Executive Order 12898, Environmental Justice
Under Executive Order 12898, ``Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' (59 FR 7629, Feb. 16, 1994), as amended by Executive
Order 12948, (60 FR 6381, Feb. 1, 1995), FEMA incorporates
environmental justice into its policies and programs. The Executive
Order requires each Federal agency to conduct its programs, policies,
and activities that substantially affect human health or the
environment, in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons from
participation in programs, denying persons the benefits of programs, or
subjecting persons to discrimination because of race, color, national
origin or income level.
FEMA does not expect this rule to have a disproportionately high
and adverse human health or environmental effect on low income or
minority populations, but will consider any information provided in
comments to inform its analysis of this issue as part of a final rule.
J. Executive Order 12630, Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, ``Governmental
Actions and Interference With Constitutionally Protected Property
Rights'' (53 FR 8859, Mar. 18, 1988).
K. Executive Order 12988, Civil Justice Reform
This NPRM meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, Feb. 7,
1996), to minimize litigation, eliminate ambiguity, and reduce burden.
L. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
This NPRM will not create environmental health risks or safety
risks for children under Executive Order 13045, ``Protection of
Children From Environmental Health Risks and Safety Risks'' (62 FR
19885, Apr. 23, 1997).
M. Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities, OMB
Circular A-119
``Voluntary consensus standards'' are standards developed or
adopted by voluntary consensus standards bodies, both domestic and
international. These standards include provisions requiring that owners
of relevant intellectual property have agreed to make that intellectual
property available on a non-discriminatory, royalty-free or reasonable
royalty basis to all interested parties. OMB Circular A-119 directs
agencies to use voluntary consensus standards in their regulatory
actions in lieu of government-unique standards except where
inconsistent with law or otherwise impractical. The policies in the
Circular are intended to reduce to a minimum the reliance by agencies
on government-unique standards.
Consistent with President Obama's Climate Action Plan,\77\ the
National Security Council staff coordinated an interagency effort to
create a new flood risk reduction standard for Federally Funded
Projects. The views of Governors, mayors, and other stakeholders were
solicited and considered as efforts were made to establish a new flood
risk reduction standard for Federally Funded Projects. The FFRMS is the
result of these efforts.
---------------------------------------------------------------------------
\77\ The White House, ``President Obama's Climate Action Plan,
2nd Anniversary Progress Report--Continuing to cut carbon,
pollution, protect American communities, and lead internationally.''
June 2015. https://www.whitehouse.gov/sites/default/files/docs/cap_progress_report_final_w_cover.pdf.
---------------------------------------------------------------------------
List of Subjects in 44 CFR Part 9
Flood plains and Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, FEMA proposes to amend
44 CFR part 9, as follows:
PART 9--FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS
0
1. The authority citation for part 9 is revised to read as follows:
Authority: E.O. 11988 of May 24, 1977. 3 CFR, 1977 Comp., p.
117; E.O. 11990 of May 24, 1977, 3 CFR, 1977 Comp. p. 121;
Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp.,
p. 329; E.O. 12127 of March 31, 1979, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3 CFR, 1979
Comp., p. 412, as amended; 42 U.S.C. 5201; E.O. 13690, 80 FR 6425.
0
2. Revise Sec. 9.1 to read as follows:
Sec. 9.1 Purpose of part.
This regulation sets forth the policy, procedure, and
responsibilities to implement and enforce Executive Order 11988,
Floodplain Management, as amended, and Executive Order 11990,
Protection of Wetlands.
0
3. Amend Sec. 9.2 by revising paragraph (b)(3) to read as follows:
Sec. 9.2 Policy.
* * * * *
(b) * * *
(3) Reduce the risk of flood loss to life and property and improve
the resilience of communities and Federal assets against the impacts of
flooding based on the best-available and actionable science;
* * * * *
0
4. In Sec. 9.3:
0
a. Amend paragraph (a) by adding ``and was amended by Executive Order
13690, January 30, 2015,'' to the end of the phrase; and
0
b. Revise the third sentence of paragraph (d).
The revision reads as follows:
Sec. 9.3 Authority.
* * * * *
(d) * * * Section 2(d) of Executive Order 11988 and Section 3(c) of
Executive Order 13690 require issuance of new or amended regulations
and procedures to satisfy their substantive and procedural provisions.
* * *
0
5. In Sec. 9.4:
0
a. Add in alphanumeric order definitions for ``0.2 Percent Annual
Chance Flood,'' ``0.2 Percent Annual Chance Floodplain,'' ``1 Percent
Annual Chance Flood or Base Flood,'' ``1 Percent Annual Chance Flood
Elevation or Base Flood Elevation,'' ``1 Percent Annual Chance
Floodplain or Base Floodplain,'' and ``Associate Administrator;''
0
b. Remove the definitions of ``Base Flood'' and ``Base Floodplain;''
0
c. Revise the definition of ``Critical Action;''
0
d. Remove the definition of ``Emergency Actions;''
0
e. Add in alphabetical order definitions for ``Emergency Work,''
``Federal Flood Risk Management Standard (FFRMS),'' ``Federal Flood
Risk Management Standard Floodplain,'' ``FEMA Federally Funded
Project,'' and ``FIMA;''
0
f. Remove the definitions of ``Five Hundred Year Floodplain'' and
``FIA,''
0
g. Revise the definition of ``Floodplain;''
0
h. Remove the definition of ``Mitigation Directorate;''
0
i. Add in alphabetical order a definition for ``Nature-Based
Approaches;'' and
0
j. Revise the definitions of ``New Construction,'' ``Orders,'' and
``Substantial Improvement.''
The additions and revisions read as follows:
Sec. 9.4 Definitions.
0.2 Percent Annual Chance Flood means the flood which has a 0.2
percent
[[Page 57433]]
chance of being equaled or exceeded in any given year.
0.2 Percent Annual Chance Floodplain means the area subject to
flooding by the 0.2 percent annual chance flood.
1 Percent Annual Chance Flood or Base Flood means the flood that
has a 1 percent chance of being equaled or exceeded in any given year.
1 Percent Annual Chance Flood Elevation or Base Flood Elevation
means the computed elevation to which floodwater is anticipated to rise
during the 1 percent annual chance or base flood. The specific term
``base flood elevation'' or BFE is used in the National Flood Insurance
Program (NFIP) and shown on FEMA Flood Insurance Rate Maps (FIRMs) and
on the flood profiles in the FEMA Flood Insurance Study (FIS) Reports
to indicate the minimum level of flooding to be used by a community in
its floodplain management regulations.
1 Percent Annual Chance Floodplain or Base Floodplain means the
area subject to flooding by the 1 percent annual chance or base flood.
* * * * *
Associate Administrator means the Associate Administrator of the
Federal Insurance and Mitigation Administration.
* * * * *
Critical Action means an action for which even a slight chance of
flooding is too great. Critical actions include, but are not limited
to, those which create or extend the useful life of structures or
facilities:
(1) Such as those which produce, use or store highly volatile,
flammable, explosive, toxic or water-reactive materials;
(2) Such as hospitals and nursing homes, and housing for the
elderly, which are likely to contain occupants who may not be
sufficiently mobile to avoid the loss of life or injury during flood
and storm events;
(3) Such as emergency operation centers, or data storage centers
which contain records or services that may become lost or inoperative
during flood and storm events; and
(4) Such as generating plants, and other principal points of
utility lines.
* * * * *
Emergency Work means work essential to save lives and protect
property and public health and safety performed under sections 403 and
502 of the Robert T. Stafford Disaster Relief and Emergency Assistance
Act of 1988 (42 U.S.C. 5170b and 5192). See 44 CFR part 206, subpart C.
* * * * *
Federal Flood Risk Management Standard (FFRMS) means the Federal
flood risk management standard established by Executive Order 13690 to
be incorporated into existing processes used to implement Executive
Order 11988.
Federal Flood Risk Management Standard (FFRMS) Floodplain means the
floodplain established using one of the following approaches:
(1) Climate-Informed Science Approach (CISA)--the elevation and
flood hazard area that result from using a climate-informed science
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. This approach will also include an
emphasis on whether the action is a critical action as one of the
factors to be considered when conducting the analysis;
(2) Freeboard Value Approach (FVA)--the elevation and flood hazard
area that result from using the freeboard value, reached by adding an
additional 2 feet to the base flood elevation for non-critical actions
and by adding an additional 3 feet to the base flood elevation for
critical actions;
(3) 0.2 Percent Annual Chance Flood Approach (0.2PFA)--the area
subject to flooding by the 0.2 percent annual chance flood; or
(4) The elevation and flood hazard area that result from using any
other method identified in an update to the FFRMS.
FEMA Federally Funded Project means actions where FEMA funds are
used for new construction, substantial improvement, or to address
substantial damage to a structure or facility.
* * * * *
FIMA means the Federal Insurance and Mitigation Administration.
* * * * *
Floodplain means the lowland and relatively flat areas adjoining
inland and coastal waters. The floodplain may be more specifically
identified as the 1 percent annual chance (base) floodplain, the 0.2
percent annual chance floodplain, or the FFRMS floodplain.
``Floodplain'' does not include areas subject only to mudflow until
FIMA adopts maps identifying ``M'' Zones.
* * * * *
Nature-Based Approaches means the features (sometimes referred to
as ``green infrastructure'') designed to mimic natural processes and
provide specific services such as reducing flood risk and/or improving
water quality. Nature-based approaches are created by human design (in
concert with and to accommodate natural processes) and generally, but
not always, must be maintained in order to reliably provide the
intended level of service.
New Construction means the construction of a new structure or
facility or the replacement of a structure or facility which has been
totally destroyed.
* * * * *
Orders means Executive Order 11988, Floodplain Management, as
amended by Executive Order 13690, and Executive Order 11990, Protection
of Wetlands.
* * * * *
Substantial Improvement means any repair, reconstruction or other
improvement of a structure or facility, which has been damaged in
excess of, or the cost of which equals or exceeds, 50% of the market
value of the structure or replacement cost of the facility (including
all ``public facilities'' as defined in the Robert T. Stafford Disaster
Relief and Emergency Assistance Act of 1988) before the repair or
improvement is started, or if the structure or facility has been
damaged and is proposed to be restored, before the damage occurred. If
a facility is an essential link in a larger system, the percentage of
damage will be based on the relative cost of repairing the damaged
facility to the replacement cost of the portion of the system which is
operationally dependent on the facility. The term ``substantial
improvement'' does not include any alteration of a structure or
facility listed on the National Register of Historic Places or a State
Inventory of Historic Places.
* * * * *
0
6. In Sec. 9.5:
0
a. Revise paragraph (a)(3) and the last sentence in paragraph (c)
introductory text, and paragraphs (c)(1) through (12);
0
b. Remove paragraphs (c)(13) and (14);
0
c. Revise the last sentence of paragraph (d) introductory text,
paragraphs (d)(1) through (3), paragraph (d)(4) introductory text, the
second sentence of paragraph (e), paragraph (f)(1), paragraph (f)(2)
introductory text, and the fourth and fifth sentences of paragraph (g)
introductory text.
The revisions read as follows:
Sec. 9.5 Scope.
(a) * * *
(3) The amendments to this part incorporating the changes required
by Executive Order 13690 and the FFRMS apply to new actions commenced
on or after.
* * * * *
(c) * * * The provisions of these regulations do not apply to the
following (all references are to the
[[Page 57434]]
Robert T. Stafford Disaster Relief and Emergency Assistance Act of
1988, Public Law 93-288, as amended, except as noted):
(1) Assistance provided for emergency work essential to save lives
and protect property and public health and safety performed pursuant to
sections 403 and 502;
(2) Emergency Support Teams (section 303);
(3) Unemployment Assistance (section 410);
(4) Emergency Communications (section 418);
(5) Emergency Public Transportation (section 419);
(6) Fire Management Assistance (Section 420);
(7) Community Disaster Loans (section 417), except to the extent
that the proceeds of the loan will be used for repair of facilities or
structures or for construction of additional facilities or structures;
(8) The following Federal Assistance to Individuals and Households
Program (section 408) categories of financial assistance:
(i) Housing needs or expenses, except for restoring, repairing or
building private bridges, purchase of mobile homes and provision of
structures as minimum protective measures;
(ii) Personal property needs or expenses;
(iii) Transportation expenses;
(iv) Medical/dental expenses;
(v) Funeral expenses;
(vi) Flood insurance premium;
(vii) Temporary Housing.
(9) Use of existing resources in the temporary housing assistance
program [section 408], except that Step 1 (Sec. 9.7) shall be carried
out;
(10) Debris removal (section 407), except those grants involving
non-emergency disposal of debris within a floodplain or wetland;
(11) Repairs or replacements under section 406, of less than $5,000
to damaged structures or facilities;
(12) Placement of families in existing resources and Temporary
Relocation Assistance provided to those families so placed under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, Public Law 96-510.
(d) * * * The references are to the Robert T. Stafford Disaster
Relief and Emergency Assistance Act of 1988, Public Law 93-288, as
amended.
(1) Actions performed under the Federal Assistance to Individuals
and Households Program (section 408) for restoring or repairing a
private bridge, except where two or more individuals or families are
authorized to pool their grants for this purpose.
(2) Small project grants (section 422), except to the extent that
Federal funding involved is used for construction of new facilities or
structures.
(3) Replacement of building contents, materials and equipment.
(sections 406 and 422).
(4) Repairs under section 406 to damaged facilities or structures,
except any such action for which one or more of the following is
applicable:
* * * * *
(e) * * * This finding will be made in consultation with the
Federal Insurance and Mitigation Administration and the Council on
Environmental Quality as provided in section 2(d) of Executive Order
11988. * * *
(f) The National Flood Insurance Program (NFIP). (1) Most of what
is done by FIMA in administering the National Flood Insurance Program
is performed on a program-wide basis. For all regulations, procedures
or other issuances making or amending program policy, FIMA shall apply
the 8-step decision-making process to that program-wide action. The
action to which the 8-step process must be applied is the establishment
of programmatic standards or criteria, not the application of
programmatic standards or criteria to specific situations. Thus, for
example, FIMA would apply the 8-step process to a programmatic
determination of categories of structures to be insured, but not to
whether to insure each individual structure. The two prime examples of
where FIMA does take site specific actions which would require
individual application of the 8-step process are property acquisition
under section 1362 of the National Flood Insurance Act of 1968, as
amended, and the issuance of an exception to a community under Sec.
60.6(b) of this chapter.
(2) The provisions set forth in this regulation are not applicable
to the actions enumerated below except that the FIMA Associate
Administrator shall comply with the spirit of the Orders to the extent
practicable:
* * * * *
(g) * * * The references are to the Robert T. Stafford Disaster
Relief and Emergency Assistance Act of 1988, Public Law 93-288. The
above requirements apply to repairs, under section 406, between $5,000
and $25,000 to damaged structures of facilities except for:
* * * * *
0
7. In Sec. 9.6, in paragraph (b), revise Step 1 to read as follows:
Sec. 9.6 Decision-making process.
* * * * *
(b) * * *
Step 1. Determine whether the proposed action is located in a
wetland and/or a floodplain; and whether it has the potential to affect
or be affected by a floodplain or wetland (see Sec. 9.7);
* * * * *
0
8. In Sec. 9.7, revise paragraphs (a), (b), and (c) to read as
follows:
Sec. 9.7 Determination of proposed action's location.
(a) The purpose of this section is to establish Agency procedures
for determining whether any action as proposed is located in or affects
a floodplain or a wetland.
(b) Information needed. (1) The Agency shall obtain enough
information so that it can fulfill the requirements of the Orders to:
(i) Avoid floodplain and wetland locations unless they are the only
practicable alternatives; and
(ii) Minimize harm to and within floodplains and wetlands. In all
cases, FEMA shall determine whether the proposed action is located in a
floodplain or wetland. In the absence of a finding to the contrary,
FEMA may assume that a proposed action involving a facility or
structure that has been flooded is in the floodplain. Information about
the 1 percent annual chance (base) floodplain, 0.2 percent annual
chance floodplain, and FFRMS floodplain and location of floodways and
coastal high hazard areas may also be needed to comply with these
regulations, especially Sec. 9.11.
(2) The following additional flooding characteristics shall be
identified by the Regional Administrator as appropriate:
(i) Velocity of floodwater;
(ii) Rate of rise of floodwater;
(iii) Duration of flooding;
(iv) Available warning and evacuation time and routes;
(v) Special problems:
(A) Levees;
(B) Erosion;
(C) Subsidence;
(D) Sink holes;
(E) Ice jams;
(F) Debris load;
(G) Pollutants;
(H) Wave heights;
(I) Groundwater flooding;
(J) Mudflow.
(c) Floodplain determination. (1) In making the floodplain
determination, FEMA shall follow this sequence:
(i) Determine whether the project is a FEMA Federally Funded
Project as defined in Sec. 9.4. If the project is a FEMA Federally
Funded Project, FEMA shall establish the FFRMS floodplain and
[[Page 57435]]
associated flood elevation by using one of the following approaches:
(A) Climate-Informed Science Approach (CISA): The elevation and
flood hazard area that result from using a climate-informed science
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. This approach will also include an
emphasis on whether the action is a critical action as one of the
factors to be considered when conducting the analysis;
(B) Freeboard Value Approach (FVA): The elevation and flood hazard
area that result from using the freeboard value, reached by adding an
additional 2 feet to the base flood elevation as determined using the
process defined in paragraph (c)(1)(iii) of this section for non-
critical actions and by adding an additional 3 feet to the base flood
elevation as determined in paragraph (c)(1)(iii) of this section for
critical actions;
(C) 0.2 Percent Annual Chance Flood Approach (0.2PFA): The area
subject to flooding by the 0.2 percent annual chance flood; or
(D) The elevation and flood hazard area that result from using any
other method identified in an update to the FFRMS.
(ii) Notwithstanding any other provision of FEMA regulations, FEMA
may select among and prioritize the approaches in paragraph (c)(1)(i)
of this section by separate policy. In addition, FEMA may provide an
exception to using the FFRMS floodplain for FEMA Federally Funded
Projects and instead use the 1 percent annual chance (base) floodplain
for non-critical actions or the 0.2 percent annual chance floodplain
for critical actions where the action is in the interest of national
security, where the action is an emergency action, where application to
a Federal facility or structure is demonstrably inappropriate, or where
the action is a mission-critical requirement related to a national
security interest or an emergency action.
(iii) If the project is not a FEMA Federally Funded Project as
defined in Sec. 9.4, FEMA shall use, at a minimum, the 1 percent
annual chance floodplain for non-critical actions and the 0.2 percent
annual chance floodplain for critical actions. FEMA shall establish the
floodplain and associated elevation by following this sequence:
(A) The Regional Administrator shall consult the FEMA Flood
Insurance Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and
the Flood Insurance Study (FIS).
(B) If a detailed map (FIRM or FBFM) is not available, the Regional
Administrator shall consult a FEMA Flood Hazard Boundary Map (FHBM). If
data on flood elevations, floodways, or coastal high hazard areas are
needed, or if the map does not delineate the flood hazard boundaries in
the vicinity of the proposed site, the Regional Administrator shall
seek the necessary detailed information and assistance from other
sources, such as the following Sources of Maps and Technical
Information:
(1) U.S. Department of Agriculture: Natural Resources Conservation
Service;
(2) Department of Defense: U.S. Army Corps of Engineers;
(3) Department of Commerce: National Oceanic and Atmospheric
Administration;
(4) Department of Homeland Security: FEMA;
(5) Department of the Interior: Bureau of Reclamation; U.S. Fish
and Wildlife Service; United States Geological Survey;
(6) Tennessee Valley Authority;
(7) Department of Transportation;
(8) Environmental Protection Agency;
(9) General Services Administration; or
(10) States and Regional Agencies.
(C) If the sources listed do not have or know of the information
necessary to comply with the Orders' requirements, the Regional
Administrator shall seek the services of a Federal or other engineer
experienced in this type of work.
(2) If the determination of the floodplain involves an area or
location within extensive Federal or State holdings or a headwater
area, and an FIS, FIRM, FBFM, or FHBM is not available, the Regional
Administrator shall seek information from the land administering agency
before information and/or assistance is sought as described in
paragraph (c)(1)(iii)(B) of this section. If none of these sources has
information or can provide assistance, the services of an experienced
Federal or other engineer shall be sought as described in paragraph
(c)(1)(iii)(C) of this section.
* * * * *
0
9. In Sec. 9.8, revise paragraph (c)(5)(ii) to read as follows:
Sec. 9.8 Public notice requirements.
* * * * *
(c) * * *
(5) * * *
(ii) Based on the factors in paragraph (c)(3) of this section, a
map of the area or other identification of the floodplain and/or
wetland areas which is of adequate scale and detail so that the
location is discernible; instead of publication of such map, FEMA may
state that such map is available for public inspection, including the
location at which such map may be inspected and a telephone number to
call for information;
* * * * *
0
10. In Sec. 9.9:
0
a. In paragraph (b)(2), remove ``; and'' and add a period in its place
and add a sentence to the end of paragraph (b)(2);
0
b. Revise paragraph (d)(1);
0
c. Remove paragraph (d)(2);
0
d. Redesignate paragraph (d)(3) as paragraph (d)(2); and
0
e. Lift the suspension of paragraph (e)(6) and remove the paragraph.
The addition and revision read as follows:
Sec. 9.9 Analysis and reevaluation of practicable alternatives.
* * * * *
(b) * * *
(2) * * * In developing the alternative actions, the Agency shall
use, where possible, natural systems, ecosystem processes, and nature-
based approaches; and
* * * * *
(d) * * *
(1) The Agency shall not locate the proposed action in the
floodplain as established by Sec. 9.7(c) or in a wetland if a
practicable alternative exists outside the floodplain or wetland.
0
11. In Sec. 9.11:
0
a. Revise paragraph (c)(1);
0
b. Revise the first sentence of paragraph (d) introductory text, the
second sentence of paragraph (d)(2), and paragraphs (d)(3) and (d)(9);
0
c. Revise paragraphs (e)(1), (e)(2) introductory text, and (e)(2)(ii)
introductory text;
0
d. Revise the last sentence in the undesignated paragraph following the
National Flood Insurance Program address in paragraph (e)(3)(i)(E);
0
e. Revise paragraph (e)(3)(ii); and
0
f. Lift the suspension of paragraph (e)(4) and remove the paragraph.
The revisions read as follows:
Sec. 9.11 Mitigation.
* * * * *
(c) * * *
(1) Potential harm to lives and the investment at risk in the
floodplain as established in Sec. 9.7(c);
* * * * *
(d) * * * The Agency shall apply at a minimum, the following
standards to its actions to comply with the requirements of paragraphs
(b) and (c), of this section (except as provided in Sec. 9.5(c), (d),
and (g) regarding categories of partial or total exclusion). * * *
* * * * *
[[Page 57436]]
(2) * * * There shall be no construction of a new or substantially
improved structure in a coastal high hazard area unless it is elevated
on adequately anchored pilings or columns, and securely anchored to
such piles or columns so that the lowest portion of the structural
members of the lowest floor (excluding the pilings or columns) is
elevated to or above the FFRMS floodplain.* * *
(3) Elevation of structures. (i) There shall be no new construction
or substantial improvement of structures unless the lowest floor of the
structures (including basement) is at or above the level of the FFRMS
floodplain.
(ii) There shall be no new construction or substantial improvement
of structures involving a critical action unless the lowest floor of
the structure (including the basement) is at or above the level of the
FFRMS floodplain.
(iii) If the subject structure is nonresidential, FEMA may, instead
of elevating the structure, approve the design of the structure and its
attendant utility and sanitary facilities so that below the flood level
the structure is water tight with walls substantially impermeable to
the passage of water and with structural components having the
capability of resisting hydrostatic and hydrodynamic loads and effects
of buoyancy.
(iv) The provisions of paragraphs (d)(3)(i), (ii), and (iii) of
this section do not apply to the extent that the Federal Insurance and
Mitigation Administration has granted an exception under Sec. 60.6(b)
of this chapter (formerly 24 CFR 1910.6(b)), or the community has
granted a variance which the Regional Administrator determines is
consistent with Sec. 60.6(a) of this chapter (formerly 24 CFR
1910.6(a)). In a community which does not have a FIRM in effect, FEMA
may approve a variance from the standards of paragraphs (d)(3)(i),
(ii), and (iii) of this section, after compliance with the standards of
Sec. 60.6(a) of this chapter.
* * * * *
(9) In the replacement of building contents, materials and
equipment, the Regional Administrator shall require as appropriate,
disaster proofing of the building and/or elimination of such future
losses by relocation of those building contents, materials and
equipment outside or above the floodplain as established in Sec.
9.7(c).
(e) * * *
(1) The Federal Insurance and Mitigation Administration shall make
identification of all coastal high hazard areas a priority;
(2) Beginning October 1, 1981, the Federal Insurance and Mitigation
Administration of FEMA may only provide flood insurance for new
construction or substantial improvements in a coastal high hazard area
if:
* * * * *
(ii) The structure is rated by FEMA-FIMA based on a system which
reflects the capacity to withstand the effects of the 100-year
frequency flood including, but not limited to, the following factors:
* * * * *
(3)(i) * * *
(E) * * * Unless a property owner is seeking an adjustment of the
rate prescribed by FEMA-FIMA, this information need not be submitted.
(ii) FIMA shall notify communities with coastal high hazard areas
and federally related lenders in such communities, of the provisions of
this paragraph. Notice to the lenders may be accomplished by the
Federal instrumentalities to which the lenders are related.
* * * * *
0
12. In Sec. 9.13,
0
a. Revise paragraph (d)(1) and the first sentence of paragraph (d)(3)
introductory text;
0
b. Add a sentence to the end of paragraph (d)(4)(i); and
0
c. Revise the first sentence of paragraph (d)(4)(ii), and revise
paragraph (e).
The revisions and addition read as follows:
Sec. 9.13 Particular types of temporary housing.
* * * * *
(d) * * *
(1) The temporary housing action shall be evaluated in accordance
with the provisions of Sec. 9.7 to determine if it is in or affects
the 1 percent annual chance (base) floodplain or wetland.
* * * * *
(3) An individual or family shall not be housed in the 1 percent
annual chance (base) floodplain or wetland unless the Regional
Administrator has complied with the provisions of Sec. 9.9 to
determine that such site is the only practicable alternative. * * *
* * * * *
(4) * * *
(i) * * * Actual elevation levels will be based on manufacturer
specifications and applicable Agency guidance.
(ii) No mobile home or readily fabricated dwelling may be placed if
such placement is inconsistent with the criteria of the National Flood
Insurance Program (44 CFR parts 59-60) or any more restrictive Federal,
State, or local floodplain management standard. * * *
* * * * *
(e)(1) FEMA shall not sell or otherwise dispose of mobile homes or
other readily fabricated dwellings which would be located in floodways
or coastal high hazard areas. FEMA shall not sell or otherwise dispose
of mobile homes or other readily fabricated dwellings which would be
located in floodplains or wetlands unless there is full compliance with
the 8-step process. Given the vulnerability of mobile homes to
flooding, a rejection of a non-floodplain location alternative and of
the no-action alternative shall be based on--
(i) A compelling need of the family or individual to buy a mobile
home for permanent housing; and
(ii) A compelling requirement to locate the unit in a floodplain.
(2) FEMA shall not sell or otherwise dispose of mobile homes or
other readily fabricated dwellings in the FFRMS floodplain unless they
are elevated at least to the level of the FFRMS floodplain.
(3) The Regional Administrator shall notify the Assistant
Administrator for Mitigation of each instance where a floodplain
location has been found to be the only practicable alternative for a
mobile home sale.
0
13. In Sec. 9.17, revise the first sentence of paragraph (a) and
paragraph (b) introductory text to read as follows:
Sec. 9.17 Instructions to applicants.
(a) * * * In accordance with Executive Orders 11988, as amended,
and 11990, the Federal executive agencies must respond to a number of
floodplain management and wetland protection responsibilities before
carrying out any of their activities, including the provision of
Federal financial and technical assistance. * * *
(b) Responsibilities of Applicants. Based upon the guidance
provided by the Agency under Sec. 9.16, that guidance included in the
U.S. Water Resources Council's ``Guidelines for Implementing Executive
Order 11988, Floodplain Management, and Executive Oder 13690,
Establishing a Federal Flood Risk Management Standard and a Process for
Further Soliciting and Considering Stakeholder Input,'' and based upon
the provisions of the Orders and this regulation, applicants for Agency
assistance shall recognize and reflect in their application:
* * * * *
0
14. In Sec. 9.18, revise the second sentence of paragraph (b)(1) and
the first
[[Page 57437]]
sentence of paragraph (b)(2) to read as follows:
Sec. 9.18 Responsibilities.
* * * * *
(b) * * *
(1) * * * When a decision of a Regional Administrator relating to
disaster assistance is appealed, the Associate Administrator for FIMA
may make determinations under these regulations on behalf of the
Agency.
(2) Prepare and submit to the Office of Chief Counsel reports to
the Office of Management and Budget in accordance with section 2(b) of
Executive Order 11988, as amended, and section 3 of Executive Order
11990. * * *
Appendix A to Part 9 [Removed]
0
15. Remove appendix A to part 9.
Dated: August 15, 2016.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2016-19810 Filed 8-19-16; 8:45 am]
BILLING CODE 9111-66-P
